GDL and others v GDR and another

• Jurisdiction: Singapore
• Judge: Lim Wee Ming
• Judgment Date: 28 June 2021
• Neutral Citation: [2021] SGDC 118
• Court: District Court (Singapore)
• Hearing Date: 12 March 2021,08 April 2021,10 February 2021
• Docket Number: District Court Suit No 2500 of 2019, District Court Appeal No 11 of 2021
• Plaintiff Counsel: Mr Melvyn Foo (M/s Lee & Lee)
• Defendant Counsel: Ms Vicki Loh (M/s Legal Solutions LLC)
• Subject Matter: Succession and Wills,Construction,Probate and Administration,Distribution of assets,Legacies
• Published date: 07 July 2021

District Judge Lim Wee Ming: Introduction

The plaintiffs’ claim against the defendants is for the sum of $115,000, being annual maintenance payments provided for under the will of the plaintiffs’ father. The defendants have a counterclaim seeking three declarations. Two declarations relate to the annual maintenance payments, while the third declaration relate to payments for the plaintiffs’ education, medical expenses or benefit under the will.

I allowed the plaintiffs’ claim. The defendants’ counterclaims were dismissed, except for the third declaration which I allowed. The defendants have appealed against my decision. There is no appeal by the plaintiffs.

Facts

The plaintiffs are the daughters of GDV (“the deceased”) and his former wife, GDQ (“the plaintiffs’ mother”).¹ The deceased and the plaintiffs’ mother divorced in January 2015. The plaintiffs are all minors and are represented in this action by their mother.

The first defendant is the sister of the deceased. The second defendant married the deceased, after his divorce.²

In 2016, the deceased was very ill with leukaemia.³ He instructed Legal Solutions LLC to draft his will. In November 2016, the deceased executed his will (“the Will”), which provides that the defendants are the executrixes and trustees of the Will.⁴ Less than a year thereafter, the deceased passed away.⁵

Clause 4 of the Will provides for maintenance payments of $15,000 per year to be made to each of the four plaintiffs.⁶ The total amount to be paid to the four plaintiffs under clause 4 of the Will is $60,000 per year.

The provision for maintenance made by the deceased in clause 4 of the Will, follows an order of court dated 30 January 2015 in the divorce proceedings. This order of court provides that “The [deceased] shall pay [the plaintiffs’ mother] a sum of $5,000 as monthly maintenance for the [plaintiffs]” (“the Maintenance Order”).⁷ The annual maintenance to be paid for the four plaintiffs under the Maintenance Order amounts to $60,000 per year. The annual maintenance to be paid to the plaintiffs under clause 4 of the Will, ties in with the annual maintenance to be paid for the plaintiffs under the Maintenance Order.

The plaintiffs’ claim against the defendants is for the sum of $115,000, from the estate of the deceased, being maintenance payments to the plaintiffs under clause 4 of the Will, for 2017 and 2018, less the sum of $5,000 that was paid to the plaintiffs in September 2017.⁸

The defendants’ position is that the maintenance payments under clause 4 of the Will are residuary legacies subject to clause 3 of the Will, and cannot be distributed until the debts of the estate have been paid.⁹ Clause 3 of the Will provides for the distribution of two properties, and for the balance of the estate to be distributed as follows: 41% of the balance of the estate to be distributed to the second defendant, and 59% of the balance of the estate to be distributed to the plaintiffs.¹⁰

The relevant extracts of clauses 3 and 4 of the Will are as follows: 3. Subject to the payment of my debts, loans, funeral and testamentary expenses, I GIVE all my real and personal property to my executrixes and Trustees upon trust to distribute the whole of my Estate … to the beneficiaries of my Estate in the following manner: (i) to give my 80% share of the property at [Property 1] to my spouse, [the second defendant] … (ii) to let my father, … reside at my property at [Property 2] for as long as he desires or deems fit, and thereafter should my father … no longer reside in the said property, the property shall be sold and the proceeds are to be divided into three (3) equal shares in the following manner: a) One third (1/3) share to my sister, [the first defendant], … b) One third (1/3) share to my spouse, [the second defendant] … and c) The last one third (1/3) share to be divided equally between my daughters, [the four plaintiffs] (iii) to distribute the balance of my Estate in the following manner: a) 41% of the balance of my Estate to my spouse, [the second defendant]; b) 10.5% of the balance of my Estate to my daughter [the first plaintiff]; c) 13.5% of the balance of my Estate to my daughter [the second plaintiff]; d) 16.5% of the balance of my Estate to my daughter [the third plaintiff]; and e) 18.5% of the balance of my Estate, to my daughter [the fourth plaintiff]. 4. In the event that any of my daughters, [the four plaintiffs] are at the date of my demise under the age of 24, my Trustees shall distribute S$15,000 per year to such daughter(s) for their maintenance until they attain the age of 24, and hold the said share(s) of my Estate on TRUST for my daughter or daughters (as the case may be) until such time that she attains the age of 24 whereupon it shall then be distributed to my daughter(s) in accordance with my Will provided always that my Trustees may use any such amounts or portion of the said share(s) for my daughter(s)' education, medical expenses or benefit, and the residue of my Estate shall accrue for the benefit of my daughter or daughters (as the case may be) when she turns 24 years of age in the share(s) stipulated at Clause 3 above.

The plaintiffs’ position is that the annual maintenance payments under clause 4 of the Will are pecuniary legacies which are not subject to clause 3 of the Will.¹¹

Essentially, the key difference between the parties’ respective positions is as follows: The plaintiffs’ position would mean that the annual maintenance payments would be paid to the plaintiffs under clause 4, in priority to the distribution of the estate under clause 3. In contrast, the defendants’ position would mean that the annual maintenance payments would be carved out from the plaintiffs’ share of the estate under clause 3.

The plaintiffs further take the position that the defendants have assented to the distribution of the annual maintenance for the period of two years for 2017 and 2018. This arises from correspondence between the defendants’ solicitors and the plaintiffs’ solicitors relating to an application to empower the plaintiffs’ mother to give good discharge for all payments to the plaintiffs under the Will.¹² In particular, in a letter dated 15 February 2019 from the defendants’ solicitors to the plaintiffs’ solicitors, the defendants’ position was that “the [defendants] intend to pay the sum of S$115,000 for all 4 children for [that two year period].”¹³

The defendants now take the position that the debts of the deceased have to be paid before any distribution. They claim that there are mortgages on the two properties¹⁴ and tax to be paid on the shares of an American company sold by the estate.¹⁵ They also claim that there are sums to be paid to the plaintiffs’ mother following the divorce proceedings.¹⁶ However, the defendants have not adduced evidence to show that the assets of the estate less the liabilities of the estate, is less than $115,000.

In addition to resisting the plaintiffs’ claim for the sum of $115,000, the defendants seek three declarations in their counterclaim. Two of these declarations relate to the annual maintenance payments as follows: (1) A declaration that the payment of any and all of the Annual Maintenance shall be subject to the Estate’s payment of the Deceased’s debts and loans, as well as costs and expenses associated with the administration of the Estate as may be entitled to be deducted under law, from the estate fund; (2) A declaration that the Annual Maintenance is to be drawn from each of the Plaintiffs’ respective legacies as set out in Clause 3 of the Will; … ¹⁷

The third declaration that the defendants seek, is that “the Plaintiffs’ educational and medical expenses are to be drawn from each of the Plaintiffs’ respective legacies as set out in Clause 3 of the Will.”¹⁸

The parties agreed that the matter be heard as a documents only trial and that the parties would rely on the affidavits of evidence-chief filed, without the need for the deponents of the affidavits of evidence-in-chief to give oral evidence in court.

Issues

The key issues arising from this case are: Whether the annual maintenance payments are pecuniary legacies or residuary legacies. Whether the defendants assented to the payment of the sum of $115,000 to the plaintiffs.

Whether the maintenance payments are pecuniary or residuary legacies

In Halsbury’s Laws of Singapore: Probate, Administration and Succession (Lexis Nexis 2013) (“Halsbury”) at [190.106], legacies are divided into the following five categories: specific legacies, general legacies, demonstrative legacies, pecuniary legacies, and residuary legacies.

The last two of the aforesaid five categories are pertinent in this case. Halsbury describes pecuniary legacies as “legacies of sums of money” and residuary legacies as “what remain after the above [first four categories of] legacies have been disposed of.”

In construing a will, it is necessary to first look at the wording of the will itself. In Foo Jee Seng v Foo Jhee Tuang [2012] 4 SLR 339 at [17], the Court of Appeal held: It is clear that the overriding aim of the court in construing a will is to seek and give effect to the testamentary intention as expressed by the testator. This intention must predominantly be derived from the wording of the will itself, although the circumstances prevailing at the time the will was executed may be taken into account. …

The wording of the Will

Clause 4 of the Will provides for the annual maintenance payments to the plaintiffs.¹⁹ The clause provides as follows: In the event that any of my daughters, [the four plaintiffs] are at the date of my demise under the age of 24, my Trustees shall distribute S$15,000 per year to such daughter(s) for their maintenance until they attain the age of 24, and hold the said share(s) of my Estate on TRUST for my daughter or daughters...