Chan Chi Cheong (trustee of the will of the testator) v Chan Yun Cheong (trustee of the will of the testator)

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 04 March 2020
• Neutral Citation: [2020] SGHC 43
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 703 of 2019
• Published date: 07 March 2020
• Year: 2020
• Hearing Date: 23 January 2020,28 November 2019
• Plaintiff Counsel: Menon T P B (Wee Swee Teow LLP)
• Defendant Counsel: Paul Wong Por Luk and Lau Wen Jin (Dentons Rodyk & Davidson LLP)
• Subject Matter: Trusts,trustees,retirement,Statutory Interpretation,definitions,Civil Procedure,judgments and orders,enforcement,inherent powers
• Citation: [2020] SGHC 43

Tan Siong Thye J: Introduction

This is a case in which two out of three trustees of a trust estate want to be discharged. The Plaintiff, Chan Chi Cheong, seeks to retire pursuant to s 40 of the Trustees Act (Cap 337, 2005 Rev Ed) (“Trustees Act”). This provision sets out several conditions to be fulfilled before a trustee who is desirous of being discharged from the trust may do so. For instance, the instrument of discharge must be by deed, and have the other trustees’ consent by deed to the discharge. The Defendant, Chan Yun Cheong, on the other hand, seeks to resign in accordance with Clause 3 of the trust instrument (“Clause 3”), which contains far less onerous requirements than s 40 of the Trustees Act. The novel and pivotal issue is whether a trustee who seeks to be discharged from a trust must comply with s 40 of the Trustees Act or the trust instrument.

Background facts

The trust instrument, under which the Plaintiff and Defendant were appointed as trustees, is a Will dated 5 February 1947 (the “Will”) belonging to Chan Wing alias Chan Min Sang alias Chan Chung Sui alias Chan Chun Wing (the “Testator”). The Testator passed away on 27 February 1947. By his Will, the Testator appointed his sons, Chan Hin Cheung, Chan Tak Cheung, Chan Kat Cheung, Chan Ting Cheung and Chan Sze Chuen, to act as executors and trustees of his estate.

The Will was attested in The Supreme Court of Kuala Lumpur, Federation of Malaya in Petition No. 628 of 1947. Probate of the Will was granted on 1 December 1947 to all of the Testator’s sons, save for Chan Sze Chuen (collectively, the “Original Trustees”). Thereafter, the Grant of Probate of the Will was resealed in The Colony of Singapore in Probate No. 374 of 1949 on 18 August 1949. This was done on the petition of Chan Hin Cheung and Chan Tak Cheung.

Since the grant of probate, a series of Deeds of Appointments and Retirements of trustees have been executed. By way of background, the particulars of the appointments and the events giving rise to them are as follows:¹ Sometime in 1972 to 1973, Chan Kat Cheung retired as a trustee. The remaining three out of the Original Trustees then appointed Chan Sze Chuen as an additional trustee with effect from 1 January 1973. Sometime in December 1988 or 1989, Chan Ting Cheung passed away. Chan Hin Cheung, Chan Tak Cheung and Chan Sze Chuen then declared themselves as the trustees for the estate. Sometime in 1993, Chan Hin Cheung passed away. Chan Tak Cheung and Chan Sze Chuen then appointed Chan Chak Cheong as an additional trustee with effect from 1 June 1997. On 7 January 2002, Chan Tak Cheung passed away. Chan Fatt Cheung and Chan Chee Chiu were appointed as additional trustees with effect from 5 January 2003. On 7 May 2003, Chan Chak Cheong passed away. On 9 March 2009, Chan Fatt Cheung resigned as trustee of the estate, without a Deed of Retirement being executed. This left only Chan Sze Chuen and Chan Chee Chiu as trustees. On 28 April 2017, Chan Sze Chuen passed away, leaving Chan Chee Chiu as the only trustee.

As the sole remaining trustee of the estate, Chan Chee Chiu approached the Plaintiff and the Defendant to act as co-trustees along with him. The Deed of Appointment giving effect to this arrangement was executed on 27 June 2017,² bringing the number of existing trustees to three.

On 10 January 2019, the Plaintiff, through his lawyers, Wee Swee Teow LLP, wrote to CTLC Law Corporation informing them of his intention to be discharged as trustee of the Will of the Testator and attaching a draft Deed of Retirement (the “10 January 2019 letter”).³ He had done so as he was under the impression that CTLC Law Corporation acted for both the Defendant and Chan Chee Chiu.

On 15 January 2019, CTLC Law Corporation replied to state that they acted only for Chan Chee Chiu and not the Defendant. However, Chan Chee Chiu had no objections to the Plaintiff’s retirement and the draft Deed of Retirement was returned with Chan Chee Chiu’s signature appended therein.⁴

Thereafter, on 16 January 2019, Wee Swee Teow LLP wrote to the Defendant informing him of the Plaintiff’s intention to retire as trustee (the “16 January 2019 letter”). Attached to the letter were CTLC Law Corporation’s reply of 15 January 2019 indicating Chan Chee Chiu’s agreement to the Plaintiff’s retirement and a draft Deed of Retirement (with no signatures therein).⁵

On 1 February 2019, the Defendant responded via a series of letters: In his first letter addressed to Wee Swee Teow LLP,⁶ the Defendant explained that he had not responded earlier as he had been in correspondence with the lawyers of the Testator’s estate regarding the legality of a transfer authorised by the Plaintiff. Specifically, the transfer referred to was one made by the Plaintiff on 17 January 2019, of a sum of SGD 10,721,745.18 from the estate’s UOB account to the estate’s Citi Private Bank account (the “Disputed Transaction”). In the Defendant’s second letter titled “RESIGNATION AS TRUSTEE OF THE ESTATE OF CHAN WING, DECEASED”,⁷ addressed to the Plaintiff and Chan Chee Chiu, the Defendant purported to resign “as Trustee with immediate effect as I am of the view that I am unable to effectively discharge my duties as a Trustee”.⁸ In this second letter (the “Letter of Resignation”), the Defendant also explained that in his view, the inability to discharge his duties was due to his disagreement with the Disputed Transaction.

On 19 February 2019, Wee Swee Teow LLP wrote to the Defendant stating: “You are still a trustee until a proper Deed of Retirement is executed. Your letter of resignation does not prevent you from executing the Deed of Retirement sent to you.”⁹

In a response letter, dated 22 February 2019, the Defendant again reiterated his position as follows:¹⁰

…

I thoroughly disagree with your assertion that I am still a trustee of the Estate of Chan Wing, Deceased until a proper Deed of Retirement is executed.

It should be noted that I have resigned with immediate effect as of 1 February 2019 as per my letter of resignation dated 1 February 2019.

I am sure that you know this already but the Trustees Act does not say that the Deed of Retirement is the only way in which a trustee can resign.

If you have read the Will of Chan Wing dated 5 February 1947 upon which the Estate of Chan Wing is based upon, I refer here specifically to the first page of the Will, the Will specifically states that “If any of my Trustees disagree with the others or have to attend to other business, he is at liberty to resign and the vacancy thereby created shall be filled accordingly”.

It should also be noted that prior trustees have resigned through the use of a simple resignation letter. Taking your line of reasoning that a Deed of Retirement is necessary for a resignation to a logical conclusion, this might also mean that Mr Chan Fatt Cheung of 58 Binjai Park, might still be a trustee of the Estate of Chan Wing. If Mr Chan Fatt Cheung of 58 Binjai Park is still a trustee, that would invalidate the Deed of Appointment dated 27 June 2017. As far as I am aware, I do remember that Mr Chan Fatt Cheung being alive and in good health.

On 7 May 2019, Wee Swee Teow LLP wrote to the Defendant. In addition to addressing the previous points raised by the Defendant, this letter stated as follows:

…

We are pleased to inform you that Mr Chan Fatt Cheung executed a Deed of Retirement and Confirmation on the 25thApril 2019 confirming that he retired as a trustee with effect from 9th March 2009. This Deed had been executed by Chan Chee Chiu.

Attached to this latest letter from Wee Swee Teow LLP to the Defendant was a Deed of Retirement and Confirmation that sought to regularise Chan Fatt Cheung’s retirement. This Deed of Retirement and Confirmation was signed by Chan Fatt Cheung, Chan Chee Chiu and the Plaintiff, with a final section left blank for the Defendant’s signature. Attached to the letter was also the Deed of Retirement relating to the Plaintiff’s retirement (the “Plaintiff’s Retirement Deed”), signed by the Plaintiff, Chan Fatt Cheung and Chan Chee Chiu, and again with a section left blank for the Defendant’s signature.

On 14 May 2019, a final letter of reminder was sent from Wee Swee Teow LLP to the Defendant. When the Defendant still refused to sign the Deed of Retirement and Confirmation and the Plaintiff’s Retirement Deed, the Plaintiff commenced this Originating Summons No. 703 of 2019 (“OS 703/2019”).

The parties’ arguments The Plaintiff’s arguments

The Plaintiff argues that the only way a trustee can resign is in accordance with s 40 of the Trustees Act, ie, through a duly signed Deed of Retirement. The Plaintiff posits that the Defendant’s attempt to resign by way of letter was not valid, for several reasons:¹¹ Firstly, the Plaintiff had given his notice of his intention to resign by way of a letter dated 10 January 2019, leaving only Chan Chee Chiu and the Defendant as trustees. The Defendant cannot resign by letter of resignation as that is contrary to s 40(1) of the Trustees Act. Secondly, the Defendant can only resign if a new trustee is appointed to take his place. Thirdly, any resignation has to be accompanied by a transfer of property held by the retiring trustee to the new trustee. Such a transfer cannot be effected by way of a letter of resignation and no other method has been relied upon by the Defendant. Fourthly, the provisions of the Will only make sense when read with s 40 of the Trustees Act, particularly when the Will is silent as to matters such as the mode of resignation, whether the consent of the other trustees should be obtained, whether the trust assets should be transferred to the continuing trustees and whether there should be at least two remaining trustees. The Defendant can only be discharged or resign in accordance with s 40 of the Trustees Act.¹² Fifthly, the Defendant’s contention that he was no...