Kuek Siew Chew v Kuek Siang Wei and another

• Jurisdiction: Singapore
• Judge: George Wei JC
• Judgment Date: 18 November 2014
• Neutral Citation: [2014] SGHC 237
• Plaintiff Counsel: Tng Kim Choon (KC Tng Law Practice)
• Docket Number: Suit No 966 of 2012
• Date: 18 November 2014
• Hearing Date: 18 March 2014,12 March 2014,19 March 2014,14 March 2014,13 March 2014,17 March 2014,12 June 2014,08 September 2014
• Subject Matter: Equity,Deeds and Other Instruments,Undue Influence,Probate and Administration,Distribution of Assets,Deeds
• Year: 2014
• Citation: [2014] SGHC 237
• Defendant Counsel: Gopalan Raman (KhattarWong LLP)
• Court: High Court (Singapore)
• Published date: 19 November 2014

George Wei JC: Introduction

This was a case arising out of a family dispute over the estate of Kuek Ser Beng (“KSB”), who passed away on 30 January 2007 without leaving a will. The plaintiff, Kuek Siew Chew (“the Plaintiff”), is a daughter of KSB, while the defendants, Kuek Siang Wei (“KSW”) and Kuek Tsing Hsia (“KTH”) (referred to collectively as “the Defendants”), are the grandchildren of KSB. The Defendants are the administrators of KSB’s estate. The central dispute in the present case pertained to the validity of three instruments – a letter of consent, a deed of consent and a deed of family arrangement. The primary effect of these instruments was to allow KSB’s estate to be distributed in accordance with an unsigned note purportedly written by KSB. The trial took place over a period of six days and I reserved judgment upon the conclusion of the trial. Having considered both the evidence and the parties’ submissions, I allowed the Plaintiff’s claim in part. The letter of consent, deed of consent and deed of family arrangement were set aside and KSB’s estate was to be distributed in accordance with the rules set out in the Intestate Succession Act (Cap 146, 2013 Rev Ed) (“the ISA”). The Defendants have since filed an appeal against my decision and I now set out the grounds for my decision.

The facts

At the outset, it is observed that the dispute between the parties involved a mix of both factual and legal issues. While it is recognised that the parties have given a relatively comprehensive and wide-ranging account of the events that had taken place over the course of almost six years after KSB’s demise back in 2007, for the purposes of this decision, I will only focus on the facts that are relevant to the issues at hand.

Dramatis personae

I will first begin with a brief description of the main persons involved in the present dispute: KSB: KSB passed away on 30 January 2007 without leaving a will. He was married to Lim Swee (“LS”) and they had three children. KSB also had a second family with Goh Ah Pi (“GAP”) and they had five children. LS: The late wife of KSB. LS passed away on 19 October 2012. Kuek Hock Eng (“KHE”): The late son of KSB and LS. He was originally the administrator of KSB’s estate and was subsequently replaced by the Defendants upon the discovery that he was a bankrupt. KHE passed away on 16 April 2013. Ho Per Jong (“HPJ”): The wife of KHE. She gave evidence for the Defendants, who are her children, in the present action. Kuek Siew Chew: The daughter of KSB and LS. She is the Plaintiff in the present action. Kuek Siew Eng (“KSE”): The other daughter of KSB and LS. She was a Plaintiff’s witness in the present action. Kuek Siang Wei: The son of KHE and HPJ. He is the first defendant in the present action. Kuek Tsing Hsia: The daughter of KHE and HPJ. She is the second defendant in the present action.

For ease of reference, LS’ family will be referred to as the first family while GAP’s family will be referred to as the second family. While the matter was disputed, it appears that prior to KSB’s demise on 30 January 2007, the first family did not know that KSB had another family with GAP or that if they did, they did not know much about the second family.

On his death, KSB did not leave behind any will, but the first family subsequently found in KSB’s safe a note dated 23 May 2002 purportedly written by him, setting out the division of his assets amongst the members of the first family and the second family. However, the note could not be recognised as a valid testamentary instrument under the law as KSB had failed to affix his signature on it and it was not attested to by any witness.

The unsigned note tendered as evidence was a photocopy of the original handwritten note.¹ The unsigned note was predominantly written in Chinese. While a certified translation was not provided, an English version was set out in KSW’s affidavit of evidence-in-chief.² The substance of KSB’s wishes as set out in the unsigned note was not disputed by the parties. For ease of reference, they are briefly set out as follows: KSB’s house at Toh Tuck Road (“the Toh Tuck Property”) was given to KSW and his brother, Kuek Yong Wei (“KYW”). These are the grandsons of KSB. Two properties located in Johor Bahru, Malaysia were given to KHE. The Jurong Kechil shophouse was given to the second family. A sum of $1.65m was to be divided as follows: KHE (son of KSB): $400,000; KSE (daughter of KSB): $200,000; the Plaintiff (daughter of KSB): $200,000; LS (wife of KSB): $200,000; HPJ (wife of KHE): $200,000; KTH (daughter of KHE): $100,000; Kuek Tsing Qi (daughter of KHE): $100,000; Kuek Tsing Xiu (daughter of KHE): $100,000; Kerk Hup Hin (brother of KSB): $100,000; Yak Hong Eng (wife of Kerk Hup Hin): $50,000. The balance of the cash and shares, which was not particularised in the note, was given to KSW and KYW (the sons of KHE and grandsons of KSB).

The significant points to be gleaned from the unsigned note are set out as follows: The daughters of KSB, the Plaintiff and KSE, were each given $200,000, with no share in the residuary estate. The deceased’s son, KHE, was to receive the two properties in Johor Bahru, Malaysia, together with a sum of $400,000. The grandsons of KSB, KSW and KYW, were to receive the bulk of the estate, that is, the Toh Tuck Property and the remaining cash and shares. While the unsigned note referred to the residuary estate, it did not indicate the size of the balance of the cash and shares. As will be seen later, the residuary estate is, in fact, very substantial. The second family’s share was limited to the Jurong Kechil shophouse. The second family comprises GAP and her five children.

Thereafter, KSB’s wife from the first family, LS, executed a deed of consent dated 19 March 2007.³ This deed of consent was signed (by application of LS’ thumb print), sealed, delivered and witnessed by a commissioner for oaths. This deed sets out LS’ consent to the wishes of KSB as reflected in the unsigned note and also to the appointment of KHE as the administrator of the estate.

The evidence was that in or around the same time, a letter of consent (“the letter of consent”) was signed by all 17 parties named in the note, including members of the second family, signifying their agreement to abide by the wishes of KSB as set out in the note.⁴

The evidence as to when this letter of consent was signed by the parties named in the note was disputed. Indeed, I note that there was no attestation to the parties signing the letter of consent. Neither was there a date to indicate when each party had signed the letter of consent. The evidence, however, supports the view that the letter of consent was signed shortly after 19 March 2007 when a family meeting was held at KSB’s home on the 49th day of his death. That said, it also appears that the Plaintiff did not sign it during the meeting at KSB’s home. Instead, she and KSE signed the letter of consent later in the evening of that day. The important point, however, is that it was undisputed that the Plaintiff and KSE had signed the letter of consent.

While it is accepted that the unsigned note was found in KSB’s safe at the Toh Tuck Property, it is acknowledged that the date when the note was found was disputed. In this regard, the evidence of the Plaintiff was difficult to follow. At one point in time, the Plaintiff appeared to state that the note was only found some three or four months after 19 March 2007. This seemed rather unlikely. Indeed, Kerk Teck Sim, a cousin of the Plaintiff who gave evidence on the opening of the safe, estimated that the safe was opened by a locksmith engaged by him and in his presence some two months after KSB’s death. It is notable that Kerk Teck Sim was not a beneficiary under the unsigned note and he does not enjoy any rights under the intestacy laws.

I also note that while the Plaintiff stated in evidence that she could not confirm the handwriting in the unsigned note as belonging to KSB, the evidence as a whole supports the conclusion that the unsigned note was genuine. In fact, KSE agreed under cross-examination that the unsigned note was written by her father, KSB.⁵

Thereafter, KHE applied for the grant of letters of administration in respect of KSB’s estate in or around September 2007.⁶ Notwithstanding his status as an undischarged bankrupt, KHE was appointed to be the administrator of the estate pursuant to an order-in-terms granted by the court. However, the order was not extracted over the course of the next three years. Throughout this time, the law firm, M/s P S Goh and Co, had conduct of the matter and was responsible for preparing the aforesaid documents and KHE’s application.

Subsequently in 2010, GAP from the second family signified that she did not want to be bound by the unsigned note and claimed to be entitled to a half share of KSB’s estate on the basis of the intestacy regime. In this regard, she lodged a caveat against the estate in the Subordinate Courts (as it then was) and filed an application on behalf of herself and her daughter, Kuek Geok Hua (“KGH”), to be added as joint administrators of KSB’s estate.

KHE and his wife, HPJ, then sought the assistance of M/s Sankar Ow & Partners LLP on 10 May 2010 with the intention to resist GAP’s application. The solicitor in charge of the matter at M/s Sankar Ow & Partners LLP, Mr Chia Soo Michael (“Mr Chia”), was of the view that the letter of consent was likely to be upheld as a family arrangement. Mr Chia was said to have repeated this advice at a subsequent meeting with four members of the first family on 13 May 2010.

Notwithstanding this, Mr Chia later issued a written advice to KHE dated 18 May 2010, informing him that there was a possibility that the letter of consent might not be upheld by the court.⁷ Mr Chia also confirmed in the letter that the...