Chee Teck An, Joshua, Peh Leng Sing and Melody Peh Ya Wen v Sharon Low Ah Hoon and Chee Weoi Seng

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 09 December 2015
• Neutral Citation: [2015] SGDC 343
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 746 of 2013, District Court Appeal No. HC/DCA 22 of 2015
• Published date: 17 December 2015
• Year: 2015
• Hearing Date: 23 September 2015,14 July 2015,09 December 2015,22 September 2015,02 October 2015,13 July 2015,15 July 2015
• Plaintiff Counsel: Mr Chia Boon Teck and Mr Ng Huan Yong (M/s Chia Wong LLP)
• Subject Matter: Will,executors and trustees,failing to account,breach of fiduciary duty,breach of duty as trustees,burden of proof on defence
• Citation: [2015] SGDC 343

District Judge Loo Ngan Chor:

INTRODUCTION:

The defendants have appealed against my decision (at [153] below), delivered orally with brief reasons, by which I allowed the plaintiffs’ claim and dismissed the second defendant’s counter-claim. I now set out the full reasons for my decision.

The dispute before me concerned the failure of the defendants to faithfully discharge their duties as executors and trustees of the will of Mdm Ching Choon Hwa (“Mdm Ching”). The consequence was that the plaintiffs, who were themselves the administrators of the estates of two children of Mdm Ching, did not receive a full and proper account of the administration of Mdm Ching’s estate or a cent from what would have been their rightful shares of Mdm Ching’s estate.

Where my narration that follows of the defence averments involves the use of quotation marks, it may be taken that the corresponding words are being quoted verbatim, including any embedded grammatical errors.

BACKGROUND FACTS:

Mdm Ching was a widow who passed away at 80 years old on 6th January 2011. Her husband, Mr Chee Siew Hong (“Mr Chee senior”) on 25th December 1999. Collectively, Mdm Ching and Mr Chee senior are referred to as “the parents”.

The parents had four children in the following order, son Chee Woei Jian (“Jian”), son Richard Chee Weoi Meng (“Richard”), daughter Chee Li Ming Jasmine (“Jasmine”) and son Chee Weoi Seng (who was also known as Jason), the second defendant.

Jasmine predeceased Mdm Ching on 17th April 2010, when she just short of 50 years. Jian predeceased Mdm Ching on 18th May 2010 at 52 years old.

The first plaintiff is Jian’s son and was granted letters of administration to Jian’s estate in DCP 1656/2011/M on 25th July 2011. The schedule of assets of Jian’s estate, dated 12th July 2011, declared a quarter share of Mdm Ching’s estate to be an asset of Jian’s estate.ⁱ

The second plaintiff was Jasmine’s husband, and the third plaintiff Jasmine’s daughter. They were granted letters of administration to Jasmine’s estate in DCP 3339/2011/K on 28th November 2011. The schedule of assets of Jasmine’s estate, dated 21st November 2011, declared a quarter share of Mdm Ching’s estate to be an asset of Jasmine’s estate.ⁱⁱ

Mdm Ching’s last will was dated 18th August 2003 (“the last will”).ⁱⁱⁱ It appointed (a) Jian, (b) Richard’s wife, Sharon Low Ah Hoon (the first defendant), (c) Jasmine and (d) the second defendant as the executors and trustees of the last will.

The second defendant’s wife is Low Seok Mui, also called Cindy, is the first defendant’s sister. Their mother, Mdm Lim Mong Chee (“Mdm Lim”), passed away on 10th December 2012, when she was 74 years old. Thus Richard and the second defendant had the same mother-in-law in Mdm Lim.

As Jian and Jasmine had died before Mdm Ching, the two defendants applied for and were granted probate of the last will on 1st April 2011 in DCP 389/2011/P^iv.

Substantively, paragraph 2 of the last will stipulated that “subject to the payment of my just debts, funeral and testamentary expenses and estate duty”, all of Mdm Ching’s property were given to Jian, the first defendant, Jasmine and the second defendant “in equal shares”.

The reason why the first defendant was named as an executrix and beneficiary of Mdm Ching’s estate was because Richard had been adjudicated a bankrupt in 2003, the same year in which the last will was made.

As Jian and Jasmine had both passed on, it was not disputed that the meaning of the last will was that Jian and Jasmine’s estates were to share Mdm Ching’s estate equally along with the two defendants.

Mdm Ching had made two earlier wills following Mr Chee senior’s death. The second will was made on 16th August 2003^v, just two days before the last will. The only difference between the last will and the second will was that Jasmine was named the only executrix and trustee of the second will. The beneficiaries were the same four as in the last will, ie, with the first defendant named to benefit instead of Richard.

Mdm Ching made her first will on 10th January 2000.^vi All four children were named as executors and trustees of the first will. In regard to beneficiaries, the difference was that, under the first will, Mdm Ching then wanted her estate to benefit “all of my surviving children in equal shares.” As Richard was not then in bankruptcy, his named stood and not the first defendant’s.

The same lawyer drafted all of Mdm Ching’s three wills. He was Mr Victor Leong Wai Meng (“Mr Leong”). He was not a witness in the trial.

Practically the only asset of Mdm Ching’s estate was a Housing and Development Board flat at Block 2 Holland Avenue #10-80 Singapore 270010 (“the flat”). The flat was expressly named in each will.

Sale of the flat:

The facts in this and the next paragraphs are based on documents in the defendants’ bundle, which were agreed as to authenticity. Following the grant of probate in favour of the defendants, they obtained transmission of the flat to their names on 27th May 2011.^vii On 23rd July 2011, the defendants applied to the HDB for permission to sell the flat.^viii Completion of the sale of the flat took place on 4th October 2011 with the nett proceeds of sale being $541,759.40.^ix

The defendants started an OCBC bank account for Mdm Ching’s estate on 16th August 2011. On 5th October 2011, HDB’s cheque for the nett proceeds of the flat sale was cleared into the estate bank account. By 13th October 2011, following several withdrawals, including several large cash cheque amounts on 6th October 2011, the estate bank account was closed.^x These cash cheque withdrawals included two amounts of $239,330.00, one for $10,000 and one for $20,000.

At a glance, the defence:

The narration below of the defence will appear laboured as it assimilated a defence which was a laboured work in progress. For this reason, I should perhaps sum up what the defendants were saying in defence to the claim.

The defendants maintained that there was an oral family agreement in 1986 that since the parents needed financial help in their twilight years, and not all Mdm Ching’s children could see to that, all financial contributions by the children would be treated as loans to the parents, particularly Mdm Ching, to be recovered from the sale of the flat. Only Richard and the second defendant gave such financial help.

Between March 2004 and February 2006, the first defendant had taken care of Mdm Ching when the latter stayed with her and Richard’s family. There was an agreement, of which there were two versions as to who were privy, that the minder would receive $5000 a month, to be paid from the sale proceeds of the flat.

Sums of money were borrowed from Mdm Lim for the funeral expenses of Mdm Ching.

When Mdm Ching made the last will, even though the defendants had themselves taken out probate of the last will, she was non compos mentis.

The Originating Summons (“OS”):

This suit had started life as OS No. 41/2012/B which the plaintiffs filed on 3rd February 2012.^xi Owing to defendants’ defences as set out in the affidavits filed in the OS^xii and “the factual disputes” arising thereunder, the OS was converted to a writ action by an order of court dated 18th February 2013^xiii. An index of the bundle of documents containing cause papers in the OS discloses that 16 affidavits were filed on both sides in the OS.

In the OS, the plaintiffs sought orders for the defendants to account for the sale proceeds of the flat, an inquiry into and payment of the shares of the sale proceeds due to Jian and Jasmine’s estates.

In his affidavit filed on 3rd February 2012 in support of the OS, the first plaintiff said that his verbal enquiries with the HDB disclosed that the sale of the flat would be completed in October 2011. When he asked the defendants for an account of the sale proceeds and payment of Jian’s share, “the 2nd defendant flatly told me that he did not intend to do so, as he needed the money for his own use.”^xiv As of the date of his affidavit, he had received no information about the sale or any account of the sale proceeds.

By a separate affidavit of the same date, the second and third plaintiffs also said that they had “not received any information from the defendants” as to the sale of the flat or an account of the sale proceeds.^xv

Mr Leong acted for the defendants in the OS.

I will outline below under this sub-heading, some of the averments made by the defendants and Richard in their OS affidavits, so far as they are pertinent as measured by the issues canvassed at the trial.

The defendants’ first reply affidavits:

The first defendant’s affidavit filed on 27th March 2012^xvi stated that she had read the affidavits of the second defendant and Richard and agreed with them. She said that “In particular, my mother-in-law had promised to pay the person who took care of her, $5000 per month plus in the event the flat rental exceeds her expenses, the excess is to be given to the care-giver… I also confirm that I had claimed a sum of $130,000 [$5000 x 26 months] that was due to me from the estate.”

The second defendant’s affidavit filed on 27th March 2012^xvii stated that he kept the plaintiffs informed at all material times of the sale of the flat and that he “had even invited them” to meet so as to explain to them that there was no money to be distributed “as there was not sufficient to pay off the debts owing to” Richard and the defendants.

He said that he would explain “how the estate of my mother owed us [referring to Richard and the defendants] so much money.” He said that (as his parents had little means), his father “requested for loan contributions from all four children and this will be reimbursed from the sale of their flat when both parents pass away.” Jian and Jasmine did not financially contribute to the support of their parents. Jasmine “manage[d] the...