Lai Min Tet and Another v Lai Min Kin and Another and Another Application

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 09 January 2004
• Neutral Citation: [2004] SGHC 3
• Docket Number: Originating Summons No 753 of 2003 Originating Summons Transfer No 1 of 2003
• Date: 09 January 2004
• Year: 2004
• Published date: 04 February 2004
• Plaintiff Counsel: William J M Ricquier and Cheryl Lim (Tan Rajah and Cheah)
• Citation: [2004] SGHC 3
• Defendant Counsel: Raphael Lee (Lee and Lee)
• Court: High Court (Singapore)
• Subject Matter: Whether evidenced in writing,Whether presumption of advancement displaces resulting trust,Whether sufficient evidence of intention to create resulting trust,Presumption,Family Law,Trusts,Whether presumption valid in modern times,Resulting trusts,Advancement

The background

1 In Originating Summons No 753 of 2003 (“the OS”), Lai Min Tet (“LMT”) and Lai Min Fee (“LMF”) applied inter alia for the following reliefs against Lai Min Kin (“LMK”) and Robert Lai Tien Keon (“Robert”):

(a) a declaration that the property known as No 3, Jalan Kembang Melati (“the property”) registered in the names of LMK and Robert is held on trust for LMK, Robert and LMT as well as LMF in equal shares, alternatively, in such shares as the court determines;

(b) in the alternative, that the property be sold pursuant to s 3(4) of the Residential Property Act (Cap 274, 1985 Rev Ed) and the sale proceeds be distributed equally among LMK, Robert, LMT and LMF, alternatively in such shares as the court determines.

2 Conversely, in Originating Summons Transfer No 1 of 2003 (“the Transfer OS”), LMK and Robert claimed against LMT and LMF for the following reliefs:

(a) an order that they show cause why caveat CV/93645H (“the caveat”) which they lodged against the property on 21 September 2000 against the whole of the property should not be withdrawn, removed and struck off the Land Register;

(b) an order that they forthwith withdraw the caveat from the Land Register and in default, the Registrar of Titles be directed to remove the aforesaid caveat;

(c) an order that they pay compensation to LMK and Robert under s 128 of the Land Titles Act (Cap 157, 1994 Rev Ed) for having lodged the caveat wrongfully or vexatiously or without reasonable cause;

(d) an order that each of them be restrained from lodging any further or other caveat or caveats in respect of the property.

3 The above two matters came on for hearing before me on the same day. I granted the OS (with costs to LMT and LMF) and declared that the property is held on trust by LMK and Robert for themselves as well as for LMT and LMF in four equal shares. I further gave the parties liberty to apply. I dismissed the Transfer OS with costs to LMT and LMF. LMK and Robert are dissatisfied and have filed Civil Appeals Nos 113 and 114 of 2003 respectively against my decisions in the Transfer OS and the OS.

The facts

4 The facts stated in the following paragraphs are extracted from the affidavits filed by the parties, principally in the Transfer OS.

5 LMT, LMK, Ernest Lai Min Enn (“Ernest”) and LMF are the four sons of Lai Kah Joo (“the father”) and his wife Chung Sook Yow (“CSY”). LMT is the oldest, while LMF is the youngest, of the siblings. The father passed away on 21 September 1994, CSY died on 5 January 1996 while Ernest passed away in January 2000. Robert is a son of Ernest.

6 The father was a bank manager (of Chung Khiaw Bank) for about 15 years from 1959. He was an astute businessman who invested well, mainly in properties in Singapore, Malaysia and Australia. He was able to send his four sons overseas for tertiary education in Australia where they all attained professional qualifications, three as medical doctors and one as an engineer. The father was also a well-organised person who kept financial and other records meticulously, to the extent that he numbered the letters he wrote to his sons.

7 In 1967, the father bought the property from Chip Guan Realty Limited for a consideration of $81,500. The property was registered in the names of LMK and CSY as joint tenants. The father’s name, although included in the first page of the Deed of conveyance dated 31 July 1967, was subsequently deleted. However, the mortgage of same date granted in favour of Overseas Union Bank Limited (“OUB”) to secure an overdraft facility of $40,000, included the father’s name (together with CSY’s) as borrower, whilst LMK was the surety. At that time, LMK was the only son residing in Singapore as all his other siblings were still studying in Australia.

8 On 12 July 1971, the father and CSY executed mutual wills. In the event one of them predeceased the other, the survivor bequeathed his or her entire estate to the four sons in equal shares.

9 On 21 February 1973, CSY’s interest in the property was transferred to Ernest for a consideration of $60,000. The 1973 mortgage was subsequently discharged in December 1983 and replaced by a new mortgage, also in favour of OUB, to secure a loan of $650,000.

10 On 23 November 1979, the father and CSY executed wills in Australia. The father bequeathed all his Australian properties to LMK while CSY bequeathed all her Australian properties to LMT. The Australian properties (two properties) of the father and CSY were however subsequently sold, in November and August 1984 respectively.

11 On 3 January 1984, the father’s name was added as a joint tenant to the property in return for a stated consideration of $230,000 paid to the other two joint tenants, LMK and Ernest (which LMK denied he and Ernest received). A mortgage of the property was granted at the same time to OUB to secure a loan of $150,000. By then, the father had retired while LMK and Ernest had qualified as an electrical engineer and a doctor respectively.

12 Upon the father’s demise on 21 September 1994, his interest in the property devolved to LMK and Ernest by virtue of the right of survivorship. By an Instrument of Declaration to Sever a Joint Tenancy lodged with the Land Titles Registry on 28 August 1996, LMK and Ernest severed their joint tenancies. Thenceforth, they held the property as tenants-in-common in equal shares, as neither wanted the right of survivorship to apply, for the sake of their own families.

13 Before his demise on 21 September 1994, the father consulted a lawyer Cyrus Patel (“Patel”) on making a fresh will. A draft will was prepared by Patel in July 1993 as well as a deed of severance for the property. The draft deed of severance was executed by the father but not the will, before he passed away at the ripe old age of 91. An affidavit was filed by Patel to confirm these facts.

14 By a Transfer dated 23 November 1999 and registered on 3 December 1999, Ernest transferred his half interest in the property to Robert, for a stated consideration of $1.5m.

15 LMT and LMF were prompted to lodge the caveat as a result of a conversation between LMF and the wife of Ernest on 6 December 1999. LMF called to inquire about Ernest’s health, which had deteriorated since 1997, when it was discovered that Ernest was suffering from lung cancer. In the course of conversation with his sister-in-law, LMF was shocked to be told that Ernest had transferred his share of the property to Robert two years earlier. Later, LMF and LMT found (from searches conducted in the Registry of Titles) that this information was untrue as the Transfer was in fact effected in November 1999 and registered three days before LMF’s conversation with Ernest’s wife.

16 LMF spoke to LMK on 7 December 1999 and suggested that the property be sold with the sale proceeds being divided equally amongst the four brothers, in view of the serious illness of Ernest. He said LMK gave a non-committal answer, which LMK denied. LMK deposed (in his third affidavit) that he was simply shocked and surprised. After recovering from his shock, LMK informed LMF that the matter had long since been decided by the father to which LMF responded with an “okay” before he hung up the telephone.

17 According to LMF, he had several conversations over December 1999 and January 2000 with LMK who alleged that the properties in Australia belonged to LMF and LMT while the property in Singapore belonged to him and Ernest. LMF reminded LMK that the Australian properties had already been sold and the sale proceeds repatriated back to Singapore to the father and CSY. The money had been used by the father for general as well as for funeral expenses. LMF pointed out that the father had intended, under his will, that all four sons should share the property equally. LMK replied that the father’s will did not count.

18 Despite the fact that the father and CSY had executed mutual wills back in 1971 (which wills had never been revoked), LMF complained that LMK petitioned (in October 1995) for letters of administration (in Probate No 2162 of 1995 in the Subordinate Courts) to the father’s estate, on the basis he had died intestate. I should point out that LMK in his third affidavit disclaimed knowledge of the father’s will which he said he only knew in June 2000 when it was revealed by LMT. He added that he had asked CSY at the time of the father’s demise and she had told him the father did not leave a will. The petition was accompanied by a Renunciation and Consent form filed by CSY. The grant of letters of administration was extracted on 10 January 1998. LMF alleged that as the administrator, LMK was supposed to distribute one-eighth of the father’s estate to LMF and LMT but he never did. LMF said the father had various bank accounts which held moneys totalling $267,705.70 but neither he nor LMT received their share of $33,463.21 ($267,705.70 ÷ 8) from LMK. The figure $267,705.70 appears in the schedule of assets that the Commissioner of Estate Duties attached to the Grant of Probate (exhibited by LMF in his supplementary affidavit filed on 9 July 2003). This allegation was denied by LMK. In item 5 of the schedule, the property was stated to be exempted from estate duty, pursuant to s 14(3)(a) of the Estate Duty Act (Cap 96, 1997 Rev Ed).

19 Both LMT and LMF are Australian citizens and currently reside in Sydney, New South Wales. According to valuation reports commissioned by counsel for LMT and LMF, the property (which comprises of a two-storey detached house sitting on 10,409 sq ft or 967 m² of freehold land) was valued at $450,000 as at January 1973 and $1m as at December 1983.

20 I should observe that throughout the years, all four sons borrowed various sums of money from the father, either to purchase homes for their families or clinics for their medical practices, or both. They were expected to, and did, repay the loans unless the father “forgave” their debts. Even then, LMT deposed that he continued to repay the...