更换遗嘱里的执行人 [2016] 10 MLJ 124

死者立了一份遗嘱，遗嘱注明Rockwills Trustee Bhd (被告) 为遗产执行人，受益人为死者的两名孩子。
自死者去世一年以来，由于死者丈夫(原告) 拒绝支付被告所要求的执行费，因此一直未申请遗嘱认证书。
原告向法庭申请更换执行人，理由是被告征收的执行费过高。然而被告称死者是在了解条款后才签下appointment form，而死者的意愿必须被尊重。
在沙巴遗嘱认证及管理条例第89条文下，法庭可在有充分的理由下中止或撤销任何遗嘱执行人。法庭在决定是否有充分的理由时，始终将遗产受益人的福利和利益视为最重要的标准。（Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842; [2010] 6 CLJ 954）
法庭表示两位受益人都希望原告成为执行人，因为不希望遗产被耗尽。被告则拒绝了他们的要求，但同时也没有采取积极的行动，进而导致死者遗嘱认证书的申请陷入了一个僵局。
即使被告表示死者意愿必须被尊重，但是法官认为尽管死者在遗嘱分配方面的意愿是需要被尊重，但在遗产管理方面却并非绝对的。它必须取决于当前的情况以及受益人的利益。
法庭批准了原告的申请。

*详细的案情和判决，请阅读以下的英文版文章。

INTRODUCTION

This is an application to remove a trust company (‘the defendant’) that had been appointed as the executor and trustee of the estate of the deceased. The application is made by the husband of the deceased. The first ground is that the scale of fees quoted by the trust company is too high. The other ground is that there is deadlock between the trust company and the plaintiff in respect of the probate application. The beneficiaries of the estate are the children of the deceased. They do not object to this application. However, the defendant has strenuously objected to this application.

BACKGROUND FACTS

The deceased (‘Sim Phaik Chin’) died on 3 March 2014 in Kuala Lumpur. The deceased had appointed the defendant as the executor and trustee of her last will and testament. The will was prepared by the defendant. The beneficiaries of the will are the two children of the deceased. Both children have attained the age of majority.
The will contains a trusteeship clause. The deceased appointed the defendant as the trustee of the estate for the benefit of the children until they attain the age of 35. The younger child was born in 1991 and that means that the trust established under the last will and testament of the deceased has to be maintained for 12 years. The plaintiff stated that the value of the estate is RM2,470,618. However, when he enquired about the management fees, he was told by the defendant that the minimum annual fees payable was RM47,559.20 based on their scale of fees for management of the trust.
A similar will was executed by the plaintiff at the same time. The plaintiff was under the mistaken impression that the fee paid to the defendant when the will was prepared was sufficient. The plaintiff deposed that he never sought independent legal advice that time and that he would not have agreed to appoint the defendant as the executor and trustee. He was also not aware that the fee for administering the trust was based on the value of the estate.
Since, the death of the deceased a year ago, grant of probate had not been applied for as the plaintiff had refused to pay the fee demanded by the defendant. However, at the same time the defendant had refused to accede to the suggestion of the plaintiff to resign as executor and trustee and allow him to take over.
In the intitulement to the instant originating summons, the plaintiff has cited ss 54, 89, 90 and 166 of the Probate and Administration Ordinance (Cap 109). He also deposed that it is inconvenient to liaise with the trust company as it is based in Kuala Lumpur.

THE DEFENCE

The defendant argued that:

- the plaintiff has failed to demonstrate that the defendant was unwilling to act as executor and trustee of the estate of the deceased.
- the defendant is able and willing to probate the will and perform its duties as executor and trustee.
- the appointment form allows the defendant to deduct fees and disbursements from the funds of the estate. Section 4(2) of the appointment form reads as follows: “RWT shall be entitled to deduct from the funds of the estate and/or trust, its fees and disbursements calculated in accordance with its published Scale of Fees as at the date of execution of the will and it shall be final and conclusive, unless it is subject to the terms and conditions of the Estate Administration Services Package (UPrepare).”
- the deceased understood the terms and conditions of the appointment form and signed it. He said that the rate of fees will not deplete the estate.
- the trust company has an office in Kota Kinabalu.
- the power to remove trustee can only be exercised after the properties are distributed to the trustee by the executor and after three months’ notice is given.

ISSUES

The application of the plaintiff is grounded under ss 54, 89, 90 and 166 of the Probate and Administration Ordinance (Cap 109) of the Laws of Sabah. In the written submissions, counsel for the plaintiff abandoned ss 90 and 166 as the basis of the application. These provisions require the pre-existence of a grant of probate before an application to remove the executor can be made. Therefore, I only need to address the question whether the plaintiff can succeed in his application to remove the executor under ss 54 and 89 of the Ordinance.

DECISION

Sections 54(1) and 89 of the Probate and Administration Ordinance (Cap 109) of the Laws of Sabah read as follows:

54(1) When a person has died intestate, or leaving a will of which there is no executor willing and competent to act, or where the executor is, at the time of the death of such person, resident out of the Colony, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof other than the person who under ordinary circumstances would be entitled to a grant of administration, the Court may in its discretion, having regard to consanguinity, amount of interest, the safety of the estate, and the probability that it will be properly administered, appoint such person as it thinks fit to be administrator.

89 The Court may on application made to it and on sufficient cause being shown suspend, remove or discharge any executor or administrator and provide for the succession of another person to the office of any executor or administrator so suspended, removed or discharged and the vesting in such successor of any property belonging to the estate.

The plaintiff submitted that:

- s 54 can be invoked to remove the defendant as executor because it is based in Kuala Lumpur and would incur unnecessary costs in administering the trust for the next 12 years.
- this case comes under the limb which refers to the executor being resident out of the colony.
- for the will reading ceremony, a representative from Kuala Lumpur flew to Kota Kinabalu. The defendant countered this argument that they have a branch office with a representative in Kota Kinabalu.

In my opinion, plaintiff’s argument is not valid as s 54 refers to an individual as opposed to a corporation. This is the reason that the executor is referred to as ‘some person’ in s 54. Therefore, if the executor is resident outside the colony, it becomes a ground to remove him as executor. However, in the instant case, the executor is a company and it is undisputed that it has a branch office in Kota Kinabalu. Therefore, it cannot be said that the executor is resident outside Sabah. I am also of the opinion that it cannot be said that the defendant is not ‘willing’ or not ‘competent’ to act as executor. The defendant has deposed that they are still willing to act executor. In fact they are insisting to act as executor purportedly in order to respect the wishes of the deceased. In respect of competency, there is no material to hold that they are not competent. As they are a registered trust corporation, it must be presumed that they are competent.
The next question that arises is whether the plaintiff can ground his application under s 89. Under this provision, ‘sufficient cause’ must be shown to remove an executor.
Counsel for defendant cited the case of Phua Chui Har v Amanah Raya Bhd [2002] MLJU 512 and submitted that saving costs is not a sufficient to discharge the trustee and extinguish the trust. In that case, the deceased had appointed Amanah Raya Bhd as the executor in the will and had also appointed them the trustee of the trust that was created under the will. The sole ground of the application was to avoid fees due to Amanah Raya Bhd. In my opinion, the above mentioned case can be distinguished from the instant case. The application in Phua Chui Har v Amanah Raya Bhd was based under s 40 of the Trustee Act of 1949. The learned judge in that case noted that saving costs is not one of the grounds envisaged under s 40. Furthermore, the plaintiff in that case had applied to extinguish the trust created by the said will. The instant application is only concerned with the removal of the defendant as the executor and trustee. Therefore, the issue at hand must be addressed under s 89 of the Probate and Administration Ordinance (Cap 109) of the Laws of Sabah, ie whether sufficient cause had been shown to remove the executor. ‘Sufficient cause’ is not defined in Probate and Administration Ordinance (Cap 109) of the Laws of Sabah.
Section 34 of the Probate and Administration Act 1959 (revised 1972) which applies in Peninsular Malaysia reads as follows: “Any probate or letters of administration may be revoked or amended for any sufficient cause.”
‘Sufficient cause’ is not defined in this legislation as well. In Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842; [2010] 6 CLJ 954, the meaning of ‘sufficient cause’ was addressed as follows in paras 25 and 26:

“[25] And what is sufficient cause? The Court of Appeal in Damayanti Kantilal Doshi & Ors v Jigarlal Kantilal Doshi & Ors [1998] 4 MLJ 268; [1998] 4 CLJ 81 applied the test in the Federal Court case of Re Khoo Boo Gong, Decd Khoo Teng Seong v Teoh Chooi Ghim & Ors [1981] 2 MLJ 68; [1981] 1 LNS 78 and held (at the headnotes):

Section 34 of the Act empowers the court to interfere if ‘sufficient cause’ is shown. The phrase ‘sufficient cause’ is not defined, but the courts have always considered the welfare and interests of the beneficiaries of an estate as the paramount criterion in deciding whether or not there is sufficient cause to interfere. This is strictly an objective test.

[26] On the same question of ‘sufficient cause’, Abdul Hamid Embong J (as he then was) in Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 177; [2002] 6 CLJ 152 accepted that ‘all that is needed is for the plaintiff to adduce sufficient evidence to raise a strong suspicion of the defendant’s inaction, want of diligence and honesty, or a conflict of interest situation or inability to act to invoke the court’s jurisdiction under s 34 of the Probate and Administration Act 1959 and allow the reliefs sought’.

The defendant pointed out that in the instant case, probate had not been obtained and administration of the estate or the trust has not commenced. In the premises, there can be no question of misconduct or irregularities or dishonesty on the part of the executor. I agree with him. However, it has been held that in considering ‘sufficient cause’, the welfare and the interests of the beneficiaries is the paramount criterion. In the instant case, it is common ground that since the death of the deceased about a year ago, the will of the deceased has yet to be probated. And the reason is simple. The defendant wants funds to be deposited by the plaintiff so that they can give instructions to solicitors to apply for probate. The plaintiff has refused. The plaintiff has deposed that the scale of fees is too high and would deplete the estate. The two beneficiaries prefer the plaintiff to become the executor as they do not wish the estate to be depleted. The defendant has refused to accede to their request but at the same has not taken the proactive step to apply for probate using corporate funds with a view of deducting from the funds of the estate at a later date. The unfortunate net result is a perfect deadlock or stalemate in respect of the matter of probate of the will of the deceased.
The Defendant has submitted that the wishes of the deceased must be respected and that this is the sole reason for the defendant to insist in administering the estate. In my view, while the wishes of the deceased may be absolute and sacrosanct (respected) in respect of the distribution of the estate in accordance with the will, it is not absolute in the matter of administration of the estate. It must necessarily depend on the exigencies (need/necessity) of the prevailing situation and the interests of the beneficiaries. Otherwise, the law would not have empowered the court to remove the executor for sufficient cause.
In the instant case, as I noted earlier, there is deadlock situation as the defendant had not proceeded to apply for probate for the reason that funds were not deposited with them. As I said earlier, they could have used their own funds first but did not. If the stalemate continues, the beneficiaries would suffer prejudice and it can be fairly said this is not a situation that the deceased would have wished for. It also can be said that the defendant would not suffer any financial loss if the application is allowed as they had not incurred any expense in administering the estate as probate had not been applied for.
As for the expenses in connection with the execution of will, it is undisputed that the fees had been paid.
Finally, I would observe that the plaintiff is a person who has locus standi to make this application as he is the lawful husband of the deceased and the father of the two beneficiaries of the will. The beneficiaries are in the early twenties and have deposed affidavits to support the application of their father to become the executor and trustee. For all the foregoing reasons, I am satisfied that the plaintiff has demonstrated ‘sufficient cause’ under s 89 of the Probate and Administration Ordinance (Cap 109) of the Laws of Sabah.
In the premises, I shall allow the application with no order as to costs.

Source: Mak Chee Chong v Rockwills Trustee Bhd [2016] 10 MLJ 124. Kota Kinabalu HC. Ravinthran J

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