BOK v BOL and another

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 11 December 2017
• Neutral Citation: [2017] SGHC 316
• Court: High Court (Singapore)
• Docket Number: Suit No 1217 of 2015
• Published date: 11 December 2018
• Year: 2017
• Hearing Date: 18 September 2017,18 July 2017,25 July 2017,20 July 2017,17 July 2017,29 September 2017,21 July 2017,19 July 2017
• Plaintiff Counsel: Dr Michael Hwang SC and Derric Yeoh (Michael Hwang Chambers LLC) (instructed) and Anthony Lee, Loh Wai Mooi and Wang Liansheng (Bih Li & Lee LLP)
• Defendant Counsel: Kenneth Tan SC (Kenneth Tan Partnership),Suresh s/o Damodara and Clement Ong (Damodara Hazra LLP)
• Subject Matter: Deeds and other instruments,Deeds,Misrepresentation,Equity,Mistake,Mistake of law,Unconscionable transactions,Undue influence,Actual,Presumed,Trusts,Express trusts,Certainties,Constitution,Future property
• Citation: [2017] SGHC 316

Valerie Thean J:

Three days after his mother’s funeral, a 29-year-old signed a declaration of trust (“DOT”) which purported to constitute him and his wife, the second defendant, as joint trustees of all his assets for the sole benefit of their infant son, the first defendant. He now brings this action to set aside that DOT. For the reasons that I shall explain, I set it aside.

Background

Prior to the commencement of trial, I granted under s 8(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) the first defendant’s application for these proceedings to be heard in camera.¹ This was expedient in the interests of justice because this suit is intertwined with an ongoing divorce suit between the plaintiff and the second defendant, which is being heard in camera under s 10(1) of the Family Justice Act 2014 (No 27 of 2014) as a matter of course. That suit commenced on 25 November 2015, before this action began, and involves their two minor children. Interim judgment was granted on 26 September 2016 and ancillary matters are to be dealt with after the completion of this suit. Exercising my discretion under O 42 r 2 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), I have therefore also published this judgment on the terms that the parties’ names and details are to be redacted.

The parties’ background

The plaintiff is now 33 years old. He is an oil and gas trader and holds the office of managing director in an energy company.² His parents were divorced and his father passed away early in his life. Through his father’s inheritance, he was already a man of substantial means with two apartments in the Marina Bay Sands area before he started working. He shared a close relationship with his late mother. The second defendant is his wife. She is 37 years old and has been unemployed since 2012.³ She was a practising lawyer for four years before spending two years in the banking industry.⁴

The plaintiff and the second defendant were childhood friends through the acquaintance of his mother and her parents. Their romantic relationship began in November 2011.⁵ In April 2012, the second defendant became pregnant with his child.⁶ His mother became aware of their relationship in the middle of 2012 and she strongly disapproved of it.⁷ As a result, she and the second defendants’ family became estranged.

Despite opposition from the plaintiff’s mother, the plaintiff and the second defendant married in August 2012.⁸ After they married, the plaintiff continued living with his mother at one of her properties, which I shall call the Holland Road property. This was with the exception of a short period between October and November 2012, during which the plaintiff stayed with the second defendant and her parents at their family home,⁹ which I shall call the Stevens Road property.

In December 2012, the first defendant was born to the couple. The relationship between the plaintiff’s mother and the second defendant continued to be strained and the plaintiff’s mother did not acknowledge the first defendant as the plaintiff’s son. She continued to maintain in public that the plaintiff was not married.¹⁰

In the following months, the plaintiff became occupied with his work, for which he travelled overseas frequently. While he remained in telephone contact with the second defendant twice a week, he would see the defendants only two or three times a month.¹¹ This was a difficult period for the couple. They each have differing accounts of an incident in the middle of 2013 in which the second defendant allegedly created a scene at the plaintiff’s office with their son and a friend.¹² By January 2014, however, they had begun to discuss setting up a home of their own.¹³ They had found an apartment which they planned to make their family home. I shall it call the Scotts Road apartment.

The plaintiff’s mother is killed

Tragedy struck on 19 March 2014. The plaintiff’s mother was killed at her home.¹⁴ At that time, she and the plaintiff were living at the Holland Road property because her usual residence, which I shall call the Bukit Timah property, was under renovation.¹⁵ The plaintiff was on a business trip the day he received news of her death, and he flew back to Singapore that very day.¹⁶ When he arrived at the Holland Road property, he saw that the police had cordoned it off. He accepted the second defendant’s invitation to stay with her family at the Stevens Road property.¹⁷

The plaintiff’s mother’s funeral was held on 23 March 2014.¹⁸ On the morning of 26 March 2014, the plaintiff and his sister went to see their late mother’s lawyers to read their mother’s will.¹⁹ It turned out that their mother had created a testamentary trust over her assets, which were valued at about $54m.²⁰ Two landed properties contributed to the bulk of that value, namely, the Holland Road property and the Bukit Timah property. She had appointed the plaintiff and his sister as the executors and trustees of her will, and they were to sell the properties only after the twenty-fifth anniversary of her death. Until that date, they were each permitted to withdraw a sum not exceeding $10,000 per month from the estate.²¹

After they had read the will, they went to the Stevens Road property for lunch with the second defendant and her mother. The plaintiff and his sister agreed not to reveal the contents of the will to the second defendant.²² At lunch, therefore, the plaintiff tried not to mention the will. The second defendant knew that they had gone to see their mother’s lawyers, however, and she asked them about the will. The plaintiff lied to her that his mother had left all her property to charity.²³ Also discussed at the table was the idea of converting the Bukit Timah property into an art gallery in remembrance of the plaintiff’s mother, who had lived there for many years. The extent and role of this idea in the lunch conversation is disputed.

The plaintiff signs the DOT of 26 March 2014

After lunch, the plaintiff and his sister left the Stevens Road property.²⁴ While they were out of the house, the second defendant began drawing up a DOT by hand. When the plaintiff returned in the evening, the second defendant asked him into her bedroom to sign the handwritten DOT, which reads:²⁵

TRUST DEED

DATE: 26 MARCH 2014

By this Trust Deed, I, [the plaintiff], NRIC No. [xxx] of [xxx], hereby unconditionally and irrevocably declare that all assets, both personal and immoveable, owned by me, whether legally or beneficially, shall be held in trust by me and [the second defendant], NRIC No. [xxx] of [xxx], as joint trustees for the sole benefit of our son [the first defendant], Birth Certificate number [xxx].

It is also hereby declared that either I or [the second defendant] shall be authorised to take any and all steps to protect and safeguard the beneficial interest of the Beneficiary [the first defendant], Birth Certificate number [xxx].

Below the text, there was space for the signatures of the plaintiff and second defendant with the description that the DOT was “Signed, Sealed and Delivered” by each of them “on the date abovementioned”.

The plaintiff refused to sign the document initially.²⁶ This led to an argument between the plaintiff and the second defendant.²⁷ The subject of the argument is, again, a matter of dispute. So too is the role of the second defendant’s father, a senior lawyer, in the couple’s argument. Eventually, however, the plaintiff signed the DOT. The second defendant did so too, and she then placed it in her safe.²⁸

Events after the DOT is signed

Shortly after the DOT was signed, the plaintiff in early April 2014 told the second defendant that he and his sister had inherited their mother’s assets. This was the effect, he told the second defendant, of a new will belonging to his mother which had just been found.²⁹ In fact, the plaintiff’s story about finding a new will was another lie.

In the event, Mr David Mitchell of Hin Tat Augustine & Partners was appointed as the solicitor for the administration of the plaintiff’s mother’s estate. The plaintiff and his sister decided to exercise their right under Saunders v Vautier (1841) 49 ER 282, as beneficiaries under their mother’s will who were of age and of sound mind, to call in the assets under the will and to apportion them between themselves. They initially disagreed over how the estate should be divided between them.³⁰ The plaintiff sought the second defendant’s advice on resolving that disagreement and more generally on the drafting of the necessary papers for calling in the assets.³¹

Mr Mitchell was also engaged to assist the plaintiff in the purchase of the Scotts Road apartment,³² which the couple intended to use as their family home.³³ On 9 May 2014, the plaintiff signed a DOT by which he declared that the Scotts Road apartment was to be held by him on trust for the first defendant.³⁴ The reason he did this is disputed: the plaintiff says that he signed it to avoid Additional Buyer’s Stamp Duty as he already owned two apartments, whereas the defendants say that he signed it out of love and affection for the first defendant.

Towards the end of that month, the couple went on a holiday in France which the plaintiff had planned:³⁵ they had decided to start their relationship afresh. In the plaintiff’s words, he and the second defendant agreed to “try and reset the relationship after the death of [his] mother”.³⁶ They also started to plan for a second child.

In June 2014, the second defendant enclosed a copy of the DOT in two e-mails to Mr Mitchell.³⁷ She told Mr Mitchell in those e-mails to take note of the DOT in relation to any property under the plaintiff’s mother’s will that would vest in the plaintiff’s name. The plaintiff was not copied in those e-mails. The second defendant’s e-mail to him dated 14 June 2014 reads:

Before the property from the will vests in [the plaintiff] and his sister in name I thought you...