Shiraz Abidally Husain and Another (executors of the estate of Abidally Abdul Husain, deceased) v Husain Safdar Abidally and Others

• Judge: Tan Lee Meng J
• Judgment Date: 27 May 2009
• Neutral Citation: [2009] SGHC 130
• Citation: [2009] SGHC 130
• Defendant Counsel: Gopalan Raman (G Raman Law Corporation)
• Published date: 27 May 2009
• Plaintiff Counsel: Mirza Namazie and Chua Boon Beng (Mallal & Namazie)
• Date: 27 May 2009
• Docket Number: Originating Summons No 1440 of 2008
• Court: High Court (Singapore)
• Subject Matter: Principles for awarding commission,Executors,Whether professional assistance should affect quantum of commission,Probate and Administration

27 May 2009

Tan Lee Meng J:

1 The plaintiffs, Mr Shiraz Abidally Husain (“Mr Shiraz”), and his sister, Mrs Salma Moiz nee Salma d/o Abidally Abdul Husain (“Mrs Salma”), are the executor and executrix respectively of the estate of their late father, Mr Abidally Abdul Husain (“the deceased”). They claimed a commission of $60,000 from the estate for administering the estate, which is worth more than $6,000,000, for more than 5 years. The first defendant, Mr Husain Safdar Abidally (“Mr Safdar”), the plaintiffs’ sibling and the father of the 2nd to 4th defendants, asserted that the plaintiffs should not be paid any commission. After hearing the parties, who are all beneficiaries of the estate, I allowed the plaintiffs’ claim and now give the reasons for my decision.

2 The deceased, a Muslim, died in Singapore on 16 May 2003. He was survived by 2 sons, 4 daughters and a number of grandchildren. Under clause 3(a) of his will, he bequeathed one-third of his estate to his grandchildren in equal shares, to be distributed 5 years after his death. Under clause 3(b) of his will, he directed that the remaining two-thirds of his estate was to be held on trust for 5 years, after which it was to be distributed to his children.

3 A claim by an executor of an estate for a commission is governed by s 66(1) of the Probate and Administration Act (Cap 251, 2000 Rev Ed), which provides as follows:

The court or a judge may in its or his discretion allow the executors or administrators a commission not exceeding 5% on the value of the assets collected by them, but in the allowance or disallowance of such commission the court or judge shall be guided by its or his approval or otherwise of their conduct in the administration of the estate.

[emphasis added]

4 The plaintiffs, who pointed out that their claim for a commission of $60,000 is less than 1% of the value of the estate, contended that they were entitled to the sum claimed because they had conducted the administration of the estate in a proper manner for more than 5 years. It was the deceased’s instructions that his assets be distributed among his beneficiaries 5 years after his death.

5 In Tan Soo Lock v Tan Jiak Cho and Anor [1930] SSLR 38 (“Tan Soo Lock”), a decision of the Straits Settlements Supreme Court, Murison CJ stressed that the payment of commission to those involved in the administration of estates is at the discretion of the court. He pointed out that the commission payable varies according to the nature of the estate administered and the work done by the executor. Furthermore, the commission should be less where considerable costs have been incurred by the estate for professional assistance.

6 The plaintiffs asserted that apart from routine duties connected with the administration of the estate for five years, they had to manage two of the deceased’s properties, namely, No 28 Fernwood Terrace #14-33 and No 3 Haigville Drive. The Fernwood Terrace property was initially tenanted but the tenants disappeared without giving proper notice. Subsequently, the plaintiffs had to arrange for the sale of both properties. Furthermore, the deceased’s will provided that pending the distribution of one-third of the estate to the grandchildren in equal shares 5 years after his death, the income earned on that one-third share...