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Empowered to sue on behalf of a deceased

almost 3 years ago DenningMR



This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

The Federal Court dismissed private investigator P Balasubramaniam's widow A Santamil Selvi's appeal. The appeal was to reinstate her RM1.9 million suit against Prime Minister Najib Abdul Razak, his wife Rosmah Mansor and five others. The suit was filed on behalf of P Balasubramaniam (deceased).

Many have commented on the independent media portals about the Federal Court's decision. Here are some interesting comments:

  • "Santhamil, the wife of the late Bala, is his next of kin. How can she get the letter of administration to manage his estate? He is already dead, isn't he? Can the federal court show and explain to the greater Rakyat how she can proceed to claim her rights in this episode? If not her, who can proceed to do it? This judgment will set precedent to other likely cases. Please explain, Judge Hasnah"
  • "What is the joke; wife is next of kin; what letter required?"
  • "Such a lame excuse to dismiss the appeal. This is on technicalities. So it appears there is no justice in Malaysia"
  • "Stupid as it is. If a deceased do not have property to be transferred, would his wife get a letters of administration? By virtue she is Bala's wife, it will suffice to have locus standi as next of kin. The legal world will laugh at this judgment."

It would seem that injustice has been done to the plaintiffs BUT what is the law regarding suing on behalf of a deceased?

When a person dies, after the funeral matters have been concluded, the family needs to administer the estate of the deceased.

Firstly, it must be asked whether the deceased passed away with a will or without a will. If one passes away intestate (without a will) then the law is as stated in the case of Ingall v Moran [1944] 1 KB 160:

An administrator is, of course, in a different position, for his title to sue depends solely on the grant of administration. It is true that, when a grant of administration is made, the intestate’s estate, including all choses in action, vests in the person to whom the grant is made, and the title thereto then relates back to the date of the intestate’s death, but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ. - Luxmoore LJ

In the case of Chor Phaik Har v Farlim Properties Sdn Bhd the Federal Court held that:

“ ... in law a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter’s estate is complete and distribution made according to the law of distribution of the intestate estate ...”

It has since been followed by the Court of Appeal in Manian Kandasamy v PTD Raub & Anor [2011] 7 CLJ 58

In short, the plaintiff must have obtained letters of administration at the point in time when the action was commenced. The letters of administration cloaks the plaintiff with authority to act on behalf of the deceased. Without that, the plaintiff has no locus standi to sustain a suit on behalf of the deceased.

So is there any miscarriage of justice? Frankly, no. The merits of the suit has not been heard. The issue of res judicata (the principle that a matter may not, generally, be re-litigated once it has been judged on the merits) may not arise. The plaintiffs can file another suit once they have obtained letters of administration. But then again, UK courts have held that if a case was dismissed due to lack of diligence, it would be an abuse of the court process to file the same claim again.

Well, Mr Bumble ... the law is not such an ass but perhaps the lawyer might have been.