12 December 2018
Foo Soon Yien
A and B were appointed as executors and trustees of the deceased’s will. They were also 2 of the beneficiaries of the deceased‘s will. Upon the deceased’s passing, A attempted to obtain probate in respect to the estate. For several months after the deceased’s passing, A made several requests to B to make a joint application for probate. However, these attempts were futile. Instead, B objected to A dealing with the assets and gave notice to A not to deal with any matters pertaining to the estate without B’s consent.
Concerned and frustrated that he would have to wait indefinitely, A applied successfully for a grant of probate himself without prejudice to the other co-executor’s right to apply for a further grant of probate and thereafter sought the Court’s guidance on whether he was entitled to administer the moveable and immovable property of the estate without B’s concurrence. Upon our advice, A applied pursuant to Order 80 Rule 2(2)(a) of the Rules of Court for an order that he as executor had the power despite B’s objection to:
Under Order 80 Rule 2(1) of the Rules of Court, an action may be brought for the determination of any question or for any relief which could be determined or granted, as the case may be, in an administration action. Order 80 Rule 2(2)(a) provides that the Court may determine any question arising in the administration of the estate of a deceased person.
Order 80 Rule 2(3)(a), (d) and (e) of the Rules of Court also allow, inter alia, for the following reliefs:
In Attorney-General v Ching Kwong Yew and another (executors of the estate of Ching Kwong Kuen, deceased)  1 SLR(R) 687;  SGCA 30, the Court held that an executor has a responsibility to take possession of all the property of the deceased and to pay the debts of the deceased and the estate. It was incumbent on an executor to act with due diligence while exercising his duties and he was duty bound to make the fullest enquiries while taking all necessary and reasonable steps to ascertain the total value of the deceased’s estate.
In Halsbury’s Laws of Singapore, it is stated that where there is more than one executor of the estate, an executor can bind the estate. In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, it is stated that if a power is given to two executors in the will, it will be exercisable jointly and severally.
The Court in Tacplas Property Services Pte Ltd v Lee Peter Michael (administrator to the estate of Lee Ching Miow, deceased)  1 SLR(R) 159 stated:
“As far as executors are concerned, it is accepted by a whole line of authorities that an executor (if there is more than one executor for the estate) can bind the estate.”
“[t]here were well-established judicial authorities for the proposition that the act of one executor could bind the estate and the other executors”.
The Court in Look Chun Heng & Anors v Asia Insurance Co Ltd  MLJ 33, also held that:
“co-executors however numerous are regarded in law as individual persons and that the acts of any one of them alone for the purposes of administration are deemed to be the acts of all as they have joint and entire authority over the whole of the any moveable property”.
Sir John Romilly in Smith v Everett (1859) 29 LJ Ch 236 stated that:
“…one of several executors has power to act so as to bind the estate, subject of course to any question of his liability to the parties interested in the estate for any impropriety of conduct, and subject to this also, that if there be any fraud or gross error in the settlement of the account it may be a ground for reopening it…. I am of opinion that the two executors had power to bind the [other executor].. and that she is bound thereby.”
Based on these authorities, the Court held in A’s favour stating that no further concurrence was required from B and that A was entitled to fulfil his duties in administering the estate. A then sold and converted the assets of the estate into monies to distribute amongst the beneficiaries named in the will.
This case illustrates that when two executors are appointed in a will and one does not want to discharge his duties, one of the executors may apply to Court to obtain a grant of probate without prejudice to the other co-executor’s right to apply for a further grant of probate. Additionally, when faced with the obstacle of an uncooperative co-executor to the administration of the estate, an executor may apply to Court to act unilaterally without concurrence from his co-executor.
Foo Soon Yien
Director, BR Law Corporation
Post date. Edit this to change the date post was posted. Does not show up on published site. 12/12/2018
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