ADG (executor and trustee of the estate of B (alias C), deceased) v ADH and another (D and others, interveners)

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 28 September 2009
• Neutral Citation: [2009] SGHC 220
• Date: 28 September 2009
• Subject Matter: Succession and Wills,Construction,Lapse
• Docket Number: Originating Summons No 687 of 2008
• Published date: 05 March 2010
• Defendant Counsel: Alvin Yeo SC and Sim Bok Eng (WongPartnership LLP),Deborah Barker SC (KhattarWong),T P B Menon and Vincent Yeoh (Wee Swee Teow & Co),G Raman (G R Law Corporation)
• Court: High Court (Singapore)
• Plaintiff Counsel: Kelvin Tan and Daniel Chia (Drew & Napier LLC)

28 September 2009 Judgment reserved.

Belinda Ang Saw Ean J:

1 This Amended Originating Summons is brought to construe the last will and testament of [B] also known as [C] (“the testator”). The applicant is the [ADG], the executor and trustee of the estate of the testator.

2 The facts of this case are not in dispute. The testator died on 28 January 2006 surviving him three sons, [D], [E] and [F] (hereinafter collectively referred to as “the brothers”) and a daughter, [G]. The eldest son, [H], also known as [J], predeceased the testator; he tragically died in a car accident on 18 December 2004.

3 The applicant is represented by Mr Kelvin Tan. Mr TPB Menon appeared for the defendants, [ADH] and [K] alias [L]. The defendants are the executors of [J]’s estate. Representing the interveners who are named beneficiaries in the testator’s last will and testament dated 29 November 1996 (“the Will”) are: Dr G Raman who acts for [D], Mr Alvin Yeo SC and Ms Sim Bock Eng appear on behalf of [E] and [F], and Ms Deborah Barker acts for [J].

4 My attention was drawn to the testator’s direction in cl 13 of the Will which states that if any beneficiary should challenge the Will, the challenger’s share would be forfeited. With that clause in mind, Mr Yeo explained that his clients’ intervention in the proceedings was to assist the court in construing cl 9 of the Will; it was not their intention to challenge the Will. The same position was adopted by Ms Barker, Dr Raman and Mr Menon. In that regard, the defendants and interveners urged the court to take cognisance of the observations of their legal representatives.

Clause 9 of the Will

5 The issue in this Amended Originating Summons turns upon the true construction of cl 9 of the Will. Clause 9 reads:

I GIVE DEVISE and BEQUEATH all the rest and residue of my property both real and personal of whatsoever nature and wheresoever situate to which I am or may hereafter become entitled in possession or reversion unto the Company (hereinafter referred to as “my Trustees”) UPON TRUST to sell call in and convert into money all such parts of my real and personal estate as shall not consist of money with power at my Trustees’ absolute discretion to postpone for such period as they may think fit the sale calling in and conversion of the whole or any part or parts thereof and at their absolute discretion to retain the same or any part thereof in the state or upon the investments in or upon which the same shall be at the time of my death without being responsible for any loss which may be incurred by their so doing and my Trustees shall stand possessed of the said moneys and the investments for the time being representing the residue of my estate (hereinafter called “my residuary estate”) UPON TRUST:- a) To purchase an annuity in the annual sum of Singapore Dollars Fifteen thousand (S$15,000) for the benefit of my sister [M] provided she shall survive me for a period of one month. b) As to the sum of Singapore Dollars Two million five hundred thousand ($2,500,000) for my daughter [G] to pay the same together with any accumulations of income thereon upon the expiry of one year after the date of the death of my former wife [N]. If my said daughter [G] shall marry with the consent of my Trustees and my eldest son [H] also known as [J] provided he shall then be living whom I require to be satisfied that the marriage is for her happiness and not primarily for the purpose of inheriting this bequest then I give and bequeath to her the sum of Singapore Dollars One hundred thousand (S$100,000) which gift shall be in addition to and not as part of the said bequest of Singapore Dollars Two million five hundred thousand (S$2,500,000). I further direct that the said gift of Singapore Dollars One hundred thousand (S$100,000) shall be paid on my said daughter entering into her first lawful monogamous marriage. I further declare that if my said daughter [G] shall give my Trustees and my eldest son [H] also known as [J] her written undertaking that she intends to remain a spinster for the remainder of her life then I give and bequeath to her the sum of Singapore Dollars One hundred thousand (S$100,000) in lieu of the gift payable to her on marriage. If my said daughter [G] shall fail to survive my former wife [N] by the period of one year as aforesaid the capital shall belong to the estate of my said daughter [G] and she shall have a general power of appointment over the same. c) As to the sum of Singapore Dollars One million (S$1,000,000) for my second son [D] to pay the same together with all accumulations of income thereon upon the expiry of one year after the date of the death of my former wife [N]. If [D] shall fail to survive my former wife [N] by the period of one year as aforesaid the capital shall belong to the state of my said son [D] and he shall have a general power of appointment over the same. d) As to the sum of Singapore Dollars One million (S$1,000,000) for my third son [E] to pay the same together with all accumulations of income thereon upon the expiry of one year after the date of the death of my former wife [N]. If [E] shall fail to survive my former wife [N] by the period of one year as aforesaid the capital shall belong to the estate of my said son [E] and he shall have a general power of appointment over the same. e) As to the sum of Singapore Dollars One million (S$1,000,000) for my fourth son [F] at present care of [address redacted] to pay the same with all accumulation of income thereon upon the expiry of one year after the death of my former wife [N]. If [F] shall fail to survive my former wife [N] by the period of one year as aforesaid the capital shall belong to the estate of my said son [F] and he shall have a general power of appointment over the same. If my said son [F] shall at the date of my death be the father of a legitimate child either born or en ventre sa mere I GIVE and BEQUEATH to my said son [F] the sum of Singapore Dollars Five hundred thousand (S$500,000) in addition to and not by way of deduction from the said gift of Singapore Dollars One million ($1,000,000). f) As to the sum of Singapore Dollars One million (S$1,000,000) jointly for my two grand-sons [P] and [Q] the children of my son [H], also known as [J] to pay the same equally to or to the survivor of my said grand-children upon each of them attaining the age of twenty one (21) years. If either of my said grand-sons shall fail to survive and attain the age of twenty one (21) years then the gift to such grand-child shall lapse and be paid to the surviving grand-child. g) As to the sum of Singapore Dollars Five hundred thousand (S$500,000) to my grand-son [R] the child of my son [E] to pay the same together with all accumulations of income thereon to my said grand-child upon his attaining the age of twenty one (21) years. h) As to the sum of Singapore Dollars Five hundred thousand (S$500,000) equally to my grand-daughters [S] and [T] the daughters of my son [D] upon their attaining the age of 21 years. During the lives of each of my said daughter, sons and grand-children who are pecuniary beneficiaries and until each shall have attained a vested interest in his her or their respective bequests my Trustees shall pay the income arising upon each gift or part thereof to each of my said beneficiaries and in the case of any beneficiary below the age of twenty one (21) years to the parents or guardian of such beneficiary for use in the maintenance and education of such beneficiary. In the case of the gifts to my grand-sons [P] [Q] [R] my grand-daughters [S] and [T] and any other grand-child of mine referred to in the foregoing bequests, my Trustees may make advances from capital provided the sums shall be laid out in the fees and expenses of attending any course of education it being my express wish that my said grand-children shall be properly educated during their minority. Upon each of my said grand-children attaining the age of twenty one (21) years my Trustees shall pay to such grand-child the whole of the portion of the pecuniary bequest held for such grand-child and any accumulations of income thereon for his or her own absolute use and benefit. j) As to one half of my residuary estate after payment of my just debts, funeral and testamentary expenses and the pecuniary bequests hereinbefore listed to my son [H] also known as [J] at the expiration of one year after the death of the said [N]. If [H]. shall fail to survive my former wife [N] by the period of one year as aforesaid the capital shall belong to the estate of my said son [H]. and he shall have a general power of appointment over the same. I have made my son [H]. also known as [J] my substantial heir as I believe he will be able to assist his brothers and sisters and nephews and nieces in the event of any family difficulties arising. However, this expression is not to create any binding trust or commitment on the part of [H] also known as [J] to make any payments advances or gifts from his inheritance. k) As to the remaining one half of my residuary estate after payment of my just debts, funeral and testamentary expenses and the pecuniary bequests hereinbefore listed equally among my three sons [D], [E] and [F] at the expiration of one year after the death of my former wife [N]. If any of [D], [E] and [F] shall fail to survive my former wife [N] by the period of one year as aforesaid the capital shall belong to the estate or estates of the survivor or survivors of my said sons [D], [E] and [F] and he or them shall have a general power of appointment over the same. If any of my said children shall die before me then the share of such child so dying shall lapse and fall into residue.

The issues

6 The question for determination upon a true construction of cl 9 of the Will is as follows:

(a) Whether the gift of one-half of the residuary estate under cl 9(j) of the Will to the testator’s son [J] lapsed as [J] predeceased the...