Introduction

[1] This is an application to remove a trust company (the defendant herein) that had been appointed as the executor and trustee of the estate of the deceased. The application is made by the husband of the deceased. The first ground is that the scale of fees quoted by the trust company is too high. The other ground is that there is a deadlock between the trust company and the plaintiff in respect of the probate application. The beneficiaries of the estate are the children of the deceased. They do not object to this application. However, the defendant has strenuously objected to this application.

Background Facts

[2] The deceased (Sim Phaik Chin) died on 3 March 2014 in Kuala Lumpur. The deceased had appointed the defendant as the executor and trustee of her last will and testament. The will was prepared by the defendant. The beneficiaries of the will are the two children of the deceased. Both children have attained the age of majority. The will contains a trusteeship clause. The deceased appointed the defendant as the trustee of the estate for the benefit of the children until they attain the age of 35. The younger child was born in 1991 and that means that the trust established under the last will and testament of the deceased has to be maintained for 12 years. A similar will was executed by the plaintiff at the same time. In the affidavit in support, the plaintiff has stated that the value of the estate is RM2,470,618.00. However, when he enquired about the management fees, he was told by the defendant that the minimum annual fee payable was RM47,559.20 based on their scale of fees for management of the trust. The plaintiff was under the mistaken impression that the fee paid to the defendant when the will was prepared was sufficient. The plaintiff deposed that he never sought independent legal advice at that time and that he would not have agreed to appoint the defendant as the executor and trustee. He was also not aware that the fee for administering the trust was based on the value of the estate. Since the death of the deceased a year ago, grant of probate had not been applied for as the plaintiff had refused to pay the fee demanded by the defendant. However, at the same time, the defendant had refused to accede to the suggestion of the plaintiff to resign as executor and trustee and allow him to take over. In the intitulement to the instant originating summons, the plaintiff has cited ss 54, 89, 90 and 166 of the Probate and Administration Ordinance 1947 (Cap 109 of the Laws of Sabah). Under cl 30 of the will, the plaintiff was appointed as "protector". He was given the power to replace the defendant as the trustee but was constrained by the said clause to appoint another trust company. He also deposed that it is inconvenient to liaise with the trust company as it is based in Kuala Lumpur.

The Defence

[3] The affidavit in opposition was deposed by the Senior Manager of Rockwills Trustee Bhd who is based in Kuala Lumpur. He deposed that the plaintiff has failed to demonstrate that the defendant was unwilling to act as executor and trustee of the estate of the deceased. He stated categorically that the defendant is able and wiling to probate the will and perform its duties as executor and trustee. He said that the appointment form allows the defendant to deduct fees and disbursements from the funds of the estate. Section 4(2) of the appointment form reads as follows:

"RWT shall be entitled to deduct from the funds of the estate and/or trust, its fees and disbursements calculated in accordance with its published Scale of Fees as at the date of execution of the will and it shall be final and conclusive, unless it is subject to the terms and conditions