JUDGMENT

Abdul Hamid Embong J:

By this application, the plaintiff (LF) seeks to revoke the grant of probate to the defendant (EC) and to remove forthwith EC's appointment as the executor and trustee of the estate of Leila Dulcie Allana LaBrooy (LaBrooy). The determination of this application will, in my view, substantially resolve three other related applications in encl. 8 of OS. 24-1146-1999 and encls. 1 & 6 in OS. 24-891-2000.

Although learned counsel for the defendant had contended that the matters under consideration are too contentious to be determined by affidavits, that there are triable issues and that, thus, the court should hear viva voceevidence, this court found that there was no such necessity and that this application should proceed as it originated and affidavit evidence could sufficiently determine this matter. On that basis, this application was proceeded with, and submissions heard. Notice to cross-examine witnesses was declined by the court.

Background Facts

On 11 February 1999 LaBrooy passed away and left a will dated 24 April 1996 and executed two codicils dated 17 April 1997 and 15 August 1997. Probate was obtained by her appointed co-executors and trustees namely the plaintiff (LF) and the defendant (EC) and the grant of probate was issued on 22 September 1999 by the High Court at Ipoh. LF is the former husband of one Patricia Frances O'Hara (Patricia), an adopted daughter of LaBrooy and the main beneficiary under her will, whilst EC is the nephew of LaBrooy. On 23 April 1959, a family company called CH La Brooy Sdn Bhd (CHLSB) was incorporated with LaBrooy appointed as its permanent managing director. On 8 April 1996 a transfer of certain godowns (the Godown Properties) was effected to CHLSB for a consideration of RM1.6 million purportedly raised from the issue of 240,000 new shares in CHLSB valued at RM6.67 per share (equalling RM1,680,000).

There were two matters that disquieted both LF and the beneficiary, Patricia, giving rise to suspicions of misconduct on EC's part. These were related to the disposal of the estate's assets namely, the transfer of the Godown Properties to CHLSB and secondly, the transfer of LaBrooy's shares in CHLSB to EC and his relatives. These now became the basis of the complaints by Patricia who then requested LF to initiate this proceeding.

It was submitted for the plaintiff that these transactions were tainted or improper and that these assets should be included as assets of the estate for distribution to the beneficiaries. It was also submitted that EC, at the relevant time was a substantial shareholder and a director in charge of CHLSB and that had placed him in a position of serious conflict of interest in relation to his duties and obligations as an executor and trustee under the will, and as such, his removal is warranted in law and in fact. For the defence it was submitted, that suspicion alone also does not amount to a fraud and that fraud should have been specifically pleaded. It was also contended that there was no evidence that EC had exerted undue influence over LaBrooy and that her old age did not imply her lack of acumen. In reply to LF's allegation that EC was out of the country for more than 12 months, it was submitted by EC's counsel that EC had a permanent address in Ipoh as evidenced by his identity card and that he owns substantial furniture in a house belonging to his aunt who had allowed her house to be used as EC's permanent address in Malaysia. It was further contended that EC had done all he could as an executor of LaBrooy's will and that the allegations of impropriety and derelection of duties thrown at him were false and not proven. Essentially, the defence stand was that there were disputes of acts and triable issues to be determined, and as such an open court trial was called for.

The reliefs sought by the plaintiff here is two-pronged. One is for the revocation of the probate and the other is for the removal of the defendant as executor and trus