FAQs: Can you commence legal action?

1 I) A claims that B owes him a sum of money. B died last week. What can A do?

General rule: section 8(1) of Civil Law Act: all cause of action subsisting against or vest in the deceased shall survive.

Exception (Proviso to section 8(1)) : unless in the case of 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.

Provided in section 8(1), the cause of action still subsists even though the deceased has passed away unless that action falls within the exception mentioned in section 8(1). Hence, even though B has died, A will still be able to commence an action against the estate of B to recover the debt.

II) Who will be the defendant if A proposes to pursue the above cause of action?

Estates of the deceased person can be sued in the name of the Personal Representative. It is either an administrator or executor. This will depend on whether B died with or without a will.

If B died with a will, A can name the executor of B’s estate as the defendant. In other words, A needs to find out who is the executor of B’s estate and name him as the defendant. But if the executor doesn’t obtain a grant of probate from the court, A cannot commence an action against the executor.

If B died without a will, A can sue the administrator of B’s estate as the defendant. But this can only be done after that administrator has extracted a grant of letter of administration. This is because an administrator cannot sue or be sued before the grant is extracted.

III) What should A do if the executor or the administrator of B’s estate did not extract the grant of probate or letter of administration?

Order 15 rule 6A Rules of Court 2012 (ROC) allows action against the estate of the deceased

 Action can be brought against the estate even if probate or administration has not been granted
 Action is commenced against ‘the personal representative of deceased’
 Once the writ is issued, A can apply to the court to appoint a person to represent the estate or personal representative if any within the six (6) months of writ validity.
 Notice is given to anyone having an interest in the estate.
 The court may appoint Amanah Raya Bhd to represent the estate and accept the writ

In other words, if no grant of probate or administration has been made, A shall apply to the court for an order appointing a person to represent the estate of the deceased for the purpose of the proceedings. If a grant of probate or administration has been made for, A shall apply for an order that the personal representative of the deceased be made a party to the proceedings. According to Order 15 rule 6A(7) ROC, any judgment or order given or made in the proceedings shall bind the estate of the deceased even though no grant of probate or administration has been made.

2 Q: A defamed B. B died a few months later. C is B’s executor. Can C commence an action against A for damages for defamation?

A: According to section 8(1) of the Civil Law Act, cause of action survives even if the potential plaintiff dies, except in 4 situations which are defamation, seduction, inducing one’s spouse to leave another, adultery. This is because these are considered personal actions. when the B is dead, no “reputation” so to speak. In other words, when a person dies, the cause of action does not come to an end. The cause of action survived even though the potential P has died, except in the four (4) situations as provided in the proviso of s.8(1) of the CLA. In normal situations, the estate of the deceased will take over the action on behalf of the deceased.

3 Q: P entered into a contract with D in 2013 to purchase a product. D breached the contract in 2013.

Can P commence an action for breach of contract against D today?

A: Under section 6(1)(a) of the Limitation Act 1953, actions founded on a contract shall not be brought after the expiration of 6 years from which the cause of action accrued. The cause of action accrued in the year 2013 when D breached the contract. The last day to commence an action would be in the year 2019. However, now is the year 2023. Therefore, P’s action will be barred because of limitation.

4 Q: A commences an action in negligence against B. B wishes to commence third – party proceedings against C to seek contribution or indemnity from C.

A: B is seeking contribution from C, which is provided for under para Order 16 rule 1(1)(a) (ROC) which stated: where in any action a defendant who has an appearance claims against a person not already a party to the action any contribution or indemnity. Thus, B can commence third-party proceedings.

In order to commence s third-party proceeding, B must have entered an appearance to A’s action.
Subsequently, B shall make an application for leave of court to issue a third party notice unless B issues the notice before serving his defence on A.

B shall issue and serve a third-party notice on the intended third party. A copy of the writ or originating summons of the main action shall be attached together to the intended third party.

Once the intended third party notice has been served, the third party must enter an appearance within 14 days under Order 12 rule 4 ROC. If the third party fails to enter appearance within the prescribed time limit, the third party is in default and he is deemed to admit to the Defendant’s claim against him under Order 16 rule 5 ROC.

Once the third party, C has entered appearance, B shall apply to the Court for directions by notice of application and shall issue and serve on all parties a notice of application for third-party directions.

When B had properly issued the notice of application for third-party direction, the next step is hearing. A, B and C will need to attend. There are various orders made by the court:-

a) At the hearing of third party direction, if the liability of the third party is clearly established then the judge has the power to grant judgment as the nature of the case may require to be entered against the third party in favour of B;
b) The court may order any questions or issues between the third party and defendants to be tried;
c) If the third party wants to join together with the defendant to defend the plaintiff’s claim, the third party needs to obtain leave of court;
d) At the third party’s direction, the court may determine the extent to which the third party may be bound by any judgment made against the defendant;
e) The court may dismiss the application for third-party directions, if the third party can show to the satisfaction of the court the plaintiff’s claim against the defendant does not fall under O16r1(1) or he cannot be sued

If you have any questions or require any additional information, please contact our lawyer that you usually deal with.

This article is written by 

Foo Hiap Choong
Partner, Low & Partners

Chong Man Yu
Legal Associate, Low & Partners