Kuntjoro Wibawa v Harianty Wibawa and others

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 01 June 2016
• Neutral Citation: [2016] SGHC 109
• Court: High Court (Singapore)
• Docket Number: Suit No 650 of 2011
• Year: 2016
• Published date: 06 July 2016
• Hearing Date: 02 September 2015,12 August 2015,21 August 2015,20 August 2015,04 December 2015,11 August 2015,19 August 2015,03 September 2015,14 August 2015,04 September 2015,28 August 2015,18 August 2015,16 December 2015,13 August 2015,26 August 2015,01 September 2015,25 August 2015,27 August 2015
• Plaintiff Counsel: Ooi Oon Tat (Judy Cheng & Co) (instructed), Syed Hassan Bin Syed Esa Almenoar (R Ramason & Almenoar)
• Defendant Counsel: Lek Siang Pheng, Koh Kia Jeng, Tan Yee Siong, Amogh Chakravarti (Rodyk & Davidson LLP),Glenn Jeyasingam Knight (Glenn Knight),Susan Jacob (Susan Jacob),Sim Kwan Kiat and Nigel Desmond Pereira (Rajah & Tann Singapore LLP),K Muralidharan Pillai, Luo Qinghui, Huang Jieyang, Mark Foo (Rajah & Tann Singapore LLP)
• Subject Matter: Trusts -Breach of Trusts -Defences,Trusts -Offshore Trusts -Wealth Protection,Probate and Administration -Executors
• Citation: [2016] SGHC 109

Belinda Ang Saw Ean J: Introduction

This action concerns a family dispute that pits an erstwhile trusted son, Kuntjoro Wibawa, the plaintiff (“Kuntjoro”), against his elderly mother, Harianty Wibawa, the first defendant (“D1”). Kuntjoro seeks to recover the inheritance which he ought to have received under the Last Will and Testament of his late father, Purnakarya Wibawa (“the deceased”), dated 13 February 1996 (“the 1996 Will”). Other defendants that were dragged into the inheritance dispute included his five siblings: Karjana Wibawa, the second defendant (“D2”), Tjandrawati Wibawa, the third defendant (“D3”), Purnawati Wibawa, the fourth defendant (“D4”), Sundari Wibawa, the fifth defendant (“D5”) and Lindijasari Wibawa, the sixth defendant (“D6”). D2 to D6 are hereafter referred to collectively as “the Siblings”. At the centre of the inheritance dispute is an offshore trust set up by D1 with the assistance of BNP Paribas Wealth Management, the ninth defendant (“D9”). The offshore trust which D1 established in Jersey is the Pride Wise Trust. The Pride Wise Trust in turn holds the sole issued share in an offshore holding company, Bright Noble Prime Ltd, the seventh defendant (“D7”). The trustee of the Pride Wise Trust is BNP Paribas Jersey Trust Corporation Ltd, the eighth defendant (“D8”) and the nominees of D8 sit on the board of D7. By suing these parties, Kuntjoro hopes to be able to somehow recover (directly or indirectly) his inheritance.

The trial of this action took place over 16 days in August and September 2015. The first few days of the trial dealt with the limitation defence raised by D9 and the other defendants as a preliminary issue, save for D1 who reserved her right to rely on the defence of limitation at the main trial. The limitation defence was that all the claims against the relevant defendants, ranging from knowing assistance in the setting up of the Pride Wise Trust, to wrongful transfers of assets to D7, and to withdrawals of certain sums of money from several bank accounts, did not accrue within six years prior to the commencement of the present action on 21 September 2011. On the preliminary issue, I found against Kuntjoro and the reasons for dismissing his claims as time-barred are made clear in the Record of Oral Judgment dated 19 August 2015.

As to the remainder of Kuntjoro’s claims against the Siblings for wrongful withdrawals of sums of money that were not time-barred, respective counsel for the Siblings, at the close of Kuntjoro’s case, submitted that there was no case to answer; Kuntjoro had not adduced evidence to show that the withdrawals in question were made by the defendants accused of the misdeed and that the withdrawals per se were unlawful. I agreed with counsel and dismissed Kuntjoro’s remaining claims against the Siblings. The reasons for the dismissal are found in the Record of Oral Judgment dated 4 September 2015.

This judgment is solely on Kuntjoro’s case against D1. Hence, this judgment deals only with the facts and arguments that are relevant to his primary case against D1 as executrix of the 1996 Will and as constructive trustee of the assets transferred to D7. The primary complaint is that Kuntjoro has not received his inheritance and many years have passed since the deceased died in Jakarta on 30 January 2000. Kuntjoro claims against D1, who is the named executrix of the 1996 Will, for failing to apply for grant of probate despite his repeated demands made over the years, and for withholding his inheritance. More importantly, D1 had taken over the assets held in several jointly-held bank accounts as her own to set up the Pride Wise Trust and D8 had made distributions out of the Pride Wise Trust. Kuntjoro claims that, in so doing, D1 had deprived Kuntjoro of: (a) his inheritance as a beneficiary under the 1996 Will; or (b) his share of the assets as one of the account holders of seven jointly-held bank accounts. These seven bank accounts (“the 7 Accounts”) are set out in Kuntjoro’s pleadings and they are enumerated at [9] below. Not only does Kuntjoro want D1 to pay damages for breach of trust, he has asked for many declaratory orders. Kuntjoro’s claims that the assets in the form of money and investments that were settled into the Pride Wise Trust were not owned by D1 as the settlor of that trust, and even though he is not asking for the Pride Wise Trust to be declared invalid from inception and for it to be revoked, he is nevertheless seeking, amongst other things, an order that the assets in the Pride Wise Trust be distributed in a manner consistent with his inheritance or his interest as joint account holder of the 7 Accounts. It is Kuntjoro’s case that he transferred the assets in the 7 Accounts to D1 who received the assets as constructive trustee and is accountable to him accordingly. To the extent that Kuntjoro has made broad claims for declarations against all the defendants, the court’s decision on the substantive issues concerning D1 may impact D2 to D9 in a nominal sense.

D1 accepts that there was no distribution under the 1996 Will for the reason that the assets in the form of money and investments in the 7 Accounts did not form part of the deceased’s residuary estate as they belonged to D1 and not to the deceased. Alternatively, if the assets in the 7 Accounts belonged to the residuary estate of the deceased (“estate assets”), the Wibawa children (ie, Kuntjoro and the Siblings) did not receive the inheritance to which they were entitled under the 1996 Will as they had gifted their inheritance to D1, who used the gift to set up the Pride Wise Trust. On either view of the ownership issue, Kuntjoro had all the time agreed to set up an offshore trust in Jersey with D7 as the underlying offshore company. With the exception of Kuntjoro, the Siblings have not disputed D1’s ownership of the assets used to set up the Pride Wise Trust. Suffice to say for now that the setting up of the offshore trust to hold the assets was a strategy taken to protect the family wealth.

Even if the Pride Wise Trust was set up with estate assets, D1 argues that the relief sought by Kuntjoro should be refused on the ground that Kuntjoro had agreed to the asset-protection strategy which involved the use of an offshore trust (ie, the Pride Wise Trust) in conjunction with an underlying offshore company (ie, D7). Furthermore, the action against D1 should be dismissed even if she is adjudged to be in breach of duty as named executrix of the 1996 Will or as constructive trustee of the estate assets. D1 raises Kuntjoro’s consent or concurrence as a defence to Kuntjoro’s claim for breach of trust. D1 also relies on Kuntjoro’s knowledge and acquiescence, as demonstrated by his participation and affirmation in the creation of the Pride Wise Trust and by his further affirmations from his actions as protector of the same. Arguably, Kuntjoro did not object to the assets being used to set up the Pride Wise Trust until the relationship between the two sides deteriorated, and this acrimonious dispute has only arisen now that the two sides have fallen out. All in all, it is D1’s case that Kuntjoro, having agreed to the setting up of the Pride Wise Trust and having acted as its protector (which involved him giving investment directions to D8), had waived his rights to the assets in the 7 Accounts and/or is estopped from contending otherwise and making the claims pleaded.

At the trial of the action against D1, Mr Syed Hassan Bin Syed Esa Almenoar (“Mr Almenoar”), who was assisted by Mr Ooi Oon Tat (“Mr Ooi”), represented Kuntjoro. Counsel for D1 was Mr Lek Siang Pheng (“Mr Lek”), who was assisted by Mr Koh Kia Jeng, Mr Tan Yee Siong and Mr Amogh Chakravarti.

Background facts

It is convenient to begin with an outline of some background facts which will provide a contextual framework to explain Kuntjoro’s claims and D1’s defences to these claims.

As stated, the 7 Accounts featured prominently in the present dispute. Kuntjoro’s pleaded case is that on the date of the deceased’s death on 30 January 2000, the assets in the 7 Accounts had a value of US$12,322,892.35. The table below sets out Kuntjoro’s pleaded case on the details of the 7 Accounts, the names of the account holders and the asset value:

No.	Description of account	Account holders	Value of assets
1	BNP Paribas Private Bank Account No XX-16802 (“BNP 16802”)	Kuntjoro D2 D3	US$3,124,514.76
2	HSBC SA Bank Account No XXXX-XXX419 (“HSBC 419”)	Kuntjoro D2 D3 D4 D5 D6	US$3,983,959.52
3	HSBC Select Bank Account No XXX-XXXXXX-XXX-XXXXXX-85	Kuntjoro D2 D3 D4 D5 D6	S$2,331,546.07 (equivalent to US$1,370,691.40)
4	Bank Brussels Lambert Account No XXX-XXXXXXX-XX-011	Kuntjoro D2 D3 D4 D5 D6	US$1,675,032.75
5	Merrill Lynch Account No XXX-21896	Deceased Kuntjoro D1 D2	US$1,073,666.00
6	Salomon Smith Barney Account No XXX-XXXXX-11	Kuntjoro D1 D2	US$749,571.61
7	Bank of China Account Nos XXX-X-XXX545-6; XXX-XXX-XXXX458-4; andXXX-XXX-X-XXX313-4 / XXX819	Kuntjoro D2	US$234,093.84 HK$859,956.80 (equivalent to US$111,364.51)
Total	US$12,322,892.35

As can be seen, the accounts were opened at different banks in the names of the deceased, Kuntjoro, D1 and the Siblings in different combinations. D1 disputes some of the account numbers in her Affidavit of Evidence-in-Chief (“AEIC”). I also note, parenthetically, an arithmetical error in the table above. The total amount should be US$12,322,894.39 instead of US$12,322,892.35. However, nothing turns on this arithmetical error or the alleged inconsistencies with the account numbers.

During the trial, the court was informed that, as at 31 July 2015, the Pride Wise Trust had a total asset value of US$33,808,919. This figure does not appear to take into...