Can you remove the Executor and Trustee in the Will?

 Question : Can you remove the Executor and Trustee in the Will?

Answer could be found in the case of MAK CHEE CHONG v. ROCKWILLS TRUSTEE BHD [2015] 1 LNS 1277 decided by Yang Arif RAVINTHRAN PARAMAGURU.

Facts:

The Deceased died on 03.03.2014.

The Deceased appointed the Defendant/Rockwills Trustee as the Executor and Trustee in the Will.

The beneficiaries in the Will are the Deceased’s two children.

The Plaintiff (husband to the Deceased) applied to Court to remove the Defendant/Rockwills as the Executor and Trustee in the Will.

The Plaintiff argued that the Defendant’s scale of fees is too high and would deplete the estate.

The two beneficiaries (in their affidavits) 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.

This resulted in a deadlock between the Plaintiff and the Defendant.

Decision of the Court.

The Plaintiff must show sufficient cause to remove of the executor. “Sufficient cause” is not defined in the Probate and Administration Ordinance (Cap 90 of the Laws of Sabah). However, 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”.

Court was of the view that 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.

Further in this case the Plaintiff 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.

With this, the Court is of the view that Plaintiff has demonstrated ‘sufficient cause’ under section 89 of the Probate and Administration Ordinance (Cap 90 of the Laws of Sabah), and as such the Court allowed the Plaintiff’s application to remove the Defendant as Executor and Trustee in the Will.

Can tenant sub-let the property/premises?

Can tenant sub-let the property/premises?

In a recent case decided by Yang Arif Dato Ahmad Bin Bache, Yow Khai Cheng v Li Tiam Chai (Appeal No. WA-12BNCVC-63-06/2019), it was held that a tenant CANNOT sub-let the premises without the written permission of the Landlord, even if there was no such clause or terms stipulated in the tenancy agreement, as it is deemed to be implied.

The reasoning behind this is that the Landlord in renting out his premises would like to know what happens to his premises thereafter and what does the Tenant do with it. If the tenant decides to sub-let the premises, the Landlord has the right to know and to be able to allow or deny the tenant from doing so.

It is clear that it is implied in the tenancy agreement that tenant CANNOT sub-let premises without written permission of the Landlord. The Court has taken the position that this decision is fair or else the tenant will be unfairly enriched.

In conclusion, it is particularly important for tenant to first get a written approval or consent from Landlord in order to sub-let the premises to another. Failing which, the tenant would be in breach of the tenancy agreement.

Whether the Landlord can charge double rental?

A very common question we get is whether the Landlord can charge double rental if the tenant refuses to give up possession after the Tenancy has expired/has been terminated by the Landlord?

We refer to the recent Federal Court decision of Rohasassets Sdn. Bhd. v. Weatherford (M) Sdn. Bhd. [2020] 1 CLJ 638.

It was decided, on expiry of the tenancy, Section 28(4)(a) Civil Law Act 1956 kicks in to give the landlord the right to charge double rental and the double rent continues to be chargeable until possession is given up by the tenant who holds over the property without the Landlord’s consent.

To enable the Landlord to charge double rental, there must be a failure/refusal by the tenant to give up possession after being told/demanded to do so by the Landlord.

It was decided in the case that even if the tenant is not guilty of contumacious (stubbornly or wilfully disobedient) conduct, the tenant is still liable to pay double rent if the Landlord has decided to charge double rent and does not consent to the tenant’s holding over and has asked the former tenant to vacate the premises.

Court the Seller could charge interest on all overdue payments from their Customer?

A very common question we get is whether the Seller could charge interest on all overdue payments from their Customer?

In the case of BHS BOOK PRINTING SDN BHD v. PENERBITAN IMT SDN BHD, the Seller sold books to their Customer.

In the invoice to the Customer it was states “interest at the rate of 1% per month would be charged for all overdue payments”.

The Customer failed to pay the Seller, and the Seller sued the customer in Court to recover all overdue payments plus interest.

It was decided by Court, if a contract of sale of goods has provided for interest, the Seller of goods can clearly claim for interest on the price of the goods from their Customer.

In this case the Court allowed the Seller to claim for all overdue payments plus interest.