Lee Yoke San and Another v Tsong Sai Sai Cecilia and Another

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 14 November 1992
• Neutral Citation: [1992] SGHC 287
• Docket Number: Originating Summons No 872 of 1991
• Date: 14 November 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: LJ Wong (LJ Wong Soh & Partners)
• Citation: [1992] SGHC 287
• Defendant Counsel: Sia Moon Joon (Chor Pee & Co),Chung Ting Fai (GK Seah & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether office of executor devolves upon the executor of the first-mentioned executor who has proven the will,s 13(d) Probate and Administration Act (Cap 251),Executor of testator's will died before administering all of testator's estate,Transmission of office of executor,Executors,Whether beneficiary of testator entitled to apply for letters of administration de bonis non with will annexed,s 40 Trustees Act (Cap 337),Probate and Administration

The plaintiffs are the executors and trustees of Quek Swee Leng (`Quek`) by his will dated 17 August 1988. The defendants are the daughters of Tsong Chong Yun Lai (` the testator`). The testator by her will dated 17 March 1977 appointed Quek, her godson, and her husband, Tsong Tse Yang, as executors and trustees of her will. Her husband predeceased her. The testator did not alter the will of 17 March 1977. The testator died on 1 May 1990. Quek became the sole executor and trustee of the will of the testator. Probate was granted to Quek on 26 October 1990 in Probate No 1136/90.

Quek died on 14 April 1991. The question is whether the executors of Quek become ipso facto the executors and trustees of the testator. The testator bequeathed all her residuary estate to her trustees upon trusts for conversion and after payment thereout of debts, funeral and testamentary expenses, etc to invest the residue and to stand possessed of such investments upon trust as to both capital and income for such children of the testator living at her death who had attained the age of 21 years, if more than one, in equal shares.

Quek died after having filed the estate duty affidavit on 29 January 1991. The plaintiffs did not make any application in respect of the estate of the testator after Quek`s death on 14 April 1991. The plaintiffs, however, applied for probate in respect of Quek`s will. On 5 July 1991, probate was granted to the plaintiffs.

Letters of administration de bonis non

On 19 July 1991, the grant of letters of administration de bonis non with will annexed was granted to the defendants for the estate of Tsong Tse Yang, the husband of the testator.

Originating summons

On 6 September 1991, the plaintiffs applied by way of Originating Summons No 872/1991 for the following reliefs:

(a) A declaration that they are entitled to appoint themselves and/or other persons as trustees of the trusts of the will dated 17 March 1977 of Tsong Chong Yun Lai (deceased) in place of Quek Swee Leng, deceased.

(b) All real and personal property whatsoever and wheresoever now subject to the trusts of the said will which would be vested in the said Quek Swee Leng if still living, to be held by such trustees so appointed by the plaintiffs as such trustees upon the trusts of the said will.

(c) The right to sue for and recover the sums of moneys now standing to the credit of Tsong Chong Yun Lai (deceased).

(d) The right to sue for and recover the interest of Tsong Chong Yun Lai (deceased).

(e) The right to sue for and recover all jewellery, antiques and paintings.

(f) Be at liberty to make application as they may be advised.

On 12 September 1991 the first defendant by way of summons-in-chambers entered No P 278/91 applied for leave to be granted to her as beneficiary and daughter of the testator to apply for grant of letters of administration de bonis non with will annexed.

In her affidavit supporting the application, the first defendant said that she attended the office of the solicitor for the second defendant, LJ Wong Soh & Partners about August 1991 and requested that the second defendant and the first defendant should be substituted as administratrices of the estate of the testator. In the event that the second defendant, who was a resident in the United States was not agreeable, the first defendant offered to be the sole administratrix of the estate. The first defendant was advised against the substitution and told that the executors of the estate of Quek would automatically become the executors of the testator.

I dismissed the plaintiffs` application and ordered costs to be paid out of the estate. The defendants were given leave to proceed with the application for the grant of letters of administration de bonis non. The plaintiffs being dissatisfied with my decision have filed notice of appeal against the whole of my decision.

The testator`s will

The testator in her will gave pecuniary legacies free of duty to the first and second defendants of $5,000 subject to the payment of her just debts funeral and testamentary expenses and the pecuniary legacies. She gave all the real and residue of her property and estate to her husband provided he survived her. Clauses 5 to 9 of her will were to come into effect if the husband did not survive her. Clause 5 of the will reads:

I give all my real and personal property whatsoever and wheresoever (including any property over which I may have a general power of appointment or disposition by will) to my trustees upon trust to sell, call in and convert the same into money with power to postpone such sale calling in and conversion for so long as they shall in their absolute discretion think fit without being liable for loss.

Clause 6 provides for her trustees to pay her debts, funeral and testamentary expenses and legacies and all estate duty payable out of the moneys received from the sale calling in and conversion of or forming part of her estate in respect of the estate and to invest the residue of the moneys in any investments of a nature authorized and so on. Quek did not live long enough to call in the estate and distribute the same amongst the beneficiaries as directed by the will.

The grant of probate on 26 October 1990 to Quek under Probate No 1136 of 1990 was orally communicated to the first defendant around July, August 1991. Requests were made for the relevant court papers and other correspondence with the estate duties office. None were supplied by the solicitors.

After the death of Quek in April 1991, the first defendant was not contacted or told about her mother`s estate or kept informed on the steps that would be taken in respect of her mother`s will. The lack of communication and lack of interest was a matter of concern to the first defendant.

The first defendant wanted to be included in the administration of her mother`s estate. This was conveyed to the plaintiffs` solicitor by the first defendant`s solicitor by letter of 27 August 1991. The plaintiffs` response was in the following terms:

... We confirm that the sole executor of the will of Mdm Tsong Chong, Quek Swee Leng, has passed away. Nonetheless, as the executors of Mr Quek`s will become ipso facto executors of Mdm Tsong Chong`s will, it will not be necessary to apply for letters of administration de bonis non. We also act for the said executors.

The first defendant was requested to hand over all antiques and paintings to Quek`s executors and also to state when she intends to vacate the premises so that the executors could lease the premises at market value.

On 26 September 1991, the first defendant wrote to the solicitor for the plaintiffs in the following terms:

... We have been instructed by our client that you had obtained a court order for grant of probate in favour of the sole executor, Quek Swee Leng. However, we have been instructed that the latter has passed away and now it is necessary to obtain letters of administration de bonis non. Since our client was informed last week that the said petition has yet to be filed and we have been instructed by our client to confirm her intention (intimated by our client to Ms Wong at a meeting last week) to apply to court for herself to be appointed as administrator of the said estate solely or jointly with another beneficiary, Alice Tsong King Ying (for whom we understand you also act). Please let us have your comments urgently.

The letter gave an explanation about some of the jewellery of the deceased and informed the solicitor that some jewellery had been given to the first defendant by the testator prior to her death and that they were kept in two safe deposit boxes. The numbers of the deposit boxes were given. Further information on the assets were also provided.

A house divided

The first and second defendants met in 1969. After that the second defendant did not see the first defendant or visit her parents even though the parents were ill at different periods.

Quek, who was named one of two executors of the testator husband`s estate together with the testator, renounced the appointment. The testator, as one of the executors of her husband`s will was left to administer her husband`s estate as a sole executor. The first defendant`s assistance was required as the testator was not English speaking. The first defendant was the only person who could and did assist the testator. The second defendant was in the United States.

After the testator had passed away without fully administering her husband`s estate the first defendant`s solicitor wrote to the second defendant in May 1990, after the death of the testator, asking Alice to join the first defendant to apply jointly for letters of administration de bonis non with will annexed to her father`s estate. The second defendant appointed the firm of Messrs LJ Wong Soh & Partners to act for her in August 1990.

Various allegations have been made against the first defendant. She has denied exerting any influence or persuading Quek to renounce his rights as executor of the testator`s estate. If the first defendant had asked Quek whether he was interested to act as executor of her mother`s estate, it was only natural that she should do so after Quek had refused to accept the appointment as executor of her father`s will. Quek, however, told the first defendant that he was prepared to act as a sole executor and he was allowed to do so. The first defendant did not in any way stand in the way of Quek petitioning for probate.

The second defendant has alleged that she was kept in the dark by the first defendant. The second defendant had appointed a solicitor to act for her separately. It was therefore only natural and proper that the first defendant`s solicitor should communicate with the solicitor. The allegation of the second defendant is not supported by the evidence and is rejected.

The first defendant does not want to be the sole administratrix of either of her parents` estate. A letter was...