RK Nathan JC:

Facts

The plaintiffs in this action are the absolute beneficiaries of the estate of the late Ong Soon Hoe @ Patrick Ong (the deceased). They are the only two daughters of the deceased and are of full age. The deceased died on 21 September 1994, leaving a will dated 6 March 1989 and naming the defendant as the sole executor and trustee of his will. A provision was made that in the event the defendant predeceased the deceased, then one Tan Sri Datuk Augustin Ong Soon Hock (Tan Sri) was named as the alternate executor/ trustee. Pursuant to the will the deceased bequeathed all his assets, both moveable and immoveable, to the plaintiffs. The defendant was appointed executor and trustee on 17 August 1996 by the Shah Alam High Court on 17 August 1997.

The Application

This is the plaintiffs' application against the defendant (encl. 1) to have the defendant removed and/or substituted as the executor/trustee of the deceased's estate for the defendant's lack of diligence and/or act of wilful default while acting in his capacity as the executor/trustee of the estate of the deceased.

Plaintiffs' Case

It is the plaintiffs' contention that from the time the defendant was appointed as the executor he had acted in a dilatory manner in administering the estate. The defendant had ignored and defied the plaintiffs' wishes and refused to supply the plaintiffs with relevant information pertaining to their late father's estate. With regard to lack of diligence and unreasonable conduct the plaintiffs gave examples.

(i) Engaging Two Firms Of Solicitors

It was pointed out that the defendant had engaged two firms of solicitors to attend to the probate of the deceased's estate and that the estate had to pay legal fees to both the firms. The earlier solicitors, Messrs Sri Ram & Co, had billed RM21,000 for work done. It was the contention of the plaintiffs that the defendant had failed to inform the plaintiffs the nature of the work that was attended to by the earlier solicitors. He had also failed to inform them nor did he advise the plaintiffs of the reason for a change of solicitors to the present solicitors. The defendant had stated that the fees of the present solicitors was RM15,580 as shown by their bill dated 29 June 1996, whereas in disclosing the liabilities in respect of the probate the defendant had stated "Yuran Peguamcara RM31,000". The plaintiffs therefore argued that the defendant had failed to provide an explanation as to how the legal fees was calculated to amount of RM31,000 when the bill from the present solicitors indicated a sum of RM15,580. This they contended was a clear example of the defendant's failure to keep proper accounts of the estate.

In reply the defendant contended that whilst the agreed fees for Messrs Sri Ram & Co was RM21,000, upon being discharged after an initial sum of RM10,500 had been paid, the said solicitors had insisted on the full balance or they wished to tax their bill. The balance had not as yet been settled. In respect of switching to the present solicitors the defendant maintained that it was his prerogative and that he did not need the prior approval of the plaintiffs regarding the change.

Whilst I agree that it is the right and prerogative of the defendant to choose counsel whom he thinks would best serve the estate, I cannot endorse the defendant's view that he owes no explanation to the plaintiffs as to why he switched lawyers. Whilst his explanation that the previous solicitors "were not giving the matter sufficient priority" is a bare statement, I find that even such an explanation if it was proffered to the plaintiffs, which I find was not done, lacked details and particulars, more so when it is clear that the plaintiffs are residing in the United Kingdom.

(ii) Wrongly Including Various Items Into The Assets

The plaintiffs contended that the defendant had wrongly included the deceased's (a) EPF monies, (b) the Citibank Trust Account, and (c) the Prudential Life Insurance Poli