AEL and others v Cheo Yeoh & Associates LLC and another

• Judge: Chan Seng Onn J
• Judgment Date: 02 July 2014
• Neutral Citation: [2014] SGHC 129
• Subject Matter: Causation,Duty of care,Negligence,Tort
• Published date: 10 July 2014
• Year: 2014
• Docket Number: Suit No 822 of 2011/E
• Citation: [2014] SGHC 129
• Court: High Court (Singapore)
• Defendant Counsel: Chandra Mohan Rethnam and Mrinalini Singh (Rajah & Tann LLP)
• Plaintiff Counsel: Andrew Ho Yew Cheng (Engelin Teh Practice LLC)
• Hearing Date: 15 January 2014,16 January 2014,17 January 2014,23 January 2014,22 January 2014,29 January 2014,28 January 2014,21 January 2014,16 April 2014

Chan Seng Onn J: Introduction

The late [X] (“the Testator”) was an Indonesian businessman who had made a will (“the New Will”) for the distribution of his assets in Singapore. The New Will was made with the legal assistance of the second defendant (“Cheo”), a solicitor of the first defendant firm, and it was intended to replace an earlier will (“the Old Will”) which the Testator had made jointly with his wife who predeceased him. However, the New Will was later discovered to be defective as it had been executed in the presence of only one witness, hence failing to comply with s 6(2) of the Wills Act (Cap 352, 1996 Rev Ed). This discovery was made only after the death of the Testator when an application for probate was rejected. In the event, letters of administration were applied for and granted and the Testator’s estate was, accordingly, distributed under the Intestate Succession Act (Cap 146, 1985 Rev Ed) (“ISA”).

The 1st to 3rd plaintiffs are three of the Testator’s six children. The 4th to 18th plaintiffs are the Testator’s 15 grandchildren. They are, collectively, the disappointed beneficiaries under the New Will which they claim was rendered defective because of Cheo’s negligence in properly supervising its execution. Accordingly, they bring this action in tort to claim, primarily, for damages equivalent to the difference in amount which they would have received under the terms of the New Will and that which they actually did receive under intestacy. Additionally, the plaintiffs also claim for the reimbursement of expenses which they paid to Indonesian solicitors in connection with their application for letters of administration.

After careful consideration, I am allowing the plaintiffs’ claim. I now proceed to set out the facts in greater detail before providing the reasons for my decision.

Background facts The Testator and his family

The Testator was an Indonesian businessman who married one [Y] in 1954.1Agreed Bundle vol 1 at pp 25–27 He lived in Indonesia where he carried on, at various times, a construction business2Notes of Evidence dated 15 January 2014, Day 1, at p 57 lines 15–32 as well as other businesses which traded in goods such as flour, textiles and cigarettes.3Notes of Evidence dated 15 January 2014, Day 1, at p 58 lines 5–8 The Testator thus accumulated a variety of assets in Indonesia during his lifetime which included shophouses,4Notes of Evidence dated 15 January 2014, Day 1, at p 172 lines 15–17 pieces of land,5Notes of Evidence dated 15 January 2014, Day 1, at p 75 lines 26–27 monies in bank accounts,6Court exhibit tendered as “P5” on 28 January 2014, Day 7 and other personal effects. Importantly, he also had assets in Singapore which consisted solely of monies held in various bank accounts. It is with the distribution of these Singapore assets, specifically, that the present dispute is concerned.

Together with his wife, the Testator has four sons—[S], [M], [D] and AEN—and two daughters—AEL and AEM. Of these six children, only three are plaintiffs in this suit, namely, AEL, AEM and AEN. They are named, in that order, as the 1st to 3rd plaintiffs. While the Testator’s three other children are not parties to this suit, I should mention here that they also have some involvement in these proceedings. All three of them have sworn a joint affidavit7Joint Affidavit of Evidence-in-Chief of AEL, AEM, AEN, [S], [M] and [D] dated 20 June 2013 (“Joint AEIC”) together with their plaintiff siblings while [M] and [D] also gave evidence at the trial.

All the Testator’s children are adults in their fifties or sixties8Notes of Evidence dated 15 January 2014, Day 1, at p 14 line 10 – p 15 line 4 and, with the exception of AEL, they currently reside in different parts of Indonesia.9Notes of Evidence dated 15 January 2014, Day 1, at p 19 lines 24–29 AEL moved to Singapore in the mid-1980s10Notes of Evidence dated 15 January 2014, Day 1, at p 19 lines 30–31 and has been living here since. She would thus help the Testator when he came to Singapore to conduct his affairs, for example, by driving him to the bank.11Notes of Evidence dated 15 January 2014, Day 1, at p 121 lines 10–12 and at p 131 lines 7–11

All the Testator’s children also have children of their own (ie, the Testator’s grandchildren). By the time this action was brought, the Testator had a total of 15 grandchildren who are the 4th to 18th plaintiffs in this suit.

The Old Will

The Testator executed the Old Will jointly with his wife in Singapore on 16 November 1990 to provide for the distribution of their assets in Singapore. 12Agreed Bundle vol 1, at pp 47–49 and pp 51–53 The Old Will stipulates that, upon the death of either the Testator or his wife, it can be revoked by the surviving spouse. However, if the Old Will is not so revoked, then the assets are to be distributed in the following manner upon the death of the surviving spouse: 20% to AEN, 10% each to the remaining five children, and 30% to be divided equally among all the grandchildren.

The New Will

Some 14 years after the Old Will was made, the Testator’s wife passed away on 29 January 2005.13Agreed Bundle vol 1 at p 60 Thereafter, the Testator sought to revoke the Old Will and alter the distribution contemplated therein by executing the New Will. To that end, he sought the legal assistance of Cheo.

Correspondence prior to execution of the New Will

Cheo’s evidence is that, sometime in April 2006, the Testator made first contact with him via a telephone call.14Affidavit of Evidence-in-Chief of Johnny Cheo Chai Beng dated 28 June 2013 (“Cheo’s ’s Affidavit”) at para 5 During this telephone call, the Testator and Cheo arranged for a face-to-face meeting at the office of Citibank Singapore (“Citibank”) along Church Street to discuss the terms of the New Will.15Cheo’s Affidavit at para 6

At the meeting in Citibank’s office, the Testator, who was accompanied by AEL, told Cheo that the New Will was to provide for the distribution of his assets in Singapore which consisted solely of monies in accounts with Citibank. Importantly, it is common ground between the parties that the Testator had also given a notarised copy of the Old Will16Agreed Bundle vol 1 at pp 51–53 to Cheo to aid in the latter’s drafting of the New Will.17Cheo’s Affidavit at para 8; Plaintiffs’ Closing Submissions dated 12 March 2014 (“Plaintiffs’ Closing Submissions”) at para 11

Subsequently, on 13 April 2006, Cheo sent the Testator and AEL a draft copy of the New Will by facsimile and email respectively.18Agreed Bundle vol 1 at pp 64–65 Minor amendments were made and the execution of the New Will was then arranged to take place at Citibank’s office on 17 April 2006. According to Cheo’s account, this arrangement to execute the New Will was made during a telephone discussion which he had with AEL on 15 April 2006. Cheo stated that AEL first asked if both she and Cheo could be witnesses to the execution of the New Will. Cheo agreed to be a witness himself but advised AEL that she could not be a second witness as she was a beneficiary under the New Will.19Cheo’s Affidavit at para 15 It was significant, according to Cheo, that AEL then proposed, either of her own initiative or on instructions from the Testator, that the Testator would procure one of the Citibank officers to be the other witness to the New Will’s execution.20Cheo’s Affidavit at para 16

Execution of the New Will and its contents

On 17 April 2006, the Testator, again accompanied by AEL, met Cheo at Citibank’s office as arranged. It is undisputed that the execution of the New Will was then solely witnessed by Cheo.21Plaintiffs’ Lead Counsel Statement dated 22 November 2013 at p 7; Defendants’ Lead Counsel Statement dated 22 November 2013 at p 7 Thereafter, Cheo rendered the Testator an invoice22Agreed Bundle vol 1 at p 77 for professional fees and disbursements amounting to a total of $340 which the Testator duly paid.23Agreed Bundle vol 1 at p 81

I pause at this juncture to mention two points regarding the contents of the New Will. First, the New Will, as drafted by Cheo, appointed both AEL and AEN as the “sole [t]rustees” of the Testator’s estate. No executors have been explicitly appointed as such. Second, the New Will provides that, upon the Testator’s death, his estate is to be distributed in the following manner: 20% each to the 1st to 3rd plaintiffs, 10% to [S], and 30% to be distributed equally among all his grandchildren.24Agreed Bundle vol 1 at pp 73–75 Essentially, the difference between this distribution and that under the Old Will (at [8] above) is that the Testator intended to completely disinherit two of his sons, namely [M] and [D], of their 10% shares in his estate while, at the same time, increasing the shares of each of his two daughters by 10%. The shares of [S], AEN and the Testator’s grandchildren remain unaffected. I summarise these differences in distribution in a tabular form here:

	Testator’s children	Testator’s grandchildren
[M]	[D]	[S]	AEL (1st Pf)	AEM (2nd Pf)	AEN (3rd Pf)	4th to 18th Pfs
Old Will	10%	10%	10%	10%	10%	20%	30%
New Will	0%	0%	10%	20%	20%	20%	30%
+/-	-10%	-10%	-	+10%	+10%	-	-

Correspondence subsequent to execution of the New Will

After the New Will was executed, Cheo did not have any further direct communication with the Testator.25Cheo’s Affidavit at para 24 However, he did inform AEL by email two days later that he had notified the relevant authorities about the New Will’s execution and that she should convey this to her father. 26Agreed Bundle vol 1 at p 83 This was the final correspondence between AEL and Cheo until after the Testator’s death.27Cheo’s Affidavit at para 27

Death of the Testator

The Testator died some four years later on 24 November 201028Agreed Bundle...