George Abraham Vadakathu v Jacob George

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 03 April 2009
• Neutral Citation: [2009] SGHC 79
• Docket Number: District Court Appeal No 12 of 2008
• Date: 03 April 2009
• Published date: 09 April 2009
• Year: 2009
• Plaintiff Counsel: Prabhakaran Nair (Ong Tan & Nair)
• Citation: [2009] SGHC 79
• Defendant Counsel: Eugene Thuraisingam and Muralli Rajaram (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Subject Matter: Succession and Wills,Testamentary capacity,Whether testator had testamentary capacity to execute his will,Schizophrenic executing a will,Test to determine testamentary capacity,Mental disability

3 April 2009 Judgment reserved.

Chan Sek Keong CJ:

1 This is an appeal by George Abraham Vadakathu (“the Appellant”) against the decision of the district judge below (“the DJ”) in declaring the will of George George (“GG”) dated 6 December 1998 (“the Will”) null and void on the ground that the Appellant failed to prove that GG had testamentary capacity at the time the Will was made (see George Abraham Vadakathu v Jacob George [2008] SGDC 114 (“the GD”)).

Background

2 The material facts are as follows. GG had two brothers. The elder brother is George V Abraham (“GVA”), who is the father of the Appellant. The younger brother is Jacob George, the respondent in this appeal (“the Respondent”). GG died on 8 December 2006. As both his parents had died before him, GG’s estate would have devolved equally to his two brothers under the Intestate Succession Act (Cap 146, 1985 Rev Ed) had he died intestate.

3 GG executed the Will on 6 December 1998 in the presence of a lawyer, Selvadurai Gunaseelan (“Guna”), and Guna’s wife as witnesses. The Will was executed in the house of GG’s father, Mr Vadakathu Abraham George (“VAG”). Guna had known GG and his parents for many years. The Will was prepared by Guna from a draft given to him by VAG. By the Will, GG appointed his nephew (the Appellant) the sole executor and trustee of the Will and gave his entire estate to the Appellant and his two nieces, the sisters of the Appellant.

4 The Appellant applied for a grant of probate of the Will and found that the Respondent had lodged a caveat against the grant of probate. He thereupon brought these proceedings. The Respondent challenged the validity of the Will on three grounds: (a) lack of testamentary capacity; (b) lack of knowledge of or absence of approval of the contents of the Will; and (c) undue influence in the execution of the Will. The DJ agreed to try the first issue concerning GG’s testamentary capacity as a preliminary issue, and deferred the trial of the other two issues. At the conclusion of the trial, the DJ held that the Appellant had failed to prove that GG had testamentary capacity. This appeal is concerned only with the issue of GG’s testamentary capacity.

5 GG was diagnosed with schizophrenia in 1957 when he was 18 years old. He was hospitalised in Woodbridge Hospital from August to October 1957. Subsequently, he received psychiatric treatment off and on at the Kallang Government Psychiatric Outpatient Clinic. In 1971, his medical condition became worse and he was further treated from October 1971 to August 2001 by Dr Wong Yip Chong (“Dr Wong”) at Adam Road Hospital (“AR Hospital”) where he attended regular monthly appointments and was treated with anti-psychotic medication. In July 2001, his condition deteriorated and he was reported to be aggressive, paranoid and agitated. Despite being given more anti-psychotic medication, his condition did not fully stabilise. Dr Wong reviewed GG’s condition on 13 August 2001 and recommended hospitalisation, but this was not acted upon. GG received further treatment at the Institute of Mental Health (“IMH”) from 2001 onwards until his death on 8 December 2006.

6 The medical records in AR Hospital do not provide sufficient evidence of GG’s mental condition at the time he made the Will. The case notes stopped recording any detailed clinical observations from 8 November 1994. Thereafter, and until 13 August 2001, the clinical notes were brief. The medical records in IMH from 2001 show that his medical condition got worse, but there was one short period during which it would appear that he was able to look after himself. I shall return to these medical records later in this judgment.

7 At the trial, the Appellant, GVA, Guna, a psychiatrist (Dr Francis Ngui (“Dr Ngui”), the Medical Director and Senior Consultant Psychiatrist of AR Hospital), and GG’s former colleague at work, Mohd Yusof bin Salleh (“Yusof”), gave evidence on behalf the Appellant. The Respondent did not testify. Dr R Nagulendran (“Dr N”), a consultant psychiatrist, was the Respondent’s expert witness on GG’s mental condition. At the conclusion of the trial, the DJ relied substantially on Dr N’s expert opinion to find that the Appellant had not discharged the burden of proving GG’s testamentary capacity at the time he made the Will. I will deal with the non-medical evidence first, followed by the medical evidence and then the DJ’s analysis of the evidence and her findings.

The non-medical evidence

The Appellant’s evidence

8 The Appellant testified that he had no knowledge of the Will until his father gave it to him days after GG’s death. GG was fond of him and his two sisters and used to spend much time with him before he went abroad for studies in 1992. GG had reminded him that he was the only grandson in the family and that he should study hard to make his grandparents proud of him. He had no personal knowledge of any problems which existed between GG and the Respondent.

GVA’s evidence

9 GVA testified that he was close to his parents and had lived with them after his first marriage in 1966 until 1974, after his wife died and he needed more living space for his three children. But he would visit his parents every evening. The Respondent moved out of the parents’ house after his marriage in 1979. Initially, he visited his parents regularly, until their relationship became strained due to the Respondent being rude to his father (VAG) and also due to his demands for money from his parents. After VAG’s death, GVA found a note which showed that VAG had given the Respondent and his wife a total sum of $51,435.00 in 1985 to finance the purchase of their flat at Paya Lebar. The note contained a statement signed by VAG which read, “Final payment. Please do not ask for any more money. We are broke.”

10 GG was greatly upset by the Respondent’s behaviour towards his parents. He disliked the Respondent and his wife, almost to the point of hating them. GG had told GVA that he was suspicious that they were trying to take away the family house. On a few occasions, GG had said angrily that he would “hammer” the Respondent if he ever came to the house. GVA had to assure GG about the safety of the house. After VAG had made his will on 6 December 1998, GG appeared to be satisfied that VAG had provided for him in his will.

11 GVA was aware of GG’s psychiatric condition from young and his treatment at Woodbridge Hospital and AR Hospital. GG was a slow learner and discontinued his studies after Secondary 2, but he managed to secure temporary jobs, usually on his own, until he was employed by the Tanglin Club (“the Club”). GVA’s affidavit of evidence-in-chief showed that GG was employed by the Club from 1988 until 1999 when he had to retire at the age of 60, and was then re-employed by the Club until November 2001 when he was paid $1,119.25 a month.

12 GG was very fond of GVA’s three children. He played with them when they were infants and also carried them and walked with them around the neighbourhood. He was particularly fond of the Appellant, who was his only nephew. He continued to take an interest in the children’s welfare and progress in their studies overseas and kept in touch with them. After GG withdrew part of his Central Provident Fund (“CPF”) savings in or about 1989, he gave $39,000 to GVA’s younger daughter who was then studying in Victoria, Canada when she needed some money urgently. GVA was not surprised that, in the light of these events, GG had left his entire estate to GVA’s children.

13 Under cross-examination, GVA admitted that GG had signed a contract in 2001 for a handphone for a gardener and that he (GVA) had written to IMH for a statement with a view to getting the contract voided on the ground that GG was unwell. He explained that GG had signed the contract as he was trying to help the gardener who was a foreign worker.

Yusof’s evidence

14 Yusof testified that he had joined the Club as a security officer in 1983 and had known GG since the time when GG was employed by the Club as a security guard (GG’s designation was “Watchman/Car Park Attendant”). GG worked under his supervision. No complaint had been made against GG during his employment by the Club. Yusof had no problem instructing GG on his duties and other matters which he understood and carried out satisfactorily. Under the Club’s policy, every employee had to be checked annually by the Club’s doctor. Yusof believed that the doctor was aware that GG was receiving medical treatment. As far as Yusof could see, GG was normal and none of his colleagues noticed anything abnormal about him. Yusof’s evidence was not challenged by the Respondent.

Guna’s evidence

15 Guna is an advocate and solicitor and has been a friend of the George family since 1965. He testified that, on 3 December 1998, VAG sent GG to Guna’s home to request him to see VAG. Guna went over and was told by VAG that he, his wife and GG wished to make their wills. VAG handed to him three handwritten drafts of three wills and requested him to see if they were in order and, if so, to prepare typed copies for execution. Guna read the drafts and noticed that VAG and his wife had left nothing to the Respondent in their wills, and that GVA was to be the sole executor, with GG as his alternate and the Appellant as GG’s alternate. That evening, Guna asked VAG why GG was to be appointed as alternate executor and not the Respondent, since GG was being treated for a mental illness. VAG replied that the Appellant would assist him, if necessary. Guna asked VAG to reconsider the wills, in relation to the Respondent. He did not query VAG about GG’s will as he was not surprised that GG had named his nephew and nieces as the beneficiaries of his estate since GG was fond of them. Guna was aware that GG disliked the Respondent and, on several occasions, had anxiously asked Guna whether the Respondent could take away the family house and had also said that he would “hammer” the Respondent if he...