Koh Cheong Heng v Ho Yee Fong

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 02 March 2011
• Neutral Citation: [2011] SGHC 48
• Plaintiff Counsel: Mr Lee Ee Yang (WongPartnership LLP)
• Docket Number: Originating Summons No 566 of 2010
• Date: 02 March 2011
• Hearing Date: 19 October 2010,14 January 2011,05 October 2010
• Subject Matter: Gifts,Trusts
• Published date: 14 March 2011
• Citation: [2011] SGHC 48
• Defendant Counsel: Ms Corinne Taylor (Legal Solutions LLC)
• Court: High Court (Singapore)
• Year: 2011

Judith Prakash J: Introduction

The plaintiff in this action, Mr Koh Cheong Heng (“the plaintiff”), applied via Originating Summons No 566 of 2010 for an order to compel his wife, Mdm Ho Yee Fong (“the defendant”), to transfer all her right, title and interest in the property known as 168 Stirling Road #10-1185 Singapore 141168 (“the Property”) to the plaintiff, to be held by the plaintiff absolutely. The defendant, acting through her litigation representative who was her niece, agreed to the order being made. On 14 January 2011, after considering the plaintiff’s submissions, I made the order sought.

These written grounds of decision are being issued because the case raised interesting issues with regard to the doctrine of donatio mortis causa.

Facts

The plaintiff and the defendant have been married since 1970. They have no children. At the time of hearing, the defendant was 71 years old and the plaintiff was 69 years old. Neither party was employed.

The plaintiff purchased the Property in July 1972 and was registered as the sole owner. From about 1993, the plaintiff has been in ill health and has had several operations. In July 2006, the plaintiff was admitted to hospital with an infection. He remained there in a serious condition for more than two months. Upon his discharge, his mobility was extremely limited and he could only move around with the aid of a wheelchair. Because the defendant was herself advanced in age and found it difficult to attend to the plaintiff, the couple agreed in 2007 that the plaintiff be admitted to the Society For The Aged Sick (“the Home”) so that he could be properly taken care of.

By a transfer document that was registered at the Registry of Titles on 3 November 2006 the plaintiff transferred his interest in the Property to the defendant and himself as joint tenants. As a result, each of the defendant and the plaintiff became the possessor of an undivided interest in the whole of the Property. The transfer was made as a gift without any payment from the defendant because the plaintiff wanted to provide for his wife in case he predeceased her. The plaintiff explained that he had signed the transfer on 8 August 2006 while he was in hospital and thinking he would not recover, because he was concerned to ensure that his wife would own the flat in the event of his death. The execution of the transfer was witnessed by an officer from the Housing and Development Board (“the HDB”) who had attended at the hospital expressly for that purpose. At the time, the plaintiff did not have a lawyer and had not received legal advice on the options open to him.

In 2008, the defendant suffered severe head injuries from a fall. The defendant underwent rehabilitation treatment from 2008 to 2009 but, after her discharge from hospital, she remained partially immobile, with very poor short term memory. She now requires assistance in her daily activities such as eating, hygiene and toilet needs. She is also not able to handle money or deal with assets. The defendant will probably not be able to bequeath the Property by will because, according to a Specialist Medical Report from Tan Tock Seng Hospital, she lacks testamentary capacity. Since 2009, the defendant too has been resident in the Home.

The Property is currently tenanted and the rent is used to cover the living and medical expenses of the parties, including their expenses at the Home.

Having regard to the state of the defendant’s health, the plaintiff recently became concerned about predeceasing her with the result that she would become the sole owner of the Property. In that event, since the defendant is not able to make a will, on her death the Property will be distributed in accordance with the Intestate Succession Act (Cap 146, 1985 Rev Ed) and this means it will be shared equally amongst the children of her deceased brothers and sisters. The plaintiff was not happy about such an outcome as he had furnished the entire purchase price of the Property himself and had transferred an interest in the Property to the defendant in order to provide for her. He had not intended to benefit her relatives since he had relatives of his own.

Accordingly, the plaintiff sought to revoke his gift to the defendant by obtaining a re-transfer of the Property. The plaintiff has provided for the defendant, after the re-transfer of the Property, by stipulating in his will that the Property is not to be sold during the life-time of the defendant and, during such life-time, the rental proceeds of the Property are to be applied to take care of the defendant.

Issues before the court

At the hearing, Mr Lee Ee Yang, counsel for the plaintiff, argued that the plaintiff’s gift to the defendant of a joint interest in the Property was revocable because it was a gift that was conditional upon death, viz, a donatio mortis causa. Citing Snell’s Equity (John McGhee gen ed) (Sweet & Maxwell, 31st ed, 2005) at p 554 (“Snell’s Equity”), Mr Lee contended that because the plaintiff was seeking to revoke the gift before his death, he was entitled to an order for the legal interest in the Property to be transferred back to him.

There were three issues that I had to resolve in making a decision as to whether the plaintiff was entitled to such an order, namely: First, whether there was a valid donatio mortis causa in the present case; Second, whether the operation of donatio mortis causa was precluded by the Wills Act (Cap 352, 1996 Rev Ed); and Third, whether the operation of donatio mortis causa was precluded by the Housing and Development Act (Cap 129, 2004 Rev Ed) (“the HDA”).

First Issue: Whether there was a valid donatio mortis causa in the present case The requirements of a valid donatio mortis causa

The donatio mortis causa recognised by English law was taken from Roman law: see Peter Sparkes, “Death-Bed Gifts of Land (1992) 43(1) N. Ireland Legal Quarterly 35 at p 37 (“Sparkes”) and Andrew Borkowski, Deathbed Gifts – The Law of Donatio Mortis Causa (Blackstone Press, 1999) at pp 5-7 (“Borkowski”). Although three main kinds of donatio mortis causa were recognised in Roman law, only one of the three exists in English doctrine, viz the kind described by Justinian as a gift “where the donor so gives that if indeed he should die, the recipient is the owner of the thing: but, if he should survive or if the donee should predecease him, the donor may take the thing back” (Sparkes at p 38, citing Institutes, Title VII).

As established by English case precedents, three conditions must be made out before a valid donatio mortis causa arises. These three conditions are helpfully summarised in Snell’s Equity at pp 551-555: First, a gift must have been made in contemplation of impending death; Second, the gift must have been made upon the condition that it is to be absolute and complete only on the donor’s death. The condition need not be express, and will normally be implied from the fact that the gift was made when the donor was ill; and Third, there must have been delivery of the subject matter of the gift, or of something representing it, which the donee accepts. When the donor delivers the property, he must intend to part with dominion over it, rather than with mere physical possession.

Application to the present case

In the present case, the first condition was made out because the plaintiff was ill and in contemplation of death in the near future when he transferred the Property to be held in the joint names of the parties. I also found on the facts that the plaintiff had made the said transfer with the intention that it would be absolute only upon his death, thus fulfilling the second condition. This intention could also be inferred from the nature of the transfer ie the fact that it was made to the plaintiff and the defendant as joint tenants mandated that if the defendant were to predecease the plaintiff, the plaintiff would automatically recover his sole interest in the whole of the Property.

The third condition requires more analysis. In Sen v Headley [1991] 2 All ER 636 (“Sen v Headley”), the delivery of a key (that could open a box containing title deeds) was held to be sufficient for a donatio mortis causa of unregistered land. Reasoning from Sen v Headley, a fortiori, in the present case where there was in fact a legal conveyance of registered land, there was delivery of the Property to the defendant. It may be thought that the plaintiff had not parted with dominion over the Property given that he remained as a joint tenant. However, the plaintiff had executed a formal transfer of the Property and submitted it for registration so that the defendant would acquire a legal estate in the Property. In the light of these facts I considered that the plaintiff had parted sufficiently with dominion to satisfy the third condition.

Therefore, I decided that there was a valid donatio mortis causa when the plaintiff transferred the Property to the defendant and himself, to be held in their joint names.

Second Issue: Whether the operation of donatio mortis causa is precluded by the Wills Act

The assertion of a donatio mortis causa is often made in situations which closely resemble an oral (“nuncupative”) will. Accordingly, an issue arose as to whether the operation of donatio mortis causa was precluded by the Wills Act. This is because under s 6(1) of the Wills Act, no will is valid unless, inter alia, it is in writing. A nuncupative will is valid only where it is made by soldiers and mariners (see s 27 of the Wills Act).

Certainly, some aspects of a donatio mortis causa resemble a testamentary disposition (see Snell’s Equity at p 555). For example, both donatio mortis causa and testamentary dispositions are conditional on, and revocable prior to, the donor’s death (see Borkowski at pp 30-35).

In my view, however, a donatio mortis causa is not a nuncupative will. It is instead a sui generis category...