Khor Liang Ing Grace (executor of the estate of Tan See Wee, deceased) v Nie Jianmin

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 13 October 2014
• Neutral Citation: [2014] SGHC 202
• Plaintiff Counsel: Ling Tien Wah (Rodyk & Davidson LLP)
• Docket Number: Case No P179 of 2014 (Summons No 2787 of 2014)
• Date: 13 October 2014
• Hearing Date: 03 September 2014
• Subject Matter: Probate and administration,grant of probate
• Year: 2014
• Citation: [2014] SGHC 202
• Defendant Counsel: Goh Siong Pheck Francis and Chong Yimei (Harry Elias Partnership LLP)
• Court: High Court (Singapore)
• Published date: 17 October 2014

Tan Siong Thye J: Introduction

This is an application by Khor Liang Ing Grace (“Ms Khor”), the executor of the estate of Tan See Wee, her deceased husband (“the deceased”). She seeks to remove a caveat filed by Nie Jianmin (“Ms Nie”) against a grant of probate for the purposes of executing the deceased’s will.

Ms Nie’s caveat was lodged on the basis of an alleged $762,000 loan she had made to the deceased not long before his demise. She is claiming this sum from the deceased’s estate. I have to decide whether there was such a loan and also whether the caveat should be removed.

The facts

The deceased was a banker and fund manager working first as an investment manager with the Development Bank of Singapore. Later, he worked as a fund manager with Merrill Lynch Asset Managers.¹ He died on 18 March 2014,² leaving behind his will which named Ms Khor as the sole executor and trustee of his estate.³ There is no dispute about this.

The dispute

Soon after the deceased’s death, Ms Nie lodged a caveat against the grant of probate in respect of the deceased’s estate. This was filed on 26 March 2014.⁴ Ms Nie claims that she has an interest in the deceased’s estate as the deceased owed her $762,000.⁵ Her version of the story is that she had lent money to the deceased, whom her husband, Tan Chau Chuang (“Mr Tan”), had described as a “reliable long term friend”.⁶ She claims that she had only lent the money on her husband’s assurance that the deceased was financially sound and would repay the money. Pursuant to this, she handed the deceased a cashier’s order for $762,000 in the deceased’s name on 30 December 2013.⁷ Ms Nie thus claims that she lodged the caveat to protect her interest as a creditor.⁸

Ms Khor’s story is different. The sum was not a loan but rather an investment in the deceased’s new project in Vietnam. The deceased told her that he had entered into an investment. She then found out that Mr Tan had invested his money into the deceased’s new project as well.⁹ Her position therefore is that the $762,000 was not a loan given to the deceased but an investment made by Mr Tan in a business venture with the deceased.

The present proceedings

Subsequently, Ms Khor made an application on 24 April 2014 in her capacity as the executor of the deceased’s estate. She sought for probate to be granted to her.¹⁰ The next day, she filed her supporting affidavit pursuant to O 71 r 5 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC”). The supporting affidavit was filed together with an extract from the Register of Deaths (stating the cause of the deceased’s death) and his last will.¹¹ It was then that her lawyers informed her that a caveat had been lodged by Ms Nie against the grant of probate. As Ms Khor had always known Ms Nie as “Jessie”, she did not know that they were the same person until later. It was only after speaking with Mr Tan and a friend, Teoh Teik Kee (“Mr Teoh”), that she drew the connection between the caveat that was filed by Ms Nie and the $762,000 investment purportedly made by Mr Tan.¹²

The meeting between Ms Khor and Mr Tan in the presence of Samuel Koh

In order to understand the circumstances surrounding the alleged debt of $762,000, Ms Khor met Mr Tan on 23 May 2014 with a friend, Samuel Koh (“Mr Koh”). At the meeting, Mr Tan stated that the deceased had owed him US$500,000. This sum was Mr Tan’s investment in the deceased’s Vietnam project. This was an investment in Tri Viet Media Corp (“TVM”), a Vietnamese media company.¹³

As proof of Mr Tan’s investment, Ms Khor was shown copies of the remittance advice to the deceased. She was also shown text messages sent through WhatsApp Messenger between Mr Tan and the deceased, indicating that the deceased had asked Mr Tan to prepare a curriculum vitae to be presented to a Vietnamese company with him as a potential investor.¹⁴

Ms Khor later understood from the meeting that Mr Tan had subsequently borrowed money from Ms Nie to invest in TVM – he did not have the money to invest in the project then. As the deceased had passed away, Mr Tan sought a return of his investment and the caveat was filed to protect his investment interest.¹⁵

The show cause action

On 26 May 2014, a notice was served on Ms Nie’s solicitors. It warned her to appear within eight days of service to file a notice of appearance stating her interest in the estate of the deceased. If she had no contrary interest, then she had to show cause against the grant of probate to Ms Khor. The court would proceed to issue a grant of probate to the executor if she defaulted.¹⁶

Ms Nie thus entered her appearance on 3 June 2014 showing cause against the grant of probate to Ms Khor. She alleged that she was a creditor of the deceased’s estate. Therefore, the grant of probate should not be made unless her interests could be assured. On the other hand, Ms Khor requested that Ms Nie’s caveat be expunged.¹⁷

In addition to her objections against the grant of probate to Ms Khor, Ms Nie also requested that her claim be recognised and that the court make an order for Ms Khor to repay the debt to her.¹⁸

The issues

On the above facts, the following issues are: whether this court has the power under s 33 of the Probate and Administration Act (Cap 251, 1985 Rev Ed) (“PBA”) to hear or grant Ms Nie’s application for her debt claim to be recognised or to order that the debt be repaid to her; and whether Ms Nie has a caveatable interest against the deceased’s estate.

Does this court have the power under s 33 of the PBA to hear Ms Nie’s debt claim or grant Ms Nie’s application for her debt claim to be recognised or to order that the debt be repaid to her?

Section 33 of the PBA reads as follows: Caveat 33. Any person having or claiming to have interest may, at any time after the death of a deceased person and before probate or letters of administration have been granted to his estate, enter a general caveat, so that no probate or letters of administration shall be granted without notice to the caveator, and after entry of any such caveat no such grant shall be made until the caveator has been given opportunity to contest the right of any petitioner to a grant.

Ms Khor submits that this court does not have the power under s 33 to hear or grant Ms Nie’s application. This is because, in her view, the court neither has the power to recognise Ms Nie’s debt claim of $762,000, nor the power to order the executor to pay the alleged debt owed to Ms Nie when probate has yet to be granted.¹⁹ She also submits that this power is absent under O 71 r 37 of the ROC.²⁰ Does this court have the power under s 33 of the PBA or O 71 r 37 of the ROC to adjudicate on Ms Nie’s debt claim before the grant of probate? In order to determine this question, regard must be had to the purpose of s 33 of the PBA.

Section 33 allows one to lodge a caveat against the grant of probate. The person seeking the grant of probate will then be notified before the grant of probate is issued: Halsbury’s Laws of Singapore vol 15 (LexisNexis, 2013 Reissue) (“Halsbury’s Laws of Singapore”) at para 190.015. The following passage from Jonathan Winegarten, Roland D’ Costa & Terry Synak, Tristram and Coote’s Probate Practice (LexisNexis, 30th Ed, 2013) at para 23.04 is instructive (see also G Raman, Probate and Administration in Singapore and Malaysia (LexisNexis, 3rd Ed, 2012) (“Probate and Administration in Singapore and Malaysia”) at p 134):

The following are some of the purposes for which a caveat may be entered:

(a) to give time to the caveator to make enquiries and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant; (b) to give any person interested in the estate an opportunity of bringing any question arising in respect of the grant before the court on summons; and (c) as a step preliminary to a probate claim, or to the issuing of a citation … Once the caveat has been filed, the caveator has to show cause why the grant of probate should not be given. Typically, the show cause action would take place when the caveator wants some form of assurance that the deceased’s estate would be administered in the interests of all the beneficiaries: Probate and Administration in Singapore and Malaysia at p 135.

Accordingly, I am of the view that this court does not have the power under s 33 of the PBA or O 71 r 37 of the ROC to decide on the merits of Ms Nie’s debt claim. The power under s 33 of the PBA or O 71 r 37 of the ROC should only be invoked insofar as Ms Nie seeks to establish a contrary interest in the estate, which arises if she is claiming an interest either as an executor or beneficiary of the will: Ng Peng Hong, George Tan Keok Heng and Ho Hock Lai, Atkin’s Court Forms Singapore (LexisNexis, 2007) at para 1004. The rights of a creditor should not be adjudicated at this stage. As Sir William Wynne in Elme v Da Costa (1791) 1 Phill Ecc 174 at 177 held:

The right of a creditor is only this; he cannot be paid his debt till a representation to the deceased is made; he can then call on all who have a right to administer; before an administration is granted if a will be produced, the creditor has no right to contradict or deny it; for if there is a will, or a next of kin claims the administration, then a person offers to make himself a representative, and the creditor gets all that he has a right to. [emphasis added]

It is clear that the caveat lodged by Ms Nie cannot circumvent the usual probate procedure. If she is alleging that she is a creditor of the deceased, she should wait for the executor to obtain the grant of probate before submitting her claim to the estate via the executor or administrator: Halsbury’s Laws of Singapore at para 190.095. It is not for this court to adjudicate on her claim at this stage and find that she was owed a loan or make an order for its return.

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