- The plaintiff was the executor of the estate of Cory John Gray (‘the deceased’) whereas the defendant was the wife of the deceased by way of a customary marriage.
- The deceased had passed away leaving a will dated 04.08.2020.. Vide a grant of probate granted by the High Court of New Zealand, the plaintiff was appointed as the administrator of the deceased’s estate. The said grant of probate was later resealed by the High Court of Kuala Lumpur on 24.07.2013.
- The plaintiff as the administrator and executor of the estate of the deceased had intended to sell a house owned by the deceased but the defendant had refused to accede to the plaintiff’s request for vacant possession of the said house.
- Consequently, the plaintiff filed this originating summons seeking for an order of summary vacant possession of the said house pursuant to O 89 of the Rules of Court 2012 (‘the ROC’) (‘encl 1’).
- In resisting encl 1, the defendant submitted that both the defendant and her child were entitled to remain and stay in the said house because she was the wife of the deceased and the child was the deceased’s biological son. The defendant also submitted that the child was entitled to the deceased’s estate by virtue of cl 3 of the said will.
- Further, the defendant submitted that she had contributed to the purchase of the said house as the initial deposit of the said house amounting to RM13,440 was paid by her. In this regard, the plaintiff contended that in the sale and purchase agreement (‘the SPA’) of the house, the purchaser was the deceased alone and the defendant was not a party to the SPA’s transaction.
Held, allowing encl 1 with costs of RM5,000:
- The legal position of the requirement of solemnisation and registration of a marriage under the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’) to create a legal and binding matrimonial relationship between a man and wife is unequivocally clear. It was not disputed that the customary marriage claimed by the defendant was never solemnised and registered under the LRA. Based on the above findings, the court concluded that there was no valid marriage between the defendant and the deceased. Thus, the defendant could not claim that she was entitled to benefit from the deceased’s estate. In addition, since the customary marriage was not recognised by law, hence, the child was born out of wedlock and was an illegitimate child. Therefore, the child did not have any rights to the deceased’s estate.
- The documents produced by the defendant did not support her case. In the offer to purchase adduced by the defendant, the vendor was not the same vendor as in the SPA. The defendant’s personal cheque of RM13,440 did not support cl 2 of the offer to purchase as the amount to be paid on the date of the execution of the offer to purchase must be 10% of the purchase price ie RM44,800 and not RM13,440. Further, the official receipt issued by Low, Sunita & Ngoi to the defendant as acknowledgment of payment of RM13,440 by the defendant did not refer to the said house. The court found that the assertion of payment of the initial deposit towards the purchase of the said house by the defendant was a bare and baseless assertion.
- The will was executed more than two years after the customary marriage took place and after the child was born. If the deceased had intended to include the defendant’s name and her son, the deceased would have included their name in the said will. But this did not happen. Further, although the word ‘children’ was used in the said will, the material fact remained that there was no valid and legal marriage between the defendant and the deceased. Hence, the child was born out of wedlock and for all intent and purpose an illegitimate child.
- Based on the above reasons, the court concluded that there were indeed no triable issues raised by the defendant to deny the plaintiff’s right for an order under O 89 of the ROC.
Source: Maxwell John Gray (as administratortrustee for the estate of Cory John Gray, deceased) v Lim Siew Shun. High Court Shah Alam. Azimah Omar J.
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Civil Procedure — Summary possession of land — Order for — O 89 of the Rules of Court 2012 — Defendant refused to deliver vacant possession of house to plaintiff as executor and administrator of deceased’s estate — Plaintiff sought for order of summary possession of land — Whether defendant and her child entitled to stay and remain in house — Whether child entitled to deceased’s estate by virtue of the will — Whether defendant contributed to purchase of house — Whether plaintiff entitled for order under O 89 of the Rules of Court 2012 — Whether there was triable issue — Rules of Court 2012 O 89
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