Aag v Estate of Aah, Deceased

• Jurisdiction: Singapore
• Judgment Date: 19 November 2009
• Date: 19 November 2009
• Docket Number: Civil Appeal No 26 of 2009
• Court: Court of Appeal (Singapore)

AAG

Plaintiff

and

Estate of AAH, deceased

Defendant

[2009] SGCA 56

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 26 of 2009

Court of Appeal

Family Law–Legitimacy–Effects of illegitimacy–Whether illegitimate child could claim maintenance under Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed)–Sections 2 and 3 Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed)

Family Law–Maintenance–Child–Illegitimate child–Whether illegitimate child could claim maintenance under Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed)–Sections 2 and 3 Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed)

Statutory Interpretation–Construction of statute–Purposive approach–Whether English courts' interpretation of Inheritance (Family Provision) Act 1938 (UK) should be followed where Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed) adopted provisions of Inheritance (Family Provision) Act 1938 (UK)–Section 9A Interpretation Act (Cap 1, 2002 Rev Ed)

The appellant in this action sought, on behalf of her two illegitimate daughters, for maintenance from the estate of the deceased, the respondent, under the Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed) ("the IFP (S) Act"). The High Court had dismissed her application. The sole issue before the High Court, as well as before the Court of Appeal, was whether an illegitimate child could claim for support under the IFP (S) Act.

Held, dismissing the appeal:

(1) The IFP (S) Act was enacted to introduce into Singapore the provisions of the Inheritance (Family Provision) Act 1938 (UK) ("the IFP (UK) Act 1938"). The established interpretation of the original IFP (UK) Act 1938 by the English courts was that illegitimate children were not entitled to maintenance under it: at [8] to [11].

(2) The statement of Minister Yong Nyuk Lin in his Second Reading speech on the Inheritance (Family Provision) Bill that " [t]he provisions relating to family provision appear to have worked well in England and it is proposed to introduce them into Singapore" had to necessarily mean that the Minister agreed with the restrictive interpretation put to the terms "son" and "daughter" by the English courts. That was Parliamentary intention and the Court was obliged to give effect to such intention: at [12] and [40].

(3) The law seemed in general to discriminate against illegitimate children. This flowed from the perception that the family within marriage was considered to be the only acceptable social grouping in which to raise children. There was no evidence whatsoever that there had been a change in social norms in Singapore such that society generally equated an illegitimate child with a legitimate child: at [23] and [33].

(4) The ordinary literal meaning of the words "child", "son" and "daughter", which would include illegitimate children, should not apply in interpreting the words "son" and "daughter" in s 3 (1) of the IFP (S) Act: at [37], [38] and [39].

(5) The context of the IFP (S) Act, where the title of which referred to "family provision" and s 3 (1) (a) of which referred to a person who dies "leaving a wife or husband", would militate against reading the words "daughter" and "son" to encompass an illegitimate child of the deceased. Moreover, under the common law, reference in a statute to "child" or "children" would prima facie mean a legitimate child or legitimate children: at [38].

(6) To permit an illegitimate child to claim for maintenance against his or her deceased parent's estate would be to indirectly allow that child to claim for a share in the intestate parent's estate, contrary to the provisions of the Intestate Succession Act (Cap 146, 1985 Rev Ed): at [38].

(7) The IFP (S) Act was only available to legitimate children notwithstanding the fact that at the time the Act was enacted the equivalent to s 68 of the Women's Charter (Cap 353, 2009 Rev Ed) had already obliged a natural parent to maintain his or her illegitimate child. That obligation to maintain existed only while the natural parents were alive: at [39].

[Observation: The Court urged the Legislature to seriously consider making the necessary reforms to enable an illegitimate child to claim for maintenance under the IFP (S) Act. It would be unfair to punish innocent children by denying them maintenance which a legitimate child would receive upon his father's death, particularly where the father, as in the present case, had been supporting the child until his death: at [41] to [43].].

Choo Eng Choon, deceased, In the Matter of the Estate of (1908) 12 SSLR 120 (refd)

Constitutional Reference No 1 of 1995 [1995] 1 SLR (R) 803; [1995] 2 SLR 201 (refd)

Galloway v Galloway [1956] AC 299 (refd)

Hill v Crook (1873) LR 6 HL 265 (refd)

Makein v Makein [1955] Ch 194 (refd)

Pepper (Inspector of Taxes) v Hart [1993] AC 593 (refd)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 (refd)

Victor Chandler International Ltd v Customs and Excise Commissioners [2000] 1 WLR 1296 (refd)

Adoption of Children Act (Cap 4,1985 Rev Ed)s 4 (4)

Civil Law Act (Cap 43,1999 Rev Ed)s 20

Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed)ss 2, 3 (1) (consd);ss 1 (2),3 (1) (a),3 (1) (b),3 (1) (c),3 (1) (d)

Insurance Act (Cap 142,2002 Rev Ed)s 61

Interpretation Act (Cap 1,2002 Rev Ed)s 9A (consd)

Intestate Succession Act (Cap 146, 1985 Rev Ed)s 3

Legitimacy Act (Cap 162,1985 Rev Ed)s 10 (1)

Muslims Ordinance 1957 (No 25 of 1957)s 41

Pensions Act (Cap 225,2004 Rev Ed)First Schedulepara 21

Statute Law Revision Act 1969 (No 14 of 1969)

Straits Settlements Summary Criminal Jurisdiction Ordinance No XIII of 1872

Women's Charter (Cap 353,2009 Rev Ed)ss 68, 110,111

Family Law Reform Act 1969 (c 46) (UK)

Family Law Reform Act 1987 (c 42) (UK)s 1 (1)

Inheritance (Family Provision) Act1938 (c 45) (UK)

Inheritance (Provision for Family and Dependants) Act 1975 (c 63) (UK)

George Pereira and Tan Thong Young (Pereira & Tan LLC) for the appellant

Lim Choi Ming (KhattarWong) for the respondent.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

Introduction

1 This is an appeal against the judgment of the High Court dated 11 February 2009 which refused an application by the appellant who was seeking, on behalf of her two illegitimate daughters, for maintenance from the estate of the deceased ("the Deceased"), the respondent, under the Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed) ("the IFP (S) Act"). The sole issue before the court below, as well as before us, was whether an illegitimate child is entitled to claim for support under the IFP (S) Act.

2 The Deceased died intestate on 11 February 2008 and left behind a lawful wife and four legitimate daughters born out of that union. However, as mentioned above, he had also fathered two illegitimate daughters ("the two daughters"), born in 1999 and 2001, with the appellant. It is not in dispute that the Deceased was the biological father of the two daughters and his name appeared on both their birth certificates. It is also not challenged that prior to his death, the Deceased was financially supporting the appellant and the two daughters.

3 On 28 August 2008, and pursuant to s 3 (1) of the IFP (S) Act, the appellant commenced proceedings by way of originating summons against the respondent estate, praying for, inter alia, an order that reasonable provision for the maintenance of the two daughters be assessed and granted.

The statutory provisions

4 We will, at this juncture, set out s 3 (1) of the IFP (S) Act.

3. - (1) Where, after the commencement of this Act, a person dies domiciled in Singapore leaving -

1. (a) a wife or husband;

2. (b) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;

3. (c) an infant son; or

4. (d) a son who is, by reason of some mental or physical disability, incapable of maintaining himself,

then, if the court on application by or on behalf of any such wife, husband, daughter or son as aforesaid (referred to in this Act as a dependant of the deceased) is of opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable provision for the maintenance of that dependant, the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or restrictions, if any, as the court may impose, be made out of the deceased's net estate for the maintenance of that dependant:

Provided that no application shall be made to the court by or on behalf of any person in any case where the disposition of a deceased's estate effected as aforesaid is such that the surviving spouse is entitled to not less than two-thirds of the income of the net estate and where the only other dependant or dependants, if any, is or are a child or children of the surviving spouse.

Section 2 of the IFP (S) Act defines "son" and "daughter" as follows:

2. In this Act, unless the context otherwise requires -

'son' and 'daughter', respectively, include a male or female child adopted by the deceased by virtue of an order made under the provisions of any written law relating to the adoption of children for the time being in force in Singapore, Malaysia or Brunei Darussalam, and also the son or daughter of the deceased en ventre sa mereat the date of the death of the deceased.

As can be seen from these provisions, the IFP (S) Act does not state whether the terms "son" and "daughter" include an illegitimate child. Or, putting it another way, the definition in s 2 of the IFP (S) Act does not expressly exclude an illegitimate child.

5 Prior to the present case, there does not appear...