Kamla Lal Hiranand v Harilela Padma Hari and Others

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 08 August 2000
• Neutral Citation: [2000] SGCA 40
• Docket Number: Civil Appeal No 4 of 2000
• Date: 08 August 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: SH Almenoar and Elaine Seow (Tan Rajah & Cheah)
• Citation: [2000] SGCA 40
• Defendant Counsel: Davinder Singh SC and Cavinder Bull (Drew & Napier),Jeffrey Beh (Lee Bon Leong & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether petitioner required to prove will,Fraud or collusion alleged,Whether foreign grant of probate unimpeachable,Document testamentary in nature,Creation of trust,Whether such affidavits must be served on any party,Whether document wholly inoperative,Whether trust expressly or tacitly accepted by beneficiary or trustees,Half-secret,Trusts,Whether question suitable for determination under O 14 r 12(1),Creation of trusts,ss 43 & 46 Evidence Act (Cap 97, 1997 Rev Ed),Whether foreign grant of probate conclusive proof of due execution and validity of will,O 14 r 12 Rules of Court,Summary judgment,Whether intention of testator relevant,Affidavits,Secret trusts,Affidavits of testamentary script,O 72 r 9 Rules of Court,Foreign domicile grants,Whether knowledge of executors or trustees or beneficiaries of the testator's intention relevant,but invalidly as will,Whether document regarded as declaration of trust over assets of estate of testator,Petition for grant of probate in Singapore,Civil Procedure,Probate and Administration,Determination of question of law

(delivering the judgment of the court): This appeal concerns the validity of a certain document (referred to in the court below as the `1988 Will`) which the appellant claims is valid for the purpose of creating and/or evidencing a trust in the estate of the late Manghanmal Hiranand Ramchandani [commat] Manghanmal Hiranand. Both the assistant registrar and judicial commissioner Tay Yong Kwang held that the document is not valid for such purpose. Against the decision of the learned judicial commissioner this appeal has now been brought.

The parties

The late Manghanmal Hiranand Ramchandani [commat] Manghanmal Hiranand (`the deceased`) at all material times was a resident of Hong Kong. He passed away at the Mount Elizabeth Hospital in Singapore on 30 August 1994, and at the time of his death, he was domiciled in Hong Kong. The appellant is his daughter-in-law; the first respondent his daughter; the second respondent his son and the husband of the appellant; and the third respondent is the husband of the first respondent. All the three respondents were defendants in the proceedings below. Before the learned assistant registrar all three of them were represented by the same counsel. Thereafter, prior to the hearing of the appeal before the learned judicial commissioner, the appellant and the second respondent reached a settlement and thenceforth the second respondent has been separately advised and represented by counsel.

Relevant facts

Prior to his death, the deceased, on 24 April 1986, made a will appointing the first and third respondents the executors and trustees of the will, and on 16 October 1987 he made a codicil. Under the will and codicil (collectively referred to as `the 1986 Will`) the second respondent is the sole beneficiary. On 6 May 1998 the High Court in Hong Kong granted probate of the 1986 Will to the first respondent with liberty to the third respondent to apply for a like grant. Later, the first respondent petitioned to the District Court in Singapore in Probate 1641/98 for a grant of probate of the 1986 Will, but in the meanwhile the appellant had filed a caveat against any grant of probate in the estate of the deceased. Accordingly, an order was made on 27 October 1998 for the appellant to take out a writ joining all the three respondents as the defendants. Pursuant to the order, proceedings were then commenced by the appellant in the District Court in DC Suit 51362/98 against the respondents.

In her statement of claim, the appellant claimed that the 1986 Will was not executed by the deceased and was a forgery. She relied on a competing document, said to be executed by the deceased on 22 November 1988 (the `1988 document`) in Los Angeles in the State of California, which was declared to be his last will and testament. The document was not witnessed, and it bore the stamps of `Law Offices Berris, Seton & Bishton` and `Berris, Seton & Bishton, Notary Public`. The appellant did not produce the original of this document in evidence but attested that she had seen the original of this document among the deceased`s belongings. The 1988 document named the first respondent and one Ram G Hiranand as the executors and trustees of the will. Under the terms of this document, upon the second respondent attaining the age of 45, the principal and undistributed income of the trust were to be distributed as follows: 25% to the second respondent, 25% to the appellant, 15% to each of their three children and 5% to all the managers of the deceased`s business worldwide who had served him for ten years or more. The appellant claimed that the respondents were aware, prior to the deceased`s death, of his intention to distribute his properties in the manner stated in the 1988 document. Further or in the alternative, it was claimed that the respondents were aware of the declared intention and wishes of the deceased, which amounted to the creation of a trust, to have the estate distributed among the appellant and the second respondent and their three children.

The appellant sought the dismissal of the first respondent`s petition for the probate of the 1986 document. She also sought a declaration that the estate of the deceased be subject to a trust in accordance with the 1988 document, or in the alternative, `in accordance with such terms of the trusts created by the deceased to be determined` by the court. In addition, the appellant sought an inquiry as to intermeddling of the estate of the deceased by the respondents and for an order that the respondents provide an account of all such intermeddling.

In defence, the respondents averred that the 1986 Will was duly executed by the deceased. They relied on the grant of probate by the Hong Kong High Court and claimed that the 1986 Will had been duly proved. The respondents denied any knowledge of the 1988 document and averred that no trust existed in the estate of the deceased. The respondents counterclaimed for a pronouncement against the 1988 document and a dismissal of the appellant`s claim. The respondents also sought a pronouncement in favour of the 1986 Will and a declaration that the probate of the 1986 Will be granted to the first respondent (with leave to the third respondent to come in and prove the same) and a declaration that the second respondent was the sole beneficiary under the 1986 Will. At or about the time of the filing of the defence and counterclaim, an affidavit of testamentary script pursuant to O 72 r 9 of the Rules of Court was filed by each of the three respondents affirming, among other things, that no testamentary script of the deceased had come into his or her possession other than the 1986 Will, and that the 1986 Will was prepared on the instruction of the deceased by a firm of solicitors in Hong Kong, whose solicitor and employee also witnessed the execution of the will and codicil by the deceased. Under O 72 r 9(5) a testamentary script means:

a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.

After the close of the pleadings, the proceedings were transferred by consent to the High Court. Thereafter, the respondents applied for a determination of questions of law and for a dismissal of the appellant`s claim under O 14 r 12 and/or O 18 r 19 of the Rules of Court. In support of their application, the respondents adduced affidavits of various expert witnesses, attesting that the 1988 document was invalid as a will under the laws of the relevant jurisdictions of California, Hong Kong and India. The respondent also adduced affidavits, showing that the deceased was in Hong Kong on 22 November 1988 (and as such, could not have signed the 1988 document as alleged) as well as affidavits by former partners of the firm of Berris, Seton & Bishton, supporting the respondents` position that the 1988 document was a forgery. According to these witnesses, the firm was not in existence in 1988 and did not use any of the two stamps which appeared on the 1988 document. They further affirmed that no lawyer from the firm had prepared or witnessed the execution of the 1988 document.

The proceedings below

At the hearing of the application before the learned assistant registrar and the subsequent appeal before the learned judicial commissioner, the appellant conceded that the 1988 document did not satisfy the formal requirements of a will and was not valid as a will in Singapore or in any other relevant jurisdictions. At the conclusion of the hearing on 27 April 1999, the learned assistant registrar held that the 1988 document is not valid for the purposes of creating and/or evidencing a trust in the estate of the deceased, and that the defendants do not have to prove the 1986 Will, as it has been filed, proved and registered in the High Court of Hong Kong, and the Grant of Probate No HCAG010147/97 has been obtained thereof. The learned assistant registrar therefore dismissed the appellant`s claim and allowed the respondents` counterclaim.

Against the decision of the learned assistant registrar, the appellant appealed to a judge in chambers. A week before the hearing of the appeal, the appellant`s solicitor filed an affidavit producing a statutory declaration made by the second respondent on 18 August 1999, in which the second respondent took a position which differed from that taken by the other two respondents and contrary to his previous stand. He now supported the appellant`s claim that the 1986 Will was a forgery and was not signed or executed by the deceased. He also stated that he did not wish to continue with the legal proceedings. In addition, he exhibited, among other things, a deed executed on 28 May 1999 made between the appellant and himself, in which, among other things, the parties declared that the terms of the deed `shall constitute the full and final settlement of all matters arising out of the said action as between them and all their present differences`. The deed by cl 2 provided that the second respondent would undertake to settle all matters in dispute with the appellant and in particular the disputes relating to the estate of the deceased, and in that regard would undertake as follows:

to implement and faithfully carry out all the wishes of the deceased as manifested and executed by the deceased in the 1988 Will both in substance and according to the spirit of the 1988 Will notwithstanding that the 1988 Will may in any way be defective or unenforceable in law.

Both the statutory declaration and the deed were made after the decision of the learned assistant registrar

At the hearing of the appeal before the learned judicial commissioner, the second respondent was separately represented by counsel, and his counsel informed the court that the second respondent and the appellant had reached...