Will – Whether executor can refuse to distribute estate to other beneficiaries in acocrdance to the terms of a will on the grounds that executor had incurred expenses in looking after the testator.

Simon Lim v Colonel Christiam Lim Xiao Ping & Anor [2016] 5 CLJ 280 CA

• The ceceased passed away on 14 June 2011, leaving a last will and testament (‘the said last will’). She had two sons; one of which was Simon (the ‘appellant’).
• The beneficiaries under the said last will were the appellant and two grandchildren of the deceased who were the children of the appellant’s brother.
• The appellant was named the executor of the estate of the deceased which consisted of two pieces of land and monies in fixed deposit accounts held in various banks.
• The will bequeathed the appellant with a piece of land and fixed deposits in two banks.
• The other piece of land and fixed deposits in four other banks were to be shared equally by the tw grandchildren of the deceased.
• However, having transferred a piece of the land (‘Lot 1071’) and all the monies in the fixed deposit account to himself as bequeathed in the said last will, the appellant refused to transfer the other piece of land (‘Lot 1070’) and the monies in the bank to the grandson of the deceased named in the said last will.
• The named grandsons of the deceased (the ‘plaintiffs/respondents’) thus filed an action in the High Court against the appellant to (i) transfer the said land to them; and (ii) trasnmit and pay out the money in the fixed deposit accounts to them.
• The High Court judge allowed the Plaintiffs’claim.
• The appellant argued that the had spent a considerable amount of money on caring for the deceased’s medical expenses, thus it must have been agreed by the deceased that it was recoverable or claimable.
• Hence, the present appeal.

• It was pertinent to note and consider that the appellant had his own business while the deceased was staying with him
• For the appellant to recover the money that he had spent on the deceased in taking care of her before her death, the spending must be exclusively for the benefit of the testator then.
• If it was mixed expenditure which included also expenses for the benefit of the appellant and his family; those expenses must be separated and excluded.
• In this case, the appellant had not produced or exhibited any documetary evidence of the various payments that he had made throughout the years in taking care of the deceased.
• The appellant also did not show evidence that the estate did not have sufficient funds to pay for all the bills and expenses incurred by the testator, so much so that he had to meet the testator’s liabilities by dipping into his own pocket.
• In fact, the last will of the deceased was silent on the recoverability of the money spent for her benefit by the named executor of the last will, thus the appeal is dismissed.