Can you sue the dead?

This article addresses the issue of whether a person can still commence or maintain a claim against another person who has passed on.

Introduction

Sometime in 2021, John needed money to pay off some of his business expenses.  

Mark offered a friendly loan to John, subject to the condition that repayment be made by January 2023.  

John’s business thrived in early 2022.  However, months before the loan was due for repayment, John passed away from a heart attack.

No letter of administration or probate was taken out against John’s estate.

Can Mark now file an action to recover the loan?

The Law

A person can commence or maintain an action in court against the estate of a deceased person, even if no letter of administration or probate has been granted, by making an application under O. 15, r. 6A of the Rules of Court, 2012. 

The reasoning behind the law

Prior to the introduction of O. 15, r. 6A of the Rules of the High Court, 1980 (now, O. 15, r. 6A of the Rules of Court, 2012), an action by or against the estate of a deceased person could not be commenced or maintained until letters of administration were extracted [see: Yong Siew Choon v Kerajaan Malaysia [2003] 2 MLJ 150 (“Yong Siew Choon case”)].  

O. 15, r. 6A of the Rules of the High Court, 1980 enables the plaintiff to commence an action against the estate of a deceased defendant, even when  no grant of probate or administration has been made in respect of the estate.

The reasoning behind the introduction of O. 15, r. 6A of the Rules of the High Court, 1980 has been highlighted by the Federal Court at paragraphs 50 and 51 of Poraviappan a/l Arunasalam Pillay (suing as administrator of estate of the late Nadarajah a/l Sithambaram Pillai) v Periasamy a/l Sithambaram Pillai & Ors (on behalf of personal representatives of the estate of Ponnamal a/p Ramasamy the deceased) [2015] 4 MLJ 285) (“Poraviappan case”):-

1. naturally, an action against the estate of a deceased person is an action in personam – an action directed specifically to a particular person, whether natural or artificial;
2. where the said person has met their demise, there  is no person (in law) to sue, UNLESS, a letter of administration or probate is granted to appoint a person to represent the deceased person’s estate;
3. conflict arises when no letter of administration or probate has been applied for and extracted, creating a bottleneck in the distribution of the deceased person’s estate  and/or the disposal of claims against or by the deceased person;
4. to overcome this, O. 15, r. 6A of the Rules of the High Court, 1980  was introduced (predecessor to O. 15, r. 6A of the Rules of the High Court, 2012), thereby obviating the need for such personal representative to be appointed via letter of administration or probate. This enables a party to claim against the estate of the deceased person through the personal representative so appointed;
5. an application under this provision may also be filed “…without first ascertaining the administrator or executor of the estate and obviates the risk of [statutory time] limitation setting in…”.

Effects of an order granted under O. 15, r. 6A of the Rules of Court, 2012

Any order or judgment made in the action against the estate of the deceased person after an order has been granted pursuant to O. 15, r. 6A of the Rules of Court, 2012 will bind the estate of the deceased person. 

In other words, the entitlement of the beneficiaries of the deceased person’s estate under the relevant distribution law would be affected insofar as the order or judgment is concerned.

Nomination of a personal representative of the estate

An application under O. 15, r. 6A of the Rules of Court, 2012 must nominate a person to be appointed as the personal representative of the deceased person for the purpose of accepting service of the cause papers for the said action.

The High Court in Glen Lau Lian Seng v Personal Representative of Jeswant a/l Natarajan, deceased [2017] 11 MLJ 713 listed, at paragraphs 8 to 22, several factors (non-exhaustive and subject to the discretion of the court) that can be considered when  appointing a particular person to represent the estate of a deceased person, as follows:-

1. whether the person consents to the proposed appointment as the personal representative of the deceased person (the “nominated person”);
2. whether the plaintiff has provided any indemnity to the nominated person for any personal liability or expense which the said personal representative may incur in representing the estate of the deceased person;
3. whether the nominated person is a beneficiary of the estate; and
4. whether the nominated person was a next of kin, close with or in contact with the deceased person prior to their demise.

Mode and service of application

The application can be made ex-parte.  This means that the application can be filed and heard without giving prior notice to the other party on the said application.

There is also no requirement in the Rules of Court, 2012 which mandates the applicant to serve the application on every beneficiary of the deceased person’s estate prior to the hearing of the application [see: Hasiah Bt. Mat lwn Johana [2010] 7 MLJ 61].

Search on the deceased person prior to the application

Prior to making an application pursuant to O. 15, r. 6A of the Rules of Court, 2012, the applicant may consider conducting a search by issuing a letter containing the details of the deceased person to the Bahagian Surat Kuasa Mati at the Kuala Lumpur High Court to check whether a letter of administration or probate has been taken out on the said deceased person. This would also entail paying the fee for said search. 

This search will help determine whether an application under O. 15, r. 6A of the Rules of Court, 2012 is, indeed, necessary.  Otherwise, the action may be commenced or maintained as against the administrator or executor so appointed through the letter of administration or probate (if any).

Action commenced or maintained in breach of O. 15, r. 6A of the Rules of Court, 2012

The action may be struck out or dismissed if it is commenced or maintained in breach of O. 15, r. 6A of the Rules of Court, 2012. 

Non-compliance with O. 15, r. 6A of the Rules of Court, 2012 would render the action filed a nullity [see: paragraph 54 of the Poraviappan case] and any order or judgment obtained in the action may not be enforceable.

Are there causes of action which do not survive the demise of a deceased person?

There are, of course, exceptions to the above.  

The proviso to Section 8(1) of the Civil Law Act, 1956 provides that causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery do not survive the demise of a deceased person.

Conclusion

Death is not a destination, but a transition – the passing of a person does not dissolve their obligations; it simply shifts the means by which claims are pursued and alters how those obligations are enforced.  

Legal recourse remains available for resolving claims against a deceased person’s estate, even if the estate has not been formally administered, by applying under the aforementioned provision. 

Likewise, claims against wound-up, liquidated or dissolved companies may still be pursued, albeit under different provisions of law.

For any enquiries on any matters discussed in this article, you may contact any of the co-authors:-

Co-authored by:

NOTE: © Izral Partnership. The contents herein is intended to be for general information and reference only, and it does not, and is not intended to, constitute or substitute for legal advice. As the facts and circumstances of the various matters will differ from case to case, specific legal advice for each of such matters will invariably be required.