Chang Min Tat FJ

(delivering the judgment of the Court): This is an appeal by an executor whose appointment has now been revoked by the High Court at the instance of his co-executor and three other beneficiaries. The appellant is the son of the co-executor, in fact, her eldest son, but appears to have fallen out of favour with her and to have antagonised his other brothers and sisters, or most of them. It is all very unfortunate.

By his will made on December 31, 1974, the testator, Khoo Boo Gong, appointed his wife, Madam Teoh Chooi Ghim, and their eldest son, the appellant, executors and trustees of his estate. He gave no power of appointment. Being apparently aware that the appellant was even then contemplating settling in Australia, he directed in his will that if the appellant should reside outside Malaysia at the time of his death, he, the appellant, should grant a power of attorney in respect of his duties as executor to anyone of his brothers, sisters or half-sisters residing in Malaysia except one of them who was expressly named. The testator died on June 12, 1975, leaving him surviving a wife, a concubine and in all 17 children, including the appellant.

After certain specific gifts, he devised and bequeathed all the residue of his estate to his named trustees and executors, upon trust to call in, sell and convert the same into money, without accountability for postponing such calling in, sale or conversion, upon trust to divine the net balance and pay to his wife, concubine and children in the shares stated in his will. He did however emphasise that the division and distribution were to be carried out without undue delay and to be as soon as possible. The estate was to be divided into 100 shares, the wife was to get 10 shares, the concubine 5, each son 5 and each daughter 4 shares, but the appellant was to get 15 shares.

Probate was granted to the wife and the appellant on May 31, 1976. The gross value of the estate appears to be in excess of $9 millions.

At the time of the testator's death, the appellant was resident in Australia. He returned to Malaysia in March 1976, proved the will and obtained probate. After making certain arrangements for the administration of the estate, he returned to his home in Australia. What he did not then do was to appoint one of his brothers or sisters or even half-sisters to be his attorney as executor in accordance with the terms of the will. Instead, he appointed an advocate and solicitor as a trustee, apparently to comply with section 40 of the Trustee Act 1949, since he was about to absent himself from Malaysia for a period exceeding 14 days. It is now said on his behalf that this appointment was not of an attorney for executorial duties under the will but the terms of the appointment disprove this contention. However, the appellant subsequently complied with the direction of the will and appointed one of his half-sisters as his attorney, one Khoo Cheng Kim, but only after an application had to be made to the court to compel him to do so. The appointment of Khoo Cheng Kim was much to the annoyance and chagrin of his mother, as she herself frankly admitted. There was not much love lost between her and the children of her husband's concubine. Be that as it may, the appellant had, in this one respect, at least, complied with one of the terms of the will.

We think it should be stated at this juncture what is so obvious but which is so apparently lost sight of; while the responsibility of getting in and administering the estate in accordance with the wishes and directions of the testator is that of the executors and trustees who had proved the will and accepted the trusts of the will by receiving probate, instead of undertaking the work themselves, they have the alternative of entrusting the work to solicitors. In point of fact, the appellant with the then concurrence of his mother had done so, the appointment of solicitors for the estate going to M/s. Shearn, Delamore & Co., a well-kno