Ng Chii Chong v Ng Chii Shiang (WA-24NCvC-5246-11/2023)

The Applicant has filed this action because the Respondent has yet to transfer a property bequeathed to him even though Grant of Probate for the testator’s Estate had been issued to the Respondent more than four years ago on 25th November 2019.

After hearing both counsel on the first hearing date, I granted leave for both brothers to file further affidavits to elucidate all the relevant facts and figures about the assets and liabilities of the Estate as well as the expenditure incurred by the Respondent, to be supported by documentary evidence, for this Court to adjudicate on their dispute. They made full use of the leave granted, and filed further affidavits which thoroughly explained their respective grievances.

In response to the Applicant’s claim, the Respondent filed an action to claim payment from the Applicant. It was registered as Originating Summons No. WA-24NCVC-1422-04/2024 (“OS No.1422”).

In this case, I decided to allow the Applicant’s prayers to compel the Respondent to transfer the Applicant’s inheritance to him. However, I added a Stay Order, to be in force until the disposal of OS No.1422 or until the Applicant has paid a sum of RM102,000.00 into his solicitors’ account, to be held by the said solicitors as stakeholders to await the outcome of the said OS No.1422, whichever earlier. In other words, if the Applicant is unwilling to wait till OS No.1422 is adjudicated, he may receive the transfer of his inheritance early by paying RM102,000.00 into his solicitors’ account for the said solicitors to hold as stakeholders. My reason for issuing this Stay Order is to secure the Respondent’s rights until after disposal of the said OS No.1422. This is to do both brothers justice, in the interim. The details, with the reasons for my decision, are explained below. Background Facts [6] The testator in this case is one Mr.Ng Nai Chon (‘the deceased”) who died on 27th August 2019. In his will dated 19th December 2015, his eldest son Ng Chii Siang, who is the Respondent in this action, was named as his executor.

The will of the deceased documented his decision to bequeath all his real properties to his sons, leaving nothing for his wife. He also did not leave sufficient money to pay his debts and taxes.

The deceased, in his will, did bequeath the subject property to the Applicant. This was expressed in unequivocal terms in Clause (4) of the will.

In OS No.1422 filed by the Respondent, which shall be heard by another judge, the Respondent is seeking an order for the Applicant herein (the respondent in OS No.1422) to pay him as the executor of their late father’s Estate a sum of RM102,900.61 as contribution towards the costs and expenses incurred by him for the administration of the said Estate and maintenance of their mother. The Applicant’s Claim [10] The Applicant’s claim against the Respondent was simply to compel the Respondent, as the executor of the deceased’s Estate, to transfer the subject property to him. His prayers are as follows:

As is evident from his prayers, the Applicant was simply saying that since his late father had bequeathed a house to him, it must be transferred to him by the Respondent who is the executor.

The Applicant further averred that 5 reminders had been sent to the Respondent between 23rd August 2022 and 31st July 2023 but the Respondent continued to refuse to transfer the subject property to him, leaving him with no choice but to commence court proceedings to seek an order in terms of his prayers. The Respondent’s Position [13] The Respondent’s complaint could be summed up in one sentence: being an executor of his late father’s Estate is a thankless job. His late father did not leave sufficient money to pay off his debts, which included outstanding taxes and a debt of approximately RM176,000.00 owing to Public Bank Berhad. The Inland Revenue Board had entered Registrar’s Caveat on the subject property and he had to work on paying the debts 6 and clearing the tax issues before he could proceed further. He claimed that he had to advance money for the Estate. His grievances, as expressed in para 9 of his further affidavit, are as follows:

As for the subject property, the Respondent averred that he was actually ready to transfer it to the Applicant in April 2023 but due to a default by the existing tenants of the subject property in paying rent, he had to defer the transfer until after he has sued the tenants – so as not to lose his locus standi, as the executor of the Estate that owns the property, to sue the tenants. These averments are found in paras 12 and 18 of the Respondent’s affidavit which he affirmed on 8th December 2023. Those two paragraphs are pasted below for convenient reference:

It was also the Respondent’s stand that he had to advance money for the Estate because there was no money to support the testator’s widow – who is the mother of both the Applicant and Respondent. The Respondent takes the stand that money expended to keep their mother alive ought to be paid out from their late father’s Estate. He claimed that RM4,500.00 was advanced to their mother by him every month between January 2020 and March 2024, adding up to RM229,500.00.

The Respondent persuaded their mother (Madam Chong Soo Yin) to affirm an affidavit to support his defence. The old lady averred that the Respondent was the one and only child who has been supporting her since the demise of her late husband. As highlighted above, her husband’s will did not leave her a single Sen. Her name is not even mentioned in his will. Her words in paras 6 and 7 of her gloomy affidavit are as follows:

As alluded to above, OS No.1422 was filed by the Respondent, praying for, inter alia, an order to compel the Applicant herein (the respondent in OS No.1422) to contribute a sum of RM102,900.61 8 towards the costs and expenses incurred for the administration of the said Estate and maintenance of their mother. His main prayer reads as follows:

In the Respondent’s affidavit affirmed on 26th March 2024, he exhibited (as “NCS-2”) the calculations for his claim of RM102,900.61 against the Applicant. An excerpt of the relevant parts is reproduced below: Preliminary Objection Raised by the Respondent [19] There was a preliminary objection raised by learned counsel for the Respondent about the intitulement of the Originating Summons, submitting that it does not comply with the Rules of Court 2012.

On the Respondent’s preliminary objection, my findings are as follows. First, his solicitors failed to give prior notice of the preliminary 9 objection to the Applicant’s solicitors. Secondly, the Respondent was not misled by the intitulement as he clearly knew his brother was suing him because he has yet to transfer a property which was bequeathed to his brother even though Grant of Probate had been issued to him more than four years ago. Thirdly, there was no amendment required to clarify the intitulement. In any event, by having leave granted to file further affidavits – which he did – to elucidate his grievances, the Respondent was able to put forth his case thoroughly. Thus, I found the technical objection to be without merit and duly dismissed it. Analysis of the Facts and Law [21] First, it is undisputed that in his will, the deceased did bequeath the subject property to the Applicant. The unequivocal terms in Clause (4) of the will states:

Whilst a testator with full testamentary capacity is at liberty to bequeath his properties to whomever pleases him, his will is inhibited by the statutory prohibition in S.67(1)(a) of the Probate & Administration Act 1959 Act. It reads: “The property of a deceased person, to the extent of his beneficial interest therein, and the property of which a deceased person in pursuance of any general power disposes by his will, are assets for payment of his debts and liabilities, and any disposition by will inconsistent with this Act is void as against the creditors; and the Court shall, if necessary, administer the property for the purpose of the payment of debts and liabilities.” (emphasis added)0

In layman terms, a testator is prohibited by S.67(1)(a) of the Probate & Administration Act 1959 Act from using his will to dispose of his assets without paying his debts and liabilities. If he attempts to do, just as the Applicant’s father appeared to have innocuously done, the debts must be paid off first. Otherwise, his creditors can sue to invalidate the disposition of his assets to the beneficiaries named in his will.

It was undisputed that the Inland Revenue Board (“the IRB”) did cause a Registrar’s Caveat to be entered on the title of the subject property. However, it is also undisputed that this caveat had been removed two years ago in year 2022 – presumably after the Respondent, as executor of the Estate, had settled with the IRB.

I found that there was no serious dispute raised by the Respondent because he averred that he was actually ready to transfer it to the Applicant in April 2023. In other words, he was telling this Court that had there been no default by the tenants of the subject property in paying rent, he had no qualms about transferring the property to the Applicant.

The reason put forth by the Respondent to defer the transfer until after he has sued the tenants, so as not to lose his locus standi to sue the tenants as the executor of the Estate that owns the property, is legally tenable. However, for practical purpose, his decision was unsound because he was aware that the Applicant, as the beneficiary of the subject property, had directed the tenants to pay rent directly to him. The Respondent could have just transferred the subject property to the Applicant and leaves it to him to deal with the tenants instead of expending legal fees to sue the tenants for “outstanding rentals” of only RM8,000.

In my judgment, the Respondent’s delay and reluctance in transferring the subject property to the Applicant had more to do with his feeling that his brothers ought to contribute proportionately towards the costs and expenses incurred for the administration of the said Estate and maintenance of their mother.

Looking at the details of the Respondent’s claim, I have no doubt that part of his claim of RM102,900.61 against the Applicant would be allowed in OS No.1422 because he must have advanced money to comply with those laws which compel him to pay off the debts and liabilities of the Estate first and to delay distribution until provisions for taxes are adequately made.

Where taxes are concerned, the Respondent is bound by the onerous words of S.74 of the Income Tax Act 1967, which states: “(1) Where an individual dies in the basis year for a year of assessment, his executors shall be assessable and chargeable to tax for that year of assessment, for the following year of assessment and, whenever necessary, for any previous year of assessment in respect of the chargeable income of that individual for any such year of assessment; and, where they are so assessable and chargeable, they shall be assessable and chargeable to tax in like manner and to the like amount as the individual would be assessed and charged to tax if he had not died.

The executors of a deceased individual shall not distribute any of the assets of his estate unless they have made provision (in so far as they are able to do so out of those assets) for the payment in full of any tax which they know or might reasonably expect to be payable by them under this section.

Any executors who fail to comply with subsection (5) shall be jointly and severally liable to pay a penalty equal to the amount of the tax to which the failure relates.” [30] As cited above, S.67(1)(a) of the Probate & Administration Act 1959 Act requires the debts and liabilities of a testator to be paid first from his assets before the remaining assets could be distributed according to his will. In complying with S.67, an executor would have to add up the total debts and liabilities of the Estate. If money belonging to the Estate is insufficient to pay off the debts and liabilities, he is to apply a pro rata formula to calculate the contribution payable by the beneficiaries who are entitled to receive the real properties. Here, the Respondent, who has advanced money for the Estate, is entitled to claim from the beneficiaries before performing distribution in accordance with the will. Quaere: what are the items that an executor can legally claim contribution from the beneficiaries? This is one of the issues in OS No.1422. [31] En passant, I would state my doubts about the part of the Respondent’s claim of RM102,900.61 in OS No.1422 for contribution to support their mother because there is no filial-support law in Malaysia. In several foreign jurisdictions such as Bangladesh, China, India and neighbouring Singapore, laws have been enacted to create a statutory duty for adult children to support their parents who are unable to provide for themselves financially. In Singapore, their Maintenance of Parents Act of 1995 empowers the Court to order that money, either monthly allowance or in a lump sum, to be paid by adult children for the maintenance of their parents. Neglected parents in those jurisdictions can file a claim against their children. [32] In Malaysia, our folks need to have either sufficient savings or filial children. The deceased in this case did not even mention his wife’s name in his will. He must have either thought he would survive his wife or that his sons are filial enough to support their mother after his departure from this world. Alas, his omission to provide for his wife turns to out to be a depressing problem for her who survives him. [33] Reverting to the law, in the absence of a filial-support statute in Malaysia, can a Malaysian widow sue the estate of her late husband for monthly maintenance? If the deceased is still alive and had abandoned her, there is no doubt that his wife can seek maintenance from him. That is a legal right of a lawful wife, provided for under S.77(1) of the Law Reform (Marriage and Divorce) Act 1976 which states as follows: “The court may order a man to pay maintenance to his wife or former wife--

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;” This is, perhaps, one of the issues to be decided in OS No.1422. [34] I have not referred to the authorities cited by learned counsel because I found, with respect, that they are irrelevant for the purpose of adjudicating this case, especially when the Respondent has averred that he was ready to transfer the subject property to the Applicant. Based on the facts of this case, S.67(1)(a) of the Probate & Administration Act 1959 Act and S.74 of the Income Tax Act 1967 are sufficient to exonerate the Respondent for any delay, prior to 2023, in transferring the subject property to the Applicant. [35] The merits of OS No.1422 is for the learned judge who shall be hearing that action to decide. Here, I have no doubt that the Applicant’s application ought to succeed since the bequest of the subject property to him is unchallenged, the Registrar’s Caveat had already been removed in 2022 and the contribution sought from him by the Respondent has been ascertained. Thus, I would allow the prayers in the Applicant’s Originating Summons. [36] However, since the Respondent, who has advanced money for the Estate and expended much time to serve as the executor of his late father’s Estate, is entitled to claim from the beneficiaries, I decided, pursuant to the omnibus prayer in the Applicant’s Originating Summons for “such further order and reliefs deemed fit and beneficial by this honourable court”, that a Stay Order ought to be issued by this Court to do justice to both brothers. [37] The Stay Order is to stay the aforesaid order granted to the Applicant until the disposal of the said OS No.1422 or until the Applicant has paid a sum of RM102,000.00 into his solicitors’ account, to be held by the said solicitors as stakeholders to await the outcome of the said OS No.1422, whichever earlier. If the Applicant pays the sum of RM102,000.00 as stake money to secure the Respondent’s claim in the pending OS No.1422, he may receive the transfer of his inheritance early. The stake money of RM102,000.00 (if paid in by the Applicant) will be paid out in the future depending on the decision of the learned judge who adjudicates OS No.1422. I have ordered a sum of RM102,000.00 instead of the higher sum of RM102,900.61 claimed by the Respondent because RM102,000.00 would be more than sufficient to meet the Respondent’s claim – which includes a weak component based on filial piety. If the Counsel for the Applicant: Faeq Bin Fuad (Ammar Bin Ghalip with him) SOLICITORS FOR THE APPLICANT: MESSRS AMIN-TAN & CO. Advocates & Solicitors No. 11, 11-1 & 11-2, Jalan Pantai Murni 6, Pantai Dalam, 59200 KUALA LUMPUR. Counsel for the Respondent: Richard Ho SOLICITORS FOR THE RESPONDENT: MESSRS CHAMBERS OF RICHARD HO & YAP Advocates & Solicitors Suite 20-10-20th Floor, Wisma UOA II, No 21, Jalan Pinang 50450 KUALA LUMPUR LEGISLATIONS’ REFERRED:

S.67(1)(a) of the Probate & Administration Act 1959 Act.

S.74 of the Income Tax Act 1967.

Maintenance of Parents Act of 1995 of Singapore.

S.77(1) of the Law Reform (Marriage and Divorce) Act 197.