www.shaproperty.com

Q MY OLDER sister, a widow, died in May. I did not know that she had appointed my youngest brother as sole executor and trustee, and had made him a beneficiary.

My younger sister and I are also named as her beneficiaries.

My youngest brother, being a lawyer, intended to use his law firm (a one-man firm) to apply for the Grant of Probate, but I objected to it.

Then he said he would get another law firm to do it. It has been almost two weeks now and there has been no update from him on this matter.

In the past, he had borrowed a huge sum of money from two of my older brothers and from my late sister to set up his law firm.

He has not returned any of the money. He is also in debt with a government body.

I have made inquiries with two banks, XYZ and ABC, which my late sister has accounts with.

XYZ told me it would give the allocated share of money directly to the three beneficiaries.

But ABC said it would follow the instructions of the one who has the Grant of Probate.

I am worried that once my youngest brother gets the bulk of this money from ABC, there is a chance that he might not release my share to me.

Is there any way that I could apply to the court to seek an order requiring the bank to release the money directly to the three beneficiaries after the deduction of my sister's funeral and hospitalisation charges?

Can my late sister's flat be transferred to my youngest brother who is the sole executor?

If he were to sell it and all sales proceeds go directly to him, there is a chance that he might not give us our share of the money. Where can I get help to stop him before such situations happen?

A I NOTE your strong sentiments about the appointment of your youngest brother by your late sister as the sole executor and trustee of her will.

You must accept the fact that so long as the will is valid, having satisfied all the necessary requirements of the Wills Act, you would be hard put to challenge his appointment.

It is for this reason that it is sometimes said that a will allows the deceased to rule from the grave.

Notwithstanding your allegation that your youngest brother had borrowed a huge sum from your late sister that has not been repaid, your late sister was obviously quite comfortable and happy to appoint him as the sole executor and trustee of her will.

The choice of such an executor and trustee must be taken as proof of the trust and confidence reposed by your late sister in him.

There are no special qualifications required for someone to be appointed except that he must be above 21 years of age (so that he could hold immovable property) and must not be a bankrupt.

The executor and trustee wears two hats in the administration of the estate.

Strictly speaking, he wears the hat of an executor for the purposes of gathering all the assets of the estate and for carrying out all the duties and tasks prior to the distribution.

He wears the hat of a trustee in the distribution of the estate among all the beneficiaries.

Although there is a thin line between these two roles and functions, it is settled law that even in carrying out his duties as an executor, he is regarded as a trustee.

In short, he has certain fiduciary duties to act in the utmost good faith and with a clear conscience.

All the monies standing to the credit of your late sister will be released to your youngest brother on production of the Grant of Probate.

With the exception of the CPF monies that are paid directly to the beneficiaries named in the prescribed nomination form, banks do not normally release monies to beneficiaries directly.

It would be most prudent for him to open an estate account into which all the monies of the estate could be deposited.

Such an account serves as a single transaction point for the deposit and withdrawals of monies.

It also makes for an easier paper trail.

Again, for prudence, your brother may wish to give you all copies of the bank statements so that you are kept informed of all transactions in the estate account.

Likewise, for the purposes of selling your late sister's flat, it would be transferred in name to your youngest brother and he would then be the one with the legal capacity to sell it and to convey a good title to the buyer.

If you are afraid that you may not get your share, in view of the fact that your brother is a trustee, you would be able to hold him accountable.

If he fails to carry out his duties of distribution according to the terms of the will, he may be liable for a criminal breach of trust if, for example, you are able to show an element of fraud, or he may also be liable for a civil breach of trust, in the absence of fraud.

You could go to the authorities or start an action against him in court.

It is only in very rare and specific instances that someone else whom the court considers the fittest to administer an estate may be appointed a trustee. Examples of such instances include the following: