- 死者做了一份遗嘱，遗嘱注明Amanah Raya Berhad(被告)为遗产的执行人和信托人。
- 法庭驳回原告的申请, 理由是死者的遗嘱里明确指出，她希望被告成为其遗产的执行人和信托人，所以死者的意愿是应该遵守的。法庭表示，死者或许有特定的理由要任命被告为其遗产的执行人， 但是，法庭没有义务去确定死者为何做出这样安排的理由。
- 只有申请着能证明自身情况是1949年信托人法令第40(1) 条文里所指的情况，申请者就能成功撤销或更换委托人。法庭因此驳回原告的申请。
- Through a Will made on 23.7.2001 the Deceased, Goh Swee Giak, created a trust in respect of her estate and appointed the Defendant as the executor and trustee of her estate. The Plaintiff in this case is the only beneficiary of the Deceased’s estate.
- The Plaintiff applied to this Court to extinguish the trust created by the said Will. The only ground given for the application was in order to save expenses in terms of fees that the Defendant may charge when it undertakes to administer the said estate.
- After having considered all the circumstances of this case, I arrived at the conclusion that the Plaintiff’s application had no merits and I dismissed it with costs. The reasons are as follows:
- Firstly, the terms of any will cannot be simply ignored and the wishes must be fully adhered to. In this case the Deceased had categorically stated in the Will that she wanted the Defendant to be the executor and trustee of her estate. She must have specific reasons for wanting to appoint the Defendant to be the trustee of her estate. However, the Court is under no duty or obligation to determine the reasons.
- Secondly, appointment of a new trustee is governed by S.40 of the Trustee Act 1949. The relevant sub-section (1) of the said Act reads:-
“40(1) Where a trustee, either original or substituted, and whether appointed by a Court or otherwise, is dead, or remains out of Malaysia for more than twelve months or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is a minor……..”
- Hence sub-section (1) of S.40 of the Trustee Act clearly stipulates the grounds for which a trustee may be discharged. Saving expenses that the Defendant may charge when administering the estate is not envisaged as a ground under S.40(1) of the said Act. By whatever standard used, I find it very difficult to be convinced that ground to be a valid ground. Assuming that the Defendant is discharged, the Plaintiff may still have to appoint a solicitor to do the necessary legal works before the properties in the estate can be transferred to the Plaintiff. I am unable to say that the solicitor’s legal fees would be cheaper than those that would be charged by the Defendant.
- Thirdly, the Defendant’s main function is dealing with administration of trust matters. It is fully equipped with the necessary knowledge expertise and personnels. As such the likelihood that the Defendant would not be able to carry out its duties and obligation are very remote.
- Finally, the Defendant has not begun the work towards administering the Deceased’s estate yet. As such whatever valid grounds for applying to discharge a trustee as stated under S.40(1) of the Trustee Act have not been shown yet. In other words, this application is premature. Only when it has been shown that the Defendant has committed any act as mentioned under S.40(1) of the Trustee Act which merits a trustee to be discharged can this Court consider granting the Plaintiff’s application.
Trustee Act 1949
40.Power of appointing new or additional trustees
(1) Where a trustee, either original or substituted, and whether appointed by a Court or otherwise, is dead, or remains out of Malaysia for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act, or is incapable of acting, or is a minor, then, subject to the restrictions imposed by this Act on the number of trustees:
(a)the person or person nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
(b)if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee,
may, by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deceased, remaining out of Malaysia, desiring to be discharged, refusing, or being unfit or being incapable, or being a minor, as aforesaid.
Source: Phua Chui Har v. Amanah Raya Berhad  MLJU 512. KL HC. Azmel J
*We have more than 15 years of experience in the legal profession. We handle matters such as commercial disputes, civil litigation, debt recovery, probate & letter of administration, will, divorce, children custody, maintenance/alimony, adoption, distribution of matrimonial assets, drafting commercial agreement, drafting sale and purchase agreement, process loan documentations, legal consultation, legal advisory, miscellaneous legal works.
*Wilson Kuek是“法律与你同行 Law & Justice”面子书群组的创办人。“法律与你同行”是马来西亚最大的法律平台。我们每天为无数的平民百姓免费解除各类的法律困扰。
*加入 我们的“法律与你同行”FB 群组: http://bit.ly/fblawnjustice
*Like 我们的“法律与你同行” FB Page: http://bit.ly/lawnjusticefbpage
*Kuek, Ong & Associates. Advocates & Solicitors. No.86-1, Jalan Mahagoni 1, Bandar Botanic, 41200 Klang, Selangor Darul Ehsan. Klang Lawyer. 巴生(吧生)律师楼。#Kuek, Ong & Associates #Kuek Ong & Associates #Kuek Ong Associates #郭汪律师事务所 #郭汪律师楼
#Chinese Lawyer in Malaysia #Malaysia Lawyer #Klang Lawyer #KL Lawyer #divorce lawyer #马来西亚华人律师 #懂华文的律师 #懂华语的律师 #巴生律师 #吧生律师 #KL律师 #吉隆坡律师 #民事诉讼律师 #打官司的律师 #打离婚案的律师 #离婚律师
#遗嘱 #执行人 #受益人 #申请更换执行人 #Will #executor #beneficiary #change executor