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.