By Prisilla Chong (Reviewed by Tommy Wong and Eric Toh)

Executors and administrators are commonly referred to as personal representatives of an estate. An executor is a person named in the will to administer the assets and carry out the last wishes of a testator. An administrator, on the other hand, is a person appointed by the High Court to administer the estate of a deceased who did not leave behind a will.

The primary duty of a personal representative is to protect the rights and interests of the beneficiaries of an estate. However, recent years have seen a significant rise in cases commenced by beneficiaries against personal representatives.

This article sets out an overview of the options that are available to you as a beneficiary if you believe that your personal representative has breached his or her fiduciary duties.

Speak to the personal representative

It is trite law that a personal representative has to account for all his or her dealing concerning the estate.[1] If you believe that your personal representative has breached his or her fiduciary duties, you can speak to him or her in respect of the concerns that you may have. You can propose to have a discussion with the personal representative together with all the beneficiaries of the estate.

During such discussions, it is essential to know that you can enforce your rights as a beneficiary and require the personal representative to provide you with a complete inventory and accounts of the estate.[2] It is the fundamental duty of personal representatives to keep accurate accounts of the estate and to be ready at all times to render such accounts when called upon to do so.

The importance of having and keeping accurate accounts of the estate was highlighted in the case of Damayanti Kantilal Doshi & Ors v Jigarlal Kantilal Doshi & Ors [1998] 4 MLJ 268, where the Court of Appeal held that the beneficiaries would have no means of knowing whether the estate has been administered properly if the executor fails to provide them with the accounts of the estate.[1] If your personal representative is reluctant to provide you with the necessary information of the estate, you can appoint a lawyer to demand for the accounts for you.

Administration action 

If the dispute between you and your personal representative persists, you can commence an administration action against the personal representative at the High Court to obtain directions on questions that arose during the administration of an estate under Order 80 of the Rules of Court 2012 (“ROC 2012”).[4] 

The phrase “administration action”’ is defined in Order 80 rule 1 of the ROC 2012 as an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.

By commencing an administration action against the personal representative, you can seek the High Court’s directions on the determination of any question in relation to (a) the administration of the estate of a deceased person or in the execution of a trust; (b) the composition of any class of person or a beneficial interest in the estate of such person or in any property subject to a trust; or (c) the rights or interests of persons claiming to be a creditor of the estate or to be entitled under a will or on intestacy of a deceased person or to be beneficially entitled under a trust.[5]

An administration action is not confrontational as it is not intended to remove or deprive a personal representative of the grant of representation that was issued by the High Court. The primary purposes of administration actions are to resolve the difficulties faced by interested parties in the administration of an estate and to ensure that the estate is administered properly. The reliefs that the High Court may grant are, amongst others, to direct the personal representative to provide verified accounts or to require the payment of money into Court. In addition, the High Court may direct the personal representative to do or abstain from doing a particular act.

Parties who may apply under Order 80 ROC 2012 are not only limited to personal representatives and beneficiaries of an estate as creditors having claims and other persons interested in the proceedings may also apply for the High Court’s directions on questions in relation to the estate.

Removal of personal representative

If you are of the view that your personal representative has committed severe misconduct in administering the estate, you can seek the removal of the personal representative by applying to the High Court for the revocation of the Grant of Probate or Grant of Letters of Administration issued, under Section 34 of the Probate and Administration Act 1959 (“PAA 1959”) which reads as follows:

        “Any probate or letters of administration may be revoked or amended for any sufficient cause.”

The process of removing an executor or administrator in the High Court may take up to nine (9) months, depending on the complexity of the matter. To invoke the High Court’s jurisdiction under Section 34 PAA 1959, you will have to establish that there is sufficient cause for the revocation. Further, you will need to adduce sufficient evidence to raise a strong suspicion of the personal representative’s inaction, want of diligence and dishonesty, or that there is a conflict of interest. These are mostly questions of facts which will depend on the circumstances of your case.[6] 

In the case of Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 177, the High Court held that so long as it can be objectively determined that there is a reasonable suspicion in the executor or administrator’s conduct, the plaintiff would have a reasonable chance in the revoking or amending the Gran#ftnt10t of Probate or Grant of Letters of Administration..[10] 

It is interesting to note that the phrase “sufficient cause” is not defined in the PAA 1959. However, the Courts have always considered the welfare and interests of the beneficiaries of an estate as the paramount criterion when deciding whether there is sufficient cause to interfere with the estate affairs by revoking the Grant of Probate or Grant of Letters of Administration.

In the Federal Court case of Re Khoo Boo Gong, deceased [1981] 2 MLJ 68, it was held that the objective test of what amounts to “sufficient cause” which justifies the revocation of the Grant of Probate or Grant of Letters of Administration is the due and proper administration of the estate and the interests of the beneficiaries.[7] This view was similarly followed in the case of Damayanti Kantilal Doshi & Ors v Jigarlal Kantilal Doshi & Ors [1998] 4 MLJ 268, where the Court of Appeal held that the courts are empowered to remove an executor or administrator to safeguard the assets and interests of the beneficiaries.

Situations in which the High Court has revoked the Grant of Probate or Grant of Letters of Administration include the following:

  • Where a serious misconduct committed by executor or administrator;[8] 
  • Where the relationship between the beneficiaries has deteriorated to the extent that the executor or administrator can no longer effectively administer the estate;[9] 
  • Where the executor or administrator is not suitable for the position; and
  • Where the Grant of Probate or Grant of Letters of Administration was obtained by misrepresentation or fraud.

[1] Woon Mooi Hua & Anor v Tan Kay Swee [1971] 1 MLJ 169

[2] Section 62 of the Probate and Administration Act 1959

[3] amayanti Kantilal Doshi v Jigarlal Kantilal Doshi [1998] 4 MLJ 268

[4] Order 80 of the Rules of Court 2012

[5] Order 80 rule 2 of the ROC 2012

[6] Palaniyappan v Ramanathan Chettiar [1977] 2 MLJ 34

[7] Re Khoo Boo Gong, deceased [1981] 2 MLJ 68

[8] Guindarajoo a/l Vegadason v Satgunasingam a/l Balasingam [2010] 4 MLJ 842; Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 177

[9] Mak Chee Chong v Rockwills Trustee Berhad [2016] 10 MLJ 124

 

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