An executor must sue in a representative capacity for claims relating to an estate; personal counterclaims lack standing and cannot succeed.

JUDGMENT

Celestina Stuel Galid J:

Introduction

[1] The present action involved a too familiar dispute between siblings upon the death of a parent. In this case, the dispute was between the sister (the Plaintiff) and the brother (the Defendant) after the passing of their mother ("the Deceased") on 30 October 2016. The Plaintiff and the Defendant have another sibling, a sister ("Lui Siew Hing") and a deceased brother ("Lui Wing Dick").

[2] The dispute in this case was in relation to the estate of the Deceased. The Plaintiff sued the Defendant, inter alia, to have it declared that the Last Will of the Deceased dated 22 April 2010 ("the Last Will") which largely favoured the Defendant, to be invalid and null and void.

[3] The Defendant counterclaimed against the Plaintiff, inter alia, for the sum of RM1,977,478.27 which the Defendant claimed the Plaintiff wrongfully withdrew from the Fixed Deposit Group Account No 202-003-348-9 held by the Deceased with UOB Bank Berhad after the Deceased passed away.

[4] On 25 May 2021, this Court dismissed both the Plaintiff's claim and the Defendant's counterclaim with no order as to costs. The Defendant has appealed against the dismissal of his counterclaim. The Plaintiff has not. Thus, these grounds of judgment shall only relate to the Defendant's counterclaim.

The Defendant's Counterclaim

[5] The Defendant's case in the counterclaim was aptly summarised in the relevant paragraphs of the Defendant's Opening Speech (encl 135) marked as "H". They are reproduced (verbatim) below:

"18. The Defendant will show that it was more probable that the Plaintiff took out the current action against the Defendant when the Defendant as the Executor of the Deceased's Will started to ask for copies of documents and information of the money left behind by their late mother which prompted the Plaintiff's husband to ask the Defendant to go through a lawyer.

19. It is the Defendant's case that the Deceased's monies came from her businesses in Sabah, including but not limited to their late mother's companies and the Deceased had always placed her available cash in joint accounts under her name and that of the Defendant, and mostly at banks located in Kuala Lumpur.

20. However, sometime around 2012-2014, the Plaintiff asked for the Defendant's understanding to include her name in the said joint accounts, which was agreed to by Deceased and the Defendant so that the Plaintiff could manage the Deceased's money better by moving the funds around to earn higher returns since the Defendant was not always in Malaysia then.

21. After the 2nd Will was read, the Defendant as the Executor and Trustee of the Will, repeatedly enquired the Plaintiff about the money left behind by the Deceased but the Plaintiff's husband mentioned to the effect that it would have to go through a lawyer.

22. After the Defendant issued a letter to the Plaintiff through his Solicitors demanding that the Plaintiff render to the Defendant an account and complete detailed information of all monies of the Deceased, the Plaintiff continued to refuse to provide the necessary information and made unfounded claims regarding the validity of the Will in dispute through her Solicitors, M/s Chris Koh & Chew of Kuala Lumpur.

23. All of these claims of the Plaintiff were denied by the Defendant.

24. The Plaintiff then took out a Writ of Summons against the Defendant on 28 April 2017 at the High Court of Kuala Lumpur to dispute the validity of the Will in dispute but the said suit was struck out by the High Court of Kuala Lumpur on 27 December 2017 on the ground of want of jurisdiction.

25. The Plaintiff then filed the present suit.

26. Meanwhile, the Defendant conducted an exercise to trace the money(ies) of the Deceased in April 2017.

27. From his enquiries, the Defendant found that the Plaintiff had misused the Deceased's monies, treating them as her own, amongst them was where the Plaintiff took away/withdrew all monies from the Deceased's fixed deposits held under their late mot