- 死者的女儿以及父亲(原告) 想通过法庭申请分配死者的遗产；然而死者儿子不同意执行这个遗产分配。
- 原告通过法庭发出原诉传票(originating summons)，要求死者儿子回应愿意接受或拒绝被授予遗产管理权；或者说明为何原告无权得到遗产管理权。
- 这充其量是个“不完整的赠予/imperfect gift”。法庭不会去支持任何一个不完整的赠予。 Milroy v Lord  45 ER 1185.
- Chew Choon Ming (the deceased) died on 5.6.2000. He died intestate leaving three beneficiaries to his estate. They are his natural children, daughter Chew Mei Lin and son Chew Pit King, and his father Chew Yuen Sinn. His father died on 2.1.2003. The deceased also had a mistress, Madam Hue Chooi Yin. They have two children, Chew Mei Chun and Chew Pit Tian. Madam Hue Chooi Yin and her children had taken legal proceedings against the deceased’s natural children relating to the estate of the deceased. On 21.1.2014 Chew Mei Lian filed a caveat pursuant to Order 71 rule 37 of the Rules of Court 2012 (ROC) to ensure that there be no letters of administration (LA) to the estate of the deceases is granted without notice to her.
- The first applicant is Chew Mei Lin appointed Attorney pursuant to the Power of Attorney registered on 4.2.2014 at the High Court of Kuala Lumpur bearing registration no. 9500/14. The second applicant is the executor of the estate of Chew Yuen Sinn pursuant to the Grant of Probate dated 20.6.2013 (“the Applicants”).
- On 14.7.2014 the applicants filed this Originating Summons (OS) to request that LA to the estate whlch includes both moveable and immovable assets in the name of the deceased, be granted to them.
- Shortly after the filing of the OS, Chew Pit King, Yum Shirley and Chung Onn Soon (“Interveners”) filed an application on 19.8.2014 to Intervene (encl.5). The application was premised on the grounds that notwithstanding the applicants’ entitlement under the Probate and Administration Act 1959 to be read with the Distribution Act 1958, they do not have any interest in the estate as Chew Mei Lin had by a statutory declaration dated 12.8.2000 renounced her rights and interest to the estate and the deceased had created an inter vivos trust for his estate for the benefit of Baltiangong Universal Spiritual Movement and the Interveners are the trustees appointed by the deceased. The deceased was said to have established the Baitiangong Universal Spiritual Movement in 1976 and was the spiritual leader of the said Movement until his demise. Encl. 5 was however withdrawn by the Interveners.
- Following the withdrawal, on 22.1.2015, the applicants took out a citation pursuant to Order 71 rule 41 (encl.11) calling on Chew Pit King to accept or refuse the LA of the estate of the deceased or to show cause why the same should not be granted to the applicants.
- Chew Pit King entered his appearance to the citation on 5.2.2015. He maintained his earlier stance as in the intervention application, that the citors’ have no right to the LA since the deceased had created an inter vivos trust for his estate.
- On 17.9.2015 Yum Shirley and 6 others filed an action in Kuala Lumpur High Court Civil Suit No: 22 NCVC-513- 09/2015 against Chew Pit King, Chew Mei Lian, Chung Onn Soon (Chew Yuen Sinn’s Executor) and the applicants seeking amongst others a declaration of the existence of an oral trust by the deceased of his estate. Yum Shirley had earlier on 25.6.2015 also lodged a caveat.
- I was to deliver decision on the citation and the OS when it came to light that there was caveat lodged by Yum Shirley.
- A warning then was issued to the caveator (Yum Shirley) pursuant to Order 71 rule 37(8). It was served on the caveator on 20.3.2017. The caveator entered appearance on 24.3.2017. The caveator again alleged the existence of an oral trust and there is pending the suit 22 NCVC-513-09/2015 as reasons why no grant of LA should be made.
- The crux of the caveator’s case is that there is in existence a voluntary, oral trust (amanah lisan) made by the deceased whereby the deceased had disposed of his estate to the three trustee. Thus, there cannot be any grant of LA.
- The law on the existence of an Inter vivos trust can be gleaned in Lee Eng The & Ors v The Thiang Seo Ng & Anor  1 MLJ 42:
“The next question to be considered is whether the promise made by the first defendant constituted a trust which is enforceable. Whether a trust is enforceable or not depends upon whether it is completely or an incompletely constituted trust. A trust is said to be completely constituted when the trust property has been vested in trustees for the benefit of the beneficiaries; until that has been done the trust is incompletely constituted. The distinction between completely and incompletely constituted trust is of importance principally with regard to the question of consideration. In other words, the questions to be considered is whether valuable consideration was given for the creation of trust. If valuable consideration is given in exchange for the creation of the trust, it does not matter whether the trust is completely constituted or not, for equity regards that as done and will perfect an imperfect conveyance for value by treating It as contract to convey. But there is no equity to perfect an imperfect a voluntary trust. As was said by Lord Eldon in Ellison v Ellison:
“I take the distinction to be , that if you want the assistance of the court to constitute a certui que trust, and the instrument is voluntary, you shall not have that assistance, for the purpose of constituting a cestui que trust, as upon a covenant to transfer stock, if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant, but if the party has completely transferred stock, though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court”. 如果你要法庭宣判一个信托，这个信托是自愿的，法庭是不会帮助你，宣判此信托是有效，让你将此股票转让给你。但是如果原本的主人自愿的转让此股票给你，并完成转让手续，此信托将被法庭承认是有效的。
The general principle applicable has been enunciated by Turner L.J. in Milroy v Lord, as follows:
“In order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual; and will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes …… But, in order to render the settlement binding, one or other of these modes must (as I understand the law of this court) be resorted to for there is no equity in this court to perfect an imperfect gift”.
“In the present case, of course, there is no question of any conveyance having been made. In other words, matters did not go so far as to lead up to what might be called an incompletely constituted trust. The first defendant did nothing more than make a gratuitous promise to donate land, so that there was no question of any incompletely constituted trust having arisen. the action against him, therefore, must fall.”
- The principles were illustrated again by the Court of Appeal in Lee Ing Chin & Ors v Gan Yook Chin & Anor  2 CLJ 19:
“We begin with the proposition that there are three and only three ways in which a gift inter vivos may be made. First, by an outright transfer of the property to the intended done. Second, by a transfer of the property absolutely to trustees to hold on trust for the donee. Third, by the owner declaring himself as trustee for the donee. An ineffective outright gift will not be saved by the court by construing it as a declaration of trust because “there is no equity in this court to perfect an imperfect gift”: Milroy v Lord  45 ER 1185. We find the decision in Jones v Lock  1 Ch. App 25 to be a ready illustration of the principle we have just stated.
It follows that an inter vivos gift that is not effected in one of the three ways aforesaid can only take effect either as testamentary gift under a will of a testator or pass under an intestacy. And if the donor intends to make a testamentary gift he must observe the requirements of the Wills Act. Here we would quote with approval the following passage from Scott’s leading work ‘The Law of Trusts”, 4th edn at p.94, which in our view correctly sets out the law:
The owner of property may intend to create a trust of the property, either by transferring it to another person as trustee or by declaring himself trustee of it. In either event, if the beneficiaries do not acquire any interest in the property prior to his death, the transaction is clearly testamentary and invalid unless there is a compliance with the requirements of the Statute of Wills. 如果死者生前赠与的产业不是以以上的3个方式送给受益人，那么他死后，此产业只能以遗嘱或者根据遗产分配赠与合法受益人。
Were it otherwise then it would be, in the words of Viscount Sumner in Blackwell v Blackwell  AC 318,339, “enable the testator to ‘give the go-bye’ to the requirements of the Wills Act, because he did not choose to comply with them”.
- On the facts of the case, what is made out is just that the deceased was said to have made the announcement on the creation of the trust for the benefit of the followers of his Movement. The caveator failed to show that the deceased, following the oral trust he had created, had actually made a conveyance or a transfer of his property to herself, Chew Pit King and Chung Onn Soon as trustees so as to constitute in law a completely constituted trust. Following the authorities mentioned above, it is imperative for the caveator to show that the declaration made by the deceased constituted a trust which is enforceable. An enforceable is a completely constituted trust whereby the trust property of the deceased have been vested in trustees for the benefit of the followers of the said Movement. And until that has been done, the trust is incompletely constituted. That there is such a conveyance or a transfer of the deceased’s property vested in the trustees was not deposed to by the caveator in her affidavits. The caveator has in my view only managed to show on affidavit evidence the existence incompletely constituted trust.
- Thus there is no grounds to retain the caveat. Other grounds cited by the caveator are in my view not sufficient enough to effectively support the retention of her caveat because all are related one way or the other to the alleged creation of the oral trust by the deceased.
- I make an order that the caveat be removed and cost of RM51,000.00 to be paid to the applicants. I did not however fix a date for the hearing of the OS and the citation because there is in existence at that point of time, a new caveat entered by the third plaintiff in 22 NCVC-513-09/2015, Phuan Kim Yean.
Source: Chew Choon Fatt & Anor v Yum Shirley  MLJU 862. High Court Kuala Lumpur. Nor Bee Ariffin J.
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