BUV v BUU and another and another matter

JudgeAedit Abdullah J
Judgment Date20 June 2019
Neutral Citation[2019] SGHCF 15
Plaintiff CounselDarrell Low Kim Boon and Chua Siew Ling, Aileen (Yusarn Audrey)
Date20 June 2019
Docket NumberOriginating Summons (Family) No 1 of 2017 and Originating Summons No 1096 of 2016
Hearing Date04 September 2017,02 February 2018,30 January 2018,21 August 2017,31 January 2018,01 February 2018,01 November 2018,25 April 2018
Subject MatterMental Disorders and Treatment,Mental Capacity Act,Legal capacity
Defendant CounselKoh Mong Poo Sam (Sam Koh & Co)
CourtHigh Court (Singapore)
Citation[2019] SGHCF 15
Published date26 June 2019
Aedit Abdullah J: Introduction

The present case concerns interrelated applications, which I brought together for their more efficient determination.

First commenced was a civil suit by [UWP] in Originating Summons No 1096 of 2016 (“OS 1096/2016” or “the civil application”). [UWP] was 89 years old at the time of the application and brought the action against [BUV], her youngest son, and [BXD] Bank (“the Bank”) for orders relating to moneys held in an account at the Bank.

The second application in Originating Summons (Family) No 1 of 2017 (“OSM 1/2017” or “the MCA application”) was by [BUV] pursuant to the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”) against [UWP] and [BUU], her eldest son, for a declaration that [UWP] is unable to make decisions as to her personal welfare and her property and affairs because of an impairment of or a disturbance in the functioning of her mind or brain, and for a consequential order that deputies be appointed to make all decisions relating to her property and affairs on her behalf.

While MCA proceedings are generally heard in the first instance in the Family Justice Courts, the two matters were clearly connected. Indeed, the MCA application grew out of a failed application by the plaintiff for an order that the second defendant be found incapable of conducting the civil suit in OS 1096/2016.

I determined that [UWP] is not mentally capable within the meaning of ss 4 and 5 of the MCA. Subsequent hearings were necessary to determine the consequential appointment of the deputies. Time for appeal was extended in the meantime. [BUU] has since appealed against my decision.

Facts The parties

In the present grounds of decision, I take the MCA application as the primary application, and use the terms plaintiff and defendants accordingly.

[UWP] (“the second defendant”) is the mother of [BUU] (“the first defendant”) and [BUV] (“the plaintiff”). The first defendant and plaintiff are retirees. The second defendant did not receive a formal education and is illiterate, but is able to understand and speak in the Teochew dialect.1 She has six children in total: four sons and two daughters.

At the time of the proceedings, the second defendant’s family was split along two lines. The second defendant favoured the first defendant and her second son (“Second Son”), and expressed unhappiness with the plaintiff, her third son (“Third Son”) and her Third Son’s wife (“Daughter-in-Law”). Of her children, only her Third Son and the first defendant gave evidence.

Background facts and procedural history

The dispute between the parties arose in the middle of 2016, when a bank account (“the Bank Account”) at the Bank was jointly opened in the names of the second defendant, the first defendant and the plaintiff.2

Shortly after, the second defendant executed two wills; a declaration of intention dated 21 June 2016 (“the 2016 Declaration of Intention”);3 and a lasting power of attorney signed on 21 June 2016 and registered on 29 November 2016 (“the 2016 LPA”).4 The first of these wills, dated 25 August 2005 (“the 2005 Will”),5 was ineffective as it did not fulfil the formalities required. The second defendant’s testamentary capacity in relation to the second will, dated 20 July 2016 (“the 2016 Will”), was disputed in OSM 1/2017.6

Letters of demand were sent to the plaintiff thereafter, culminating in the commencement of the action in OS 1096/2016 against the plaintiff and the Bank. OS 1096/2016 was filed on 25 October 2016. The second defendant sought a declaration that she is the legal and beneficial owner of the moneys held in the Bank Account, and an order that the Bank Account be closed by the Bank and all moneys in the Account be returned to her. 7

On 10 November 2016, the plaintiff applied by way of Summons No 5468 of 2016 (“SUM 5468/2016”) for an order that the second defendant be medically examined as to her mental capacity to commence proceedings in OS 1096/2016. The plaintiff invoked the court’s powers under s 18 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) read with para 19 of the First Schedule of the SCJA. On 22 December 2016, I denied this application as insufficient evidence had been adduced to justify infringing upon the second defendant’s autonomy in the manner prayed for. The second defendant’s medical reports at the time indicated sufficiently that she was able to conduct and give instructions concerning the proceedings in OS 1096/2016.

The plaintiff filed the present MCA application on 19 January 2017, seeking, inter alia, a declaration of the second defendant’s mental incapacity and a consequent appointment of deputies.

In the meantime, in order to safeguard the funds in the Bank Account, I ordered on 20 April 2017 that the first defendant and the plaintiff remove their names as joint account holders for the Bank Account. The moneys in the Bank Account were not to be withdrawn or dealt with without any further order or directions made by the court, pending the disposal of the present proceedings.8

The legal documents executed in 2016

The plaintiff applied for the 2016 LPA and Will to be respectively revoked and set aside as part of the MCA application. I thus briefly set out the contents of these documents.

The 2016 LPA assigned the first defendant as the second defendant’s only donee and authorised him to make decisions about her personal welfare, property and affairs. He was also given unrestricted authority to dispose of her property by making cash gifts.

The 2016 Will disposed of the second defendant’s assets in the following proportions: the jewelleries, as marked; $20,000 to her youngest daughter (“Youngest Daughter”); $1,250 each to nine of her grandchildren; and the remaining moneys to the first defendant after all debts were paid out of her estate.

The procedure adopted and the evidence adduced

The MCA application was conducted as a judge-led process and involved the taking of evidence from the following persons: two court-appointed medical experts who gave evidence on the second defendant’s mental capacity and her ability to manage her own affairs, namely, Professor Kua Ee Heok (“Prof Kua”), a psychiatrist, and Dr Tang Kok Foo (“Dr Tang”), a neurologist; a neuropsychologist, Dr Yeo Hong Huang Donald (“Dr Yeo”), who adduced a report and gave testimony on what transpired during his psychological testing of the second defendant; and the second defendant, the first defendant, the plaintiff and a number of other family members; the evidence of the family members largely concerned their interactions with the second defendant, as well as various events relating to the second defendant’s disposal of property and assets.

The parties’ cases in OSM 1/2017 The plaintiff’s case

The plaintiff argued that the evidence of the medical experts showed that the second defendant suffered from mental impairment. This was supported by her performance on the stand, which showed that she could not retain, understand, use and weigh information or communicate decisions as to her own personal welfare and property and affairs. She also lacked the capacity to litigate. Undue influence, which is relevant to a determination of mental capacity following Re BKR [2015] 4 SLR 81 (“Re BKR”), was presumed and was not rebutted on the evidence. These factors together evidenced her lack of mental capacity.

The plaintiff also prayed for the 2016 LPA and Will to be revoked or found ineffectual, and for deputies to be appointed to act for the second defendant in respect of her property and affairs.

The defendants’ case

The defendants argued that the second defendant did not lack capacity despite her dementia, as supported by the earlier medical evidence from 2016. Even the medical experts appointed by the court concluded that she did not lack capacity. The second defendant through her own testimony showed that she was able to make decisions for herself.

The 2016 LPA and Will were properly executed by the second defendant, who was aware of her actions. This was supported by evidence from the other family witnesses and the medical evidence. The second defendant chose to have the first defendant be her caregiver. A conspiracy existed against the first defendant, involving the plaintiff, the second defendant’s Third Son and her Daughter-in-Law, in respect of the closing of bank accounts which the second defendant had prior to June 2016, and the allegations made against the first defendant.

Finally, there was no evidence of any undue influence, such allegations being only speculative. The second defendant was still able to make independent decisions despite her dementia, and she was not subject to any undue influence in the making of the 2016 Declaration of Intention, LPA and Will, which were simple documents. If anything, it was the plaintiff and the second defendant’s Third Son who had exerted undue influence on her.

My decision

Bearing in mind the evidence and submissions, I was satisfied that the second defendant lacked mental capacity in respect of decisions pertaining to her personal welfare and her property and affairs because of a disturbance in the functioning of her mind. There was sufficient medical evidence, particularly from Prof Kua, that indicated that she did not have sufficient capacity. I generally preferred Prof Kua’s evidence to Dr Tang’s. In addition, I also considered the witnesses’ testimony in court, particularly that of the second defendant herself, which caused me considerable concern as to her capacity.

To my mind, that lack of capacity affected the execution of her 2016 Will. Furthermore, despite Prof Kua’s testimony that the 2016 LPA could have been properly made by her, I found that the second defendant did not have the capacity to do so. My finding of incapacity also affected the second defendant’s ability to give instructions with regard to OS...

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1 cases
3 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2022, March 2022
    • 1 March 2022
    ...& Annabel Lee, “Testamentary Capacity” [2013] Elder Law Journal 272 at 276. 93 Gary Chan Kok Yew, “Assessing Mental Capacity: BUV v BUU [2019] SGHCF 15” (2020) 32 SAcLJ 287 at [36]–[40]. 94 See for instance ULV v ULW [2019] 3 SLR 1270 at [69]–[71]. See also John Ross Martyn et al, Theobald ......
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 December 2020
    ...BUV v BUU [2019] SGHCF 15 The assessment of the mental capacity of an elderly person (“P”) is central to the framework under the Mental Capacity Act (Cap 177A, 2010 Rev Ed). This case note discusses the clinical diagnosis and functional aspects of mental capacity and evidence needed to......
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 December 2020
    ...Medical Reports for Deputy Applications” (2017) 58(1) Singapore Med J 18. See also Gary Chan, “Assessing Mental Capacity: BUV v BUU [2019] SGHCF 15” Singapore Academy of Law Journal (published on e-First 12 February 2020). 63 Re BKR [2015] 4 SLR 81 at [134]. 64 Re BKR [2015] 4 SLR 81 at [13......

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