1 This was an appeal against a decision of the High Court disallowing an amendment to the appellant`s writ and statement of claim and striking out the writ and the statement of claim for want of capacity on the part of the appellant to sue. At the conclusion of the hearing we allowed the appeal, reinstated the writ and statement of claim and gave leave to amend the writ and statement of claim and made other consequential orders. We now give our reasons.

2 The facts

3 The material facts were as follows. The appellant claimed that in 1952 she was married to one Theng Chee Khim (Theng) in Singapore according to Chinese customary rites, and from this marriage they had six children. On 31 December 1964, Theng purported to marry the respondent at the Registry of Marriages and thereafter set up home with the respondent and remained with her and his children by her until he passed away on 28 June 1995. He died intestate. The appellant claimed that the marriage between Theng and the respondent was a polygamous marriage, in violation of s 4 of the Women`s Charter (Cap 353), and was therefore invalid.

4 Soon after the death of Theng, the appellant applied for letters of administration to Theng`s estate, asserting that she was his lawful widow. She obtained a grant of letters of administration to the estate of Theng on 11 August 1995, but the grant has yet to be extracted.

5 On 30 August 1995 the appellant commenced an action in Suit 1500 of 1995 in the High Court against the respondent. She sued as the administratrix of the estate of Theng and sought, inter alia, a declaration that certain immovable property which had once stood in the name of the respondent in fact belonged to Theng and was held by the respondent on trust for the deceased. According to the statement of claim, the property concerned comprised the house known as No 25 Lorong 32 Geylang (the Lorong 32 property) which Theng bought in 1978 and the premises known as Nos 1/1A and 3/3A Lorong 33 Geylang (the Lorong 33 property) which he bought in 1973. The appellant asserted that although both properties were conveyed to the respondent, the consideration for their purchase was provided solely by Theng with no contribution from the respondent and that, therefore, the respondent held the same on a resulting trust for Theng. She sought an enquiry and account as regards the properties, and an order for the return of all properties held by the respondent on trust for Theng.

6 Both the properties had been sold. The Lorong 32 property was sold in April 1981 for $290,000 and the Lorong 33 property was sold in January 1995 for $2.65m. The claim by the appellant was principally directed at the proceeds of sale. The appellant alleged that the sale proceeds were held by the respondent on a resulting trust for Theng`s estate.

7 Upon the issue of the writ, the appellant applied ex parte for an interim injunction restraining the respondent from disposing or otherwise dealing with her assets. It was alleged that there was a serious likelihood of the sale proceeds and other assets being disposed of or dissipated pending the extraction of the grant of the letters of administration. In particular, the appellant deposed to her belief that the respondent had dealt with, and continued to deal with, the sale proceeds as if they were wholly her own. Her application succeeded and the injunction was granted on 30 August 1995. The injunction restrained the respondent from disposing of or dealing with any of her assets within Singapore up to a value of $3.5m. More specifically, the respondent was prohibited from dealing with the balance of the proceeds of sale of the properties, pending the determination of the beneficial ownership of such properties by the court. The respondent in turn filed a caveat against the appellant`s grant of the letters of administration, which will now be the subject of a contested probate action, No 1491 of 1995.

8 The respondent subsequently applied to the High Court to discharge the injunction, and also to strike out the appellant`s writ of summons and statement of claim. This was made on the basis that the appellant lacked the capacity to sue as she had not extracted the grant of letters of administration to the estate of Theng, and as such, the writ was a nullity. The application was heard before a judge in chambers. The learned judge accepted the respondent`s submission that the appellant had no capacity to sue as the administratrix of the estate of Theng as she had not extracted the grant of letters of administration and agreed that the interim injunction should be discharged. However, the learned judge suspended the order discharging the injunction until 11 October 1995 pending the filing of an affidavit by the respondent disclosing her assets to the court. At that stage, the learned judge also refrained from striking out the writ and statement of claim; she adjourned the hearing so as to afford the appellant an opportunity to consider whether she could maintain the action in some capacity other than that of an administratrix.

9 In the event, the appellant filed an application, as subsequently amended, in which she sought, inter alia, an order that she be appointed to represent for the purposes of that application her six children who might be beneficially interested in the estate of the deceased, and that she be at liberty to amend the writ of summons and statement of claim in the manner set forth in a proposed statement of claim attached to the application. The application came on for hearing before the learned judge. It was first heard on 11 October 1995, and at the conclusion the learned judge disallowed the application. Consequently, the appellant`s writ of summons and statement of claim were struck out, and the injunction was discharged.

10 Very soon thereafter the appellant`s then solicitors came to know of the recent decision of Chao Hick Tin J in Omar Ali bin Mohd & Ors v Syed Jafaralsadeg bin Abdulkadir Alhadad & Ors [1995] 3 SLR 388. They took the view that this decision provided support for their application, and on 7 November 1995, the appellant`s solicitors wrote to the Registrar requesting for further arguments. The learned judge acceded to the request and heard further arguments on 21 November 1995, but at the conclusion she affirmed her earlier decision. By then, the appellant was already out of time for filing the notice of appeal.

11 On 14 December 1995, the appellant filed a motion for an extension of time to file an appeal. The motion was granted by this court on 5 February 1996 and following that the appellant proceeded with the appeal against the decision of the learned judge.

12 Issues on appeal

13 The primary issue before us was whether the appellant qua a beneficiary of the estate of Theng was entitled to institute an action against the respondent to protect the assets of the estate of Theng. As beneficiaries of the estate of Theng, the appellant and her children have no equitable or beneficial interest in any particular asset comprised in that estate, which is as yet unadministered. This has been laid down by decisions of established authority, and we need to refer only to the case of Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694, which was a decision of the Privy Council on an appeal from the High Court of Australia. That case concerned the question of succession duty payable on the interest of the deceased`s wife in her husband`s estate. Under the will of the husband, the wife was entitled to one-third of the residuary estate of the husband. She died two years after her husband`s death and at the date of her death, her husband`s estate was still in the course of administration and the question arose whether the estate of the wife had an equitable interest in the estate of the husband. It was held that her estate had no such interest and therefore was not chargeable under the Queensland Succession and Probate Duties Acts 1892-1955. In the course of his judgment, Viscount Radcliffe said at p 713:

14 It does not follow from this that a beneficiary of an estate which is unadministered or under administration has no legal remedy. He or she may in certain circumstances institute action to recover assets of the estate. Viscount Radcliffe referred to cases in the equity courts in which a creditor or pecuniary or residuary legatee was allowed to follow and recover assets which had been improperly abstracted from an estate. His Lordship said at p 714:

15 The question is in what circumstances then could the appellant and her children seek to recover the assets of the estate of Theng. On this question it is relevant to refer to the case of Hayim & Anor v Citibank NA & Anor [1987] 1 A C 730, which was a decision of the Privy Council on an appeal from the Court of Appeal of Hong Kong. In that case, the testator by his will disposed of all his assets in the United States of America and appointed the first defendant to be executor and trustee of his will (the American will). By cl 10 of the will the testator directed that if at the date of his death he was the owner of his house in Hong Kong (Hong Kong house), where he then lived with his brother and sister, and his brother and sister survived him, his executor and trustee should have no responsibility or duty with respect to that property and that his executor`s and trustee`s only duty and responsibility with respect thereto was to arise upon receipt of the proceeds of sale of the house or upon the death of the survivor of his brother and sister, whichever should first occur. By another will (the Hong Kong will), the testator appointed the second defendant to be the executor and trustee and gave all the residue of his property outside the United States of America which included his Hong Kong house, to the second defendant upon trust to sell and pay the proceeds of sale to the first defendant to be held by the latter upon the trusts of the American will. The testator`s brother and sister survived him and they lived in the house with the consent of the first defendant and the plaintiffs who, among others, were beneficiaries under the American will. The brother and sister were not the beneficiaries under the American will. Subsequently the plaintiffs requested the second defendant to sell the Hong Kong house. However, the second defendant was instructed by the first defendant not to sell the house so as to allow the testator`s brother and sister to reside therein. The plai ntiffs objected and they commenced proceedings against the first defendant and the second defendant for an order that the house be sold and for damages for breach of trust to be awarded only against the second defendant. It was held by the Privy Council that the second defendant under the Hong Kong will held the house in trust for the first defendant and not the beneficiaries interested under the American will; that it was for the first defendant to decide when the house should be sold; that cl 10 of the American will relieved the first defendant of any responsibility or duty with respect to the house and therefore authorised the first defendant to make a decision that the sale of the house should be postponed; that the first defendant did not commit a breach of trust of the American will by directing the second defendant to postpone sale, and that the second defendant did not commit a breach of trust of the Hong Kong will in complying with the lawful direction of the first defendant.

16 In the course of his judgment, Lord Templeman, in response to the authorities cited by counsel for the appellant, said at p 747:

17 After referring to the various authorities, his Lordship continued as follows:

18 Significantly the Privy Council did not hold that the plaintiffs could not sue the second defendant for damages for breach of trust and that the party entitled to take proceedings was the first defendant, the trustee under the American will. Indeed, the implication from his Lordship`s judgment was that the plaintiffs could sue the second defendant but they were in no better position than the first defendant carrying out its duties in a proper manner. By virtue of cl 10 the first defendant was entitled to direct the second defendant to postpone the sale. Having done that it could not possibly complain of such postponement and the plaintiffs could be in no better position. But for cl 10 the plaintiffs would have succeeded. Lord Templeman, said at pp 743-744:

19 A case which is more relevant to the point is Re Atkinson, deceased [1971] VR 612 decided by Gillard J of the Supreme Court of Victoria. In that case, the principal asset of the testator consisted of a farmhouse which was held during his lifetime by him and his wife as joint tenants. Upon his death, the property was vested in the wife solely as the surviving joint tenant. By his will the testator appointed a trustee company the executor and trustee of the will and it appeared from the will that the testator intended that the interest in the farmhouse should enure to the benefit of the widow, his son and others. From the enquiries conducted by the trustee company, it appeared that the property was a partnership property, but the evidence on this point was not conclusive. The trustee company sought an indemnity as to costs from the son for the action proposed to be taken against the widow but the son refused to provide the indemnity. The trustee company thereupon took out an application seeking advice from the court whether the action should be taken against the widow in the circumstances. Gillard J held that in the absence of an indemnity from the son the trustee company was not bound to initiate proceedings against the widow and that the son had an equity to seek remedy on behalf of the estate of the testator, although he considered that the proper party to take action was undoubtedly the trustee company. He said at pp 616-617:

20 The learned judge then referred to the observation of Viscount Radcliffe on Livingston on the right of a creditor or pecuniary or residuary legatee to recover the property of an estate and continued at pp 617-618:

21 Next, we turn to the decision of Chao Hick Tin J in Omar Ali bin Mohd & Ors v Syed Jafaralsadeg bin Abdulkadir Alhadad & Ors [1995] 3 SLR 388. There, the plaintiffs were beneficiaries of the estate of an intestate who was entitled to the unexpired term of the leasehold interest in a property. The trustees of the estate of the owner of the reversion purported to sell the property including the unexpired term of the leasehold interest to the purchaser and the beneficiaries thereupon initiated proceedings against the trustee and the purchaser seeking declarations that the unexpired term of the leasehold interest vested in the estate of the intestate and that the purported sale by the trustees was null and void. One of the questions before Chao Hick Tin J was whether the plaintiffs could sue as beneficiaries of the estate for the declaration to protect the property of the estate and to prevent the sale of the property. Chao Hick Tin J followed the decision of Gillard J in Re Atkinson and held that the plaintiffs had locus standi to bring the action. He said, at p 395:

22 In the cases discussed there were circumstances justifying the actions taken or to be taken by the beneficiaries concerned. In Hayim , the proper party to sue the trustee of the Hong Kong will was the trustee of the American will, but since the latter was the party who gave instructions to the trustee of the Hong Kong will to postpone the sale, it was clearly not in a position to sue, and the beneficiaries of the American will commenced the action against both the trustee of the American will and the trustee of the Hong Kong will. In Re Atkinson , the court had relieved the trustee from taking and pursuing the action against the wife of the testator and held that in those circumstances the son as a beneficiary under the will of the testator could take action against the wife to claim the property on behalf of the estate. In Omar Ali , there was no personal representative representing the estate of the intestate and the beneficiaries were held entitled to institute the action to protect the assets belonging to the estate.

23 Reverting to the case at hand, the learned judge analysed the factual position in the following concise terms:

24 Yet, strangely enough, with respect, the learned judge did not find that such a position and, in particular the delay in extracting the grant of the letters of administration, constituted sufficient special circumstances. She said:

25 The learned judge in coming to the conclusion that no special circumstances had been made out had taken too restrictive a view of the concept of special circumstances. She said:

26 With respect, we do not think that the authorities have circumscribed the range of special circumstances in the manner suggested by the learned judge. In our opinion, special circumstances are not confined solely to cases where the personal representative has defaulted in acting to recover the property. Such a rule would be too inflexible and may lead to injustice. For instance, there may be cases where unless the beneficiaries are allowed to initiate proceedings to protect the assets of the estate such assets would be at risk of being disposed of or dissipated by a third party. In such circumstances, it should be open to a beneficiary to apply to court for relief to protect the property, where either the representative refused or failed to act or where there was at the time no proper personal representative appointed to represent the estate, as in Omar Ali .

27 It is instructive to refer to the approach adopted by Powell J of the Supreme Court of New South Wales in Ramage v Waclaw (1988) 12 NSWLR 84. In that case, the plaintiff and the deceased were sisters and had lived together in a house for many years and the property was owned by them as tenants in common in equal shares. The plaintiff was the universal legatee under the will of the deceased made in 1971. In 1981 the deceased was taken ill and was admitted to a nursing home, where at the inducement of one of the defendants she transferred her half share of the property to the defendants. She subsequently died and her will was proved by the Public Trustee. The Public Trustee in the face of medical report relating to the physical and mental conditions of the deceased at the time of the execution of transfer declined to take proceedings against the transferees to set aside the transfer. Consequently, the plaintiff took proceedings in her name to set aside the transfer and she joined the transferees and the Public Trustee as defendants.

28 Powell J held there were present special circumstances sufficient to justify the plaintiff having filed the summons in her name alone claiming the relief to which she was entitled, and he allowed her claim. He adverted to numerous circumstances justifying the plaintiff in maintaining the action. These included the fact that the interest in the subject property was the deceased`s major asset, and that unless the proceedings were commenced, an asset which might markedly increase the size of the deceased`s estate could be lost. Similar circumstances existed in the present case.

29 In the course of his judgment Powell J referred to various authorities and, among others, Osborne Hilliard v Luke Eiffe (1874) LR 7 HL 39 at 44(n) where a bill brought by a residuary legatee to set aside an annuity granted by the testator was upheld by the Vice-Chancellor of Ireland who said:

30 In our opinion, all the circumstances of the case should be considered, including the nature of the assets, the position of the personal representative and the reason for the default of the personal representative. It may be pertinent to see whether the circumstances made it `impossible, or at least seriously inconvenient for the representatives to take proceedings`.

31 The judge below further opined that the properties could be followed by tracing in equity, even if they had been dissipated. With respect, this consideration should not operate to preclude the appellant from maintaining an action which is primarily meant to protect the assets of the estate. The existence of a potential remedy in equity does not mean that the appellant should not be entitled to exercise her rights qua beneficiary, if the requisite special circumstances exist.

32 We turn to the relevant circumstances in the case at hand. The reason for the failure on the part of the appellant to extract the grant of letters of administration to the estate of Theng was her inability to obtain the necessary clearance from the Commissioner of Estate Duty. Counsel for the appellant stated that the appellant was unable to file the estate duty affidavit owing to her inability to specify the properties belonging to the estate which were held by the respondent. This might well be true. However, assuming that the appellant could file the estate duty affidavit with the Commissioner of Estate Duty with full disclosure of the assets and liabilities of Theng it would take some time for the Commissioner to assess the value of the assets and determine the liabilities and to consider whether or not he would be prepared to issue a certificate of postponement for payment of estate duty to enable the appellant to extract the grant of letters of administration. And if he would be prepared to do so, then there would inevitably arise the questions of giving adequate security for the issue of such certificate and the ability of the appellant to furnish such security. All these would have to be resolved before the grant of letters of administration could be extracted.

33 In connection with the question of filing of estate duty affidavit, the learned judge stated that there was no evidence of the appellant having asked the respondent to furnish details of the deceased`s assets. With respect, such an enquiry would have been an exercise in futility. There was a dispute between them and the acrimony between the parties was apparent. In these circumstances it is unlikely that the respondent would have been forthcoming with any disclosure. Indeed, there was no such disclosure until she was ordered to file an affidavit disclosing her assets to the court.

34 Finally, the learned judge also considered that the appellant could still have filed an estate duty affidavit in which she made provision, pursuant to ss 30(2) and 43(1) of the Estate Duty Act (Cap 96), for property which might later be found to be part of the estate. She said:

35 With respect, we were unable to agree. Section 30(2) provides:

36 It is clear to us that the appellant could only proceed under s 30(2), if she knew what the assets of the estate of Theng were that were held by the respondent. Her case was that she was not in a position to disclose in an affidavit such assets and could not obtain the necessary information from the respondent. There was no possibility of her filing an affidavit in terms of s 30(2) and in consequence we do not see how she could persuade the Commissioner to grant a certificate of postponement of estate duty under s 43(1)(d).

37 Clearly, this was not a case where the appellant had defaulted in acting to preserve the property belonging to the estate. In our opinion, the appellant had done all that she could to seek to preserve and protect the assets of the estate of Theng. The crucial consideration was that as administratrix she was preventedby circumstances not within her control from taking any action against the respondent as the grant of administration could not be extracted. The appellant`s inability to extract the grant of administration was not of her own doing. We did not see how it could be seriously argued that she was trying to evade the requirements of the Probate and Administration Act (Cap 251). It seems clear that she was doing her best to comply with those requirements until she was faced with the obstacles relating to estate duty.

38 In our judgment, the appellant had shown that special circumstances existed to enable her to bring the action qua a beneficiary and on behalf of her children as beneficiaries of the estate of Theng. In the result, we allowed the appeal with costs and set aside the orders made. We ordered that the writ and the statement of claim be reinstated, as well as the injunction. We granted the appellant leave to amend her writ and statement of claim to enable her to sue in her alternative capacity as a beneficiary and on behalf of the six beneficiaries of the estate. We further directed the respondent to serve the affidavit of disclosure on the appellant.

39 Order accordingly .