Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin

• Judge: Ang Cheng Hock J
• Judgment Date: 17 September 2020
• Neutral Citation: [2020] SGHC 195
• Citation: [2020] SGHC 195
• Court: High Court (Singapore)
• Published date: 10 October 2020
• Docket Number: Suit No 45 of 2018
• Plaintiff Counsel: Kang Kim Yang, Mary Leong Sut San, and Ang Jian Xiang (Templars Law LLC)
• Defendant Counsel: Tan Teck San Kelvin and Chng Hu Ping (Drew & Napier LLC)
• Subject Matter: Mental Disorders and Treatment,Legal capacity,Agency,Construction of agent's authority,Power of attorney,Undue influence,Termination,Principal's mental incapacity
• Hearing Date: 12 February 2020,16 July 2020,07 February 2020,05 February 2020,11 February 2020,20 February 2020,19 February 2020,06 February 2020,21 February 2020,14 February 2020,13 February 2020,26 February 2020,25 February 2020,18 February 2020,24 February 2020,10 February 2020

Ang Cheng Hock J: Introduction

The central issue in this case concerns the validity of two powers of attorney that were made by an 87 year-old woman, Mdm Liew Khoon Fong @ Liew Fong (“Mdm Liew”), in favour of her son.¹ The first power of attorney authorised him to sell the house where she stayed and for the sale proceeds to be paid to one of her grandchildren, who is his oldest child. The second power of attorney authorised her son to purchase a condominium unit in the joint names of herself and the said grandchild, and included an option for her son to include himself as a joint owner. Mdm Liew’s mental capacity to execute the powers of attorney has been called into question by her daughter, who commenced this suit in her mother’s place through a lasting power of attorney which came into effect on or around 15 December 2017 because Mdm Liew developed dementia.² Further, Mdm Liew’s daughter also raised allegations of undue influence that Mdm Liew’s son had allegedly exercised over his mother to get her to execute the two powers of attorney.

Facts The parties

This suit was initially brought by Dr Goh Yng Yng Karen (“Karen”), the younger child of Mdm Liew, in Karen’s capacity as the sole donee of Mdm Liew’s Lasting Power of Attorney (“LPA”), which had been registered on 16 September 2014. The defendant, Dr Goh Yong Chiang Kelvin (“Kelvin”), is Karen’s older brother and Mdm Liew’s older child. Both Karen and Kelvin are medical doctors. Following Mdm Liew’s passing on 10 June 2020, after the trial but before judgment was released, Karen was granted leave to continue the proceedings in her capacity as the executrix of Mdm Liew’s estate (see [21] below).

When the suit was commenced, there was a second defendant, Pinnacle Development (Greenmead) Pte. Ltd. (“Pinnacle Development”), which is a private company incorporated in Singapore in the business of real estate development. Pinnacle Development was involved in the present suit as the purchaser of 107 Namly Avenue, Singapore 267676 (the “Namly property”), which Mdm Liew had previously owned.³ Karen, in her capacity as donee under the LPA, had sought an injunction preventing the sale of the Namly property. This was refused by Lee Seiu Kin J on 1 March 2018 and the sale went ahead.⁴ Subsequently, the claims against Pinnacle Development were struck out in their entirety, and it ceased to be a participant in this suit.⁵

Background to the dispute

Karen and the defendant have had a strained relationship for some time. From the evidence, this stemmed from the time of their father’s death in 1998.⁶ At the time their father (“Mr Goh”) passed away, he had two main assets to his name. One was the Namly property, and the other was a bungalow at Siglap Bank. Both properties were left to Mdm Liew, his spouse. Mr Goh’s intentions, which Mdm Liew informed her two children she intended to honour, were that after Mdm Liew passed away, the Namly property would be given to Karen and the Siglap Bank property would be given to the defendant.⁷ When informed of this, the defendant and his wife felt that this was unfair because there remained a substantial loan secured by a mortgage over the Siglap Bank property, as compared to the mortgage on the Namly property which had been paid off.⁸ Apart from the housing loans over both properties, Mr Goh had taken a loan for some investments he had made, and had secured that loan by encumbering the Siglap Bank property.⁹

The defendant’s evidence is that he had assisted Mdm Liew by agreeing to be a guarantor for the loans which remained unpaid after Mr Goh’s passing. His evidence is that, because of this help, the tenure of the loans was extended, the monthly mortgage payments were reduced, and the existing mortgage on the Namly property was discharged.¹⁰ In any event, Mdm Liew still found it difficult to meet the monthly payments for the mortgage on the Siglap Bank property. In 2006, before moving to Melbourne, Australia to stay with Karen and her family, Mdm Liew decided to sell the property.

After Mdm Liew’s husband died in 1998 but prior to her moving to Melbourne in 2006, she would alternate between staying with Karen’s family at Kellock Lodge and the defendant’s family at Seasons Park.¹¹ Mdm Liew did not want to live alone. Both the Namly and Siglap Bank properties were rented out. When the Namly property became vacant in 2003 because the tenant moved out, Karen’s family moved into the house with Mdm Liew.¹²

In 2006, Karen’s husband, Dr Peter Hwang (“Dr Hwang”), got a job at a hospital in Melbourne, Australia.¹³ Karen and her family decided to emigrate from Singapore to Australia, and she invited Mdm Liew to move there with them. Mdm Liew agreed, and sold the Siglap Bank property before she left, as described above.¹⁴

In mid-2009, Mdm Liew decided to move back to Singapore.¹⁵ This was because, among other things, she missed her friends and the food in Singapore.¹⁶ She asked the defendant and his family to move in with her at the Namly property, and they did so.¹⁷

In around March or April 2015, Dr Hwang left his position at the Melbourne hospital. In December 2015, he returned to Singapore to assume a position at the National Neuroscience Institute.¹⁸ Karen remained in Australia with their children, who were attending school there. Her evidence is that she was planning to return to Singapore once her two daughters finished their schooling in Australia.

Despite Mdm Liew having moved back to Singapore in 2009, she remained close with Karen. They spoke frequently over the phone.¹⁹ Karen would travel to Singapore several times each year to see her mother. These visits to Singapore increased in 2016 because by then, Dr Hwang was working in Singapore.²⁰ In 2014, Mdm Liew executed the LPA in favour of Karen. The LPA provided that, inter alia, Karen would “have authority to make decisions and act for [Mdm Liew] in respect of ALL matters relating to [Mdm Liew’s] personal welfare of every description as fully and effectually as [Mdm Liew] could do if [she] had the mental capacity” (emphasis original). The LPA also stipulated that:²¹

The donee(s) shall have authority to make decisions and act for me in respect of ALL matters relating to my property & affairs of every description as fully and effectually as I could do if I had the mental capacity [save that] [t]he donee shall not sell, transfer, convey, mortgage or charge my residential property at 107 Namly Avenue Singapore 267676 without the approval of the court.

[Emphasis original)

In the second half of 2017, Karen came back to Singapore on about five occasions.²² On each return, she would stay for a period ranging from a few days up to a few weeks. She would visit and see Mdm Liew regularly during the time that she was in Singapore. Karen’s visits to Mdm Liew at the Namly property would typically coincide with times when the defendant and his wife were not at home, though they were aware of such visits. Karen would also regularly take Mdm Liew out for lunch.²³

Karen’s evidence was that, from around June 2017, she started noticing that her mother was behaving more oddly. The evidence on this will be explored in more detail below, but it suffices for me to say at this juncture that Karen’s evidence is that Mdm Liew started to exhibit some signs of mental decline and confusion.

On 9 September 2017, during a visit in Singapore, Karen brought Mdm Liew to see a neurologist, Dr Ho King Hee (“Dr Ho”).²⁴ His evidence is quite critical on the issue of Mdm Liew’s mental capacity, and will be detailed in the course of this judgment. As this juncture, I need only point out that Dr Ho got Mdm Liew to take a Mini Mental State Examination (“MMSE”), which is a screening tool for dementia. Dr Ho’s evidence is that Mdm Liew scored 26/30 on the MMSE, which is a “borderline abnormal” score.²⁵

The Powers of Attorney

In mid-November 2017, the defendant’s evidence is that his mother had become less mobile because of weakness in her legs and could not get around without a wheelchair.²⁶ According to the defendant, Mdm Liew told him that she wanted to sell the Namly property and buy a condominium unit for her and his family to stay. She then instructed him to see a lawyer because she wanted to appoint him as an attorney to execute her instructions.²⁷

The defendant then approached Teo Eng Thye (“Mr Teo”), who practises under the name and style of City Law LLC, for assistance. Mr Teo prepared two irrevocable powers of attorney for Mdm Liew to execute (the “POAs”).²⁸ The first of them authorised the defendant to act on Mdm Liew’s behalf to sell the Namly property and have the sale proceeds paid to Daniel Goh Eng Sheng (“Daniel”), then 19 years’ old, who is the older of the defendant’s two sons. The second Power of Attorney authorised the defendant to purchase a condominium unit in Mdm Liew and Daniel’s names, but the defendant was given the authority to add himself as a joint owner.

Mr Teo then visited the Namly property on 20 November 2017 and met Mdm Liew for the first time.²⁹ She executed the POAs without asking Mr Teo any questions. On 22 November 2017, the defendant granted an option to “Leow Tang Lie and/or nominees” to purchase the Namly property. Leow Tang Lie was, at the material time, a director of Pinnacle Development, which had also acquired the two neighbouring houses. The option to purchase was exercised on 7 December 2017.³⁰

Karen attempted to contact Mdm Liew through Mdm Liew’s mobile phone throughout November 2017, but was largely unsuccessful.³¹ She was able to briefly speak to Mdm Liew on 20 November 2017, but was unable to reach her thereafter. Karen therefore asked Dr Hwang to visit Mdm Liew at the Namly property, which he did on 22 November 2017.³² Dr Hwang informed Karen that Mdm Liew’s condition appeared to have deteriorated significantly in that she seemed confused and disoriented. Karen continued to have difficulty contacting Mdm...