Gan Cheng Khuan v Gan Kah yang (W-02(NCVC)(A)-363-02/2018)

GAN KAH YANG

GAN KAH LIANG

GAN KAH HEONG (NRIC NO: 710708-10-5163) … RESPONDENTS [IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24NCvC-995-06/2017 BETWEEN GAN CHENG KHUAN (NRIC NO: 610616-10-6785/6268461) … APPLICANT

GAN KAH YANG

GAN KAH LIANG

GAN KAH HEONG (NRIC NO: 710708-10-5163) … INTERVENERS] CORAM UMI KALTHUM ABDUL MAJID, JCA SURAYA OTHMAN, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 2 of 10 JUDGMENT OF THE COURT The Appeal [1] The Appellant had filed an ex-parte Originating Summons (OS) which was subsequently amended. The Interveners applied for leave and were granted leave to intervene in the OS. The Interveners have filed an affidavit in opposition to the OS which excluded them as beneficiaries under the estate of Gan Cheng Keong (deceased). [2] In the OS the Appellant applied for the following declaratory orders that:

(a)

(b)

(c)

(d)

(e)

(a) the three interveners, being the issue of Cheng Yee are entitled to their respective shares in the estate of the deceased under subsection 7(1) of the Act; Page 5 of 10

(b) Cheng Yee's share in the estate of the deceased is not forfeited although he had predeceased the deceased, because Cheng Yee had left issue namely the three interveners;

(c) the issue of Soo Lian would also be entitled to his respective share in the estate of the deceased pursuant to subsection 6(1)(i) of the Act;

(d) the declarations sought in prayers (a), (c) and (d) of the OS are refused;

(e) the declaration sought in prayer (b) of the OS is allowed subject to the variation that the issue of Cheng Yee and Soo Lian are entitled to equal shares in the deceased's estate; and

(f) prayer (e) is allowed. The Appellant’s submission [9] The Appellant submitted that the learned JC had erred in his decision because subsection 7(1) of the Act applies only to situations where the estate of an intestate is directed to be held on trust for the issue of the intestate. It was submitted that the Respondents in this case are not the issues of the intestate or deceased but are the nephews. [10] The Appellant submitted that the learned JC had erred in misinterpreting subsection 7(1) of the Act because the 'intestate' in subsection 7(1) refers to the deceased, that is, the late Gan Cheng Keong and not Gan Cheng Yee, the late father of the Respondents. [11] It was submitted that although the Respondents sought to rely on subsection 7(2) of the Act to support their claim, the Appellant Page 6 of 10 contended that subsection 7(2) when read together with subsection 7(1) provided only a trust for the other class of relatives of the deceased (other than the issue of the deceased) who has not attained the age of majority. [12] Counsel for the Appellant submitted that by the decision of the learned JC, it would also mean that the nephews and nieces of the intestate will take in priority over the grandparents of the intestate, in the situation where all brothers and sisters of the intestate had predeceased the intestate but left behind issues and this cannot be the intention of the legislation. If it is the intention of the legislation that other classes of relatives of the intestate, other than the issue of the intestate, includes the issue of the members of that class of relatives, it ought to be specifically stated in the Act like how ‘issue’ is specifically defined in section 3 of the Act to include descendants of the deceased child. The Respondents’ submission [13] The Respondents contended that the issues of a sibling who had predeceased are entitled to the distribution pursuant to subsection 6(1)(i) and section 7 of the Act. It was submitted that sections 6 and 7 of the Act are drawn from the English Administration of Estate Act 1925 (1925 Act), wherein, those sections are in pari materia with sections 46 and 47 of the 1925 Act. [14] The Respondents submitted that the manner in which section 47 of the 1925 Act should be interpreted is guided in a book entitled “The Law and Practice of Intestate Succession (2nd Edition)”. They submitted that there are similar principles found in sections 40 and 47 Page 7 of 10 of the Indian Succession Act 1925 and in section 49 of the Wills, Probate and Administration Act 1898-1954 (N.S.W.). [15] It was submitted that based on these provisions and the decisions in those jurisdictions, the entitlement of nephews and nieces is not dependent upon a brother or sister of the intestate surviving the intestate. The Respondents argued that the issues of a sibling who had predeceased the intestate are entitled to the distribution pursuant to subsection 6(1)(i) and section 7 of the Act and therefore they are entitled to the distribution under the estate of their late uncle. The Court’s decision [16] We have read the provisions of sections 46 and 47 of the English 1925 Act and the provisions of sections 6 and 7 of our Act and we were unanimous in our conclusion that these provisions are not in pari materia with each other. Similarly, the provisions in the Indian and NSW legislations referred to by counsel for the Respondents are not in pari materia with sections 6 and 7 of our Act. Although they are similar they are not the same. Each piece of legislation must be read and interpreted on its own in accordance to established statutory interpretation principles. [17] The Respondents relied on sections 46 and 47 of the English 1925 Act in interpreting sections 6 and 7 of our Act. The distribution of the estate is determined by the priority on the entitlement to the estate as set out in the Act. [18] Under section 46(1)(v) of the 1925 Act, if the intestate leaves no spouse or civil partner and no issue and no parents, then the residuary Page 8 of 10 estate of the intestate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely; first for the brothers and sisters of the whole blood of the intestate, secondly for the brothers and sisters of the half blood, thirdly for the grandparents and so on. Under section 46(1)(v), which deals with other classes of relatives of the intestate, other than the children of the intestate, the residuary estate of the intestate shall be held on trust firstly for the brothers and sisters of the intestate living at the death of the intestate. The emphasis is on the words “living at the death of the intestate” and do not apply to and do not aid the Respondents’ case in this appeal because their late father predeceased and was not living at the death of the intestate. [19] Section 47(1) of the 1925 Act provides for statutory trusts to be held for the issue of the intestate, in equal shares, if more than one, living at the death of intestate, who attained the age of majority or marry under that age. It goes on to provide for all or any of the issue living at the death of the intestate, who attained the age of majority or marry under that age, of any child of the intestate who predeceases the intestate, such issue shall take the share which their parent would have taken if living at the death of the intestate. [20] Whereas section 47(3) deals with the statutory trusts for any class of relatives of the intestate, other than the issue or children of the intestate. Sections 46 and 47 clearly make a distinction between the issue, meaning the children, of the intestate and other classes of relatives of the intestate. Section 47(3) provides for the residuary estate to be held on trusts for any class of relatives of the intestate corresponding to the statutory trusts for the issue of the estate as if Page 9 of 10 such trusts were repeated with the substitution of references to the members of that class. [21] Now coming to the provisions of the Act itself, under subsection 6(1)(i) of the Act, if an intestate dies leaving no spouse, issue, parents or a parent, the whole of the estate of the intestate shall be held on trust for the following persons living at the death of the intestate and in the following order and manner, namely: firstly for the brothers and sisters of the intestate in equal shares, then for the grandparents and so on. The emphasis is on the words “living at the death of the intestate”: see HSBC (M) Trustee Bhd v Kong Kim Hoh & Ors [1999] 3 MLJ 383. [22] In this appeal, the father of the Respondents died on 27.1.1979 and was no longer living on 27.3.2009, at the death of the intestate. Their late father did not qualify under ‘the brothers and sisters of the intestate who were living at the death of the intestate’ pursuant to subsection 6(1)(i) of the Act. Therefore the Respondents cannot take under their late father’s share in the estate of the intestate under subsection 6(1)(i). [23] The Respondents had tried to come under subsection 7(1). Subsection (1) deals with trusts to be held for the issue of the intestate whereas subsection 7(2) provides for trusts in favour of other classes of relatives of the intestate. Both subsections of section 7 specifically refer to section 6 of the Act which means that both sections 6 and 7 must be read together. It is not in dispute that the Respondents are not the issue of the intestate but are the nephews of the intestate which come within ‘other classes of relatives’ of the intestate. If they Page 10 of 10 are taking a share under their late father’s entitlement in the estate of the intestate under section 7 of the Act, they are caught by subsection 6(1)(i). [24] For the reasons given, the appeal was allowed with no costs. The Order of the High Court dated 18.1.2018 in paragraphs 1 to 4 were set aside and the Amended OS in prayers (a), (b), (c) and (d) were allowed. Deposit was refunded to the Appellant. Dated: 14th September 2018 sgd STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellant : Justin Voon Tiam Yu and Chia Wen Chow Messrs. Chia Wen Chow & Associates For Respondents : Kevin Sathiaseelan, Leng Wie Mun and Farhanna Roslan Messrs. Kevin & Co.