APZ (by his litigation representative MC) v AQA and another

• Judge: Belinda Ang Saw Ean J
• Judgment Date: 13 April 2011
• Neutral Citation: [2011] SGHC 94
• Citation: [2011] SGHC 94
• Plaintiff Counsel: Lim Bee Li and Irving Choh (KhattarWong)
• Docket Number: Originating Summons No 1034 of 2009
• Published date: 26 April 2011
• Defendant Counsel: Andrew Tan (Andrew Tan Tiong Gee & Co)
• Subject Matter: Family Law
• Hearing Date: 26 March 2010,16 September 2010,19 May 2010,30 June 2010,26 January 2010,19 November 2010,02 August 2010
• Court: High Court (Singapore)

Belinda Ang Saw Ean J: Introduction

This Originating Summons No 1034 of 2009 (“OS 1034”) was brought, initially, in the name of [MC] under the Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed) (“IFPA”). OS 1034 was amended to enable the plaintiff, [APZ] (hereafter referred to as “the son” or “the plaintiff”) to sue by his mother, [MC], as his litigation representative (“the mother”). The defendants are the daughters of the deceased, [MB] from his first marriage. They were named in OS 1034 as the trustees of the estate of their late father. Counsel for the defendants, Mr Andrew Tan, informed the court that the second defendant, [D], had renounced Probate. Accordingly, Grant of Probate was issued in favour of the first defendant, [AQA] on 26 March 2009.

Background facts

The mother was married to [MB] on 21 April 1998. At the time of the marriage, the mother was 34 years old, and [MB] was considerably older, 68. The son was born on 13 June 1998. He suffers from Autistic Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). In May 2001, [MB] commenced divorce proceedings, and a Decree Nisi was granted on 15 May 2002.

At the hearing on ancillary matters on 25 May 2005, DJ Laura Lau, inter alia, ordered: (a) Lump sum maintenance of $20,000 to the mother; (b) Monthly sum of $650 as maintenance for the son; (c) A sum of $21,478.44, being the net sale proceeds of the matrimonial flat, to be divided equally between [MB] and the mother.

The parties appealed against the 25 May 2005 Order. In her appeal, the mother prayed, inter alia, for lump sum maintenance of $200,000 for the son, and lump sum maintenance of $30,000 for herself. The cross appeals in RAS 720042/2005 and RAS 720043/2005 were dismissed by Justice Tan Lee Meng on 25 January 2006. The neutral citation of DJ Lau’s written Grounds of Decision is MB v MC [2005] SGDC 181.

A few months later, the mother tried to vary the 25 May 2005 Order by filing Summons No 650212/2006 (“the 2006 Summons”). In the 2006 Summons, the mother wanted: (a) [MB] to pay maintenance for the son at $2,500 per month, alternatively, a lump sum of $250,000 for the son; and (b) [MB] to pay the mother a sum of $1,000 per month, alternatively, a lump sum of $100,000.

The 2006 Summons was dismissed by DJ Khoo Oon Soo on 11 November 2006. The mother’s appeal was dismissed by Tay Yong Kwang J with no order as to costs on 7 March 2007. In his ruling, Tay J cautioned the mother about future costs orders if she persisted in taking out unmeritorious applications and appeals (see MB v MC [2008] SGHC 246 at [7]).

The mother filed Summons No 650228/2008 (“the 2008 Summons”) on 24 June 2008. The 2008 Summons was heard by DJ Regina Ow. On this occasion, the mother limited her claim to lump sum maintenance of $250,000 for both her son and herself. DJ Ow dismissed the 2008 Summons. The mother’s appeal was also dismissed by Woo Bih Li J on 14 November 2008. On appeal, it was made known that the lump sum maintenance of $250,000 was for the son only. The neutral citation of Woo J’s written Grounds of Decision is MB v MC [2008] SGHC 246.

Several months before the 2008 Summons was taken out, [MB] made a new Will to replace an earlier one executed on 28 February 2001. In his Last Will and Testament dated 9 April 2008 (“the 2008 Will”), [MB] made two specific bequeaths: (a) $10,000 to the son, and (b) $5,000 to the mother. The residue of the estate, after payment of [MB]’s debts, funeral and testamentary expenses, was to be divided between [MB]’s two daughters, [AQA] and [D] in equal shares.

[MB] died on 23 January 2009. At the time of his death, [MB] and the mother were divorced. The mother believed that $10,000 was grossly insufficient for her autistic son.1MC’s Affidavit filed on 8 September 2009 at [11]; MC’s Affidavit filed on 8 January 2010 at [9] The mother applied under s 3(1)(c) of the IFPA for an order that reasonable provision for the plaintiff’s maintenance be made out of [MB]’s estate (hereafter referred to as “the Estate”). Although there were short arguments on s 3(1)(d), counsel for the plaintiff, Mr Irving Choh, later on confirmed that the application was not made under s 3(1)(d) of the IFPA.2Notes of Arguments of 16 September 2010 at [21] At the time of the application, the plaintiff was about 11 years old. In all her affidavits filed in OS 1034, the mother had insisted on a lump sum payment of $250,000 as maintenance for the plaintiff.

I dismissed the application on 19 November 2010. I made no order as to costs. The plaintiff has appealed against my decision. I now set out the reasons for dismissal.

Section 3 of the IFPA

It is worthwhile setting out the provisions of s 3 of the IFPA in full:

Power for court to order payment out of net estate of deceased for benefit of surviving spouse or child.

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

leaving —

(a) a wife or husband; (b) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself; (c) an infant son; or (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.

(2) The provision for maintenance to be made by an order shall, subject to subsection (4), be by way of periodical payments and the order shall provide for their termination not later than —

(a) in the case of a wife or husband, her or his remarriage;

(b) in the case of a daughter who has not been married, or who is under disability, her marriage or the cesser of her disability, whichever is the later;

(c) in the case of an infant son, his attaining the age of 21 years;

(d) in the case of a son under disability, the cesser of his disability, or in any case, his or her earlier death.

(3) Periodical payments made under subsection (2) to any one dependant shall not be at an annual rate which exceeds the annual income of the net estate, and, where payments are so made to more than one dependant in respect of the same period, the aggregate of the annual rates at which those payments are made shall not exceed the annual income of the net estate.

(4) Where the value of a deceased’s net estate does not exceed $50,000, the court shall have power to make an order providing for maintenance, in whole or in part, by way of a lump sum payment.

(5) In determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order, the court shall have regard to the nature of the property representing the deceased’s net estate and shall not order any such provision to be made as would necessitate a realisation that would be improvident having regard to the interests of the deceased’s dependants and of the person who, apart from the order, would be entitled to that property.

(6) The court shall, on any application made under this Act, have regard to any past, present or future capital or income from any source of the dependant of the deceased to whom the application relates, to the conduct of that dependant in relation to the deceased and otherwise, and to any other matter or thing which in the circumstances of the case the court may consider relevant or material in relation to that dependant, to persons interested in the estate of the deceased, or otherwise.

(7) The court shall also, on any such application, have regard to the deceased’s reasons, so far as ascertainable, for making the dispositions made by his will (if any), or for refraining from disposing by will of his estate or part of his estate, or for not making any provision, or any further provision, as the case may be, for a dependant, and the court may accept such evidence of those reasons as it considers sufficient including any statement in writing signed by the deceased and dated, so, however, that in estimating the weight, if any, to be attached to any such statement the court shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

(8) The court in considering for the purposes of subsection (1), whether the disposition of the deceased’s estate effected by the law relating to intestacy, or by the combination of the deceased’s will and that law, makes reasonable provision for the maintenance of a dependant shall not be bound to assume that the law relating to intestacy makes reasonable provision in all

Recently, the Court of Appeal in AAG v Estate of AAH, deceased [2010] 1 SLR 769 at [40] noted that the IFPA must be read in light of the English authorities interpreting the English Inheritance (Family Provision) Act 1938 (“the UK 1938 Act”):

We would reiterate that by the Minister stating that Singapore was adopting the IFP (UK) Act 1938 because it had worked well in England,...