Leo Teng Choy v Leo Teng Kit and Others

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 17 November 2000
• Neutral Citation: [2000] SGCA 63
• Citation: [2000] SGCA 63
• Defendant Counsel: Molly Lim SC and Lim Chee Kiang (Lim & Ching)
• Plaintiff Counsel: Harry Elias SC and Kesavan Nair (Harry Elias Partnership)
• Published date: 19 September 2003
• Docket Number: Civil Appeal No 26 of 2000
• Date: 17 November 2000
• Subject Matter: Whether s 56(1) Trustees Act (Cap 337) conferred powers on trustees,Principles of construction of wills,Whether s 56(1) subject to s 2(2)- Whether court should invoke s 56(1) to authorise sale,Succession and Wills,Whether sale expedient and consonant with overriding intention of testator,Whether ordinary trust or trust for sale created,Construction,Whether interest of beneficiaries contingent in nature,Powers,ss 2(2) & 56(1) Trustees Act (Cap 337),Trustees,Trusts

(delivering the judgment of the court): Introduction

This is an appeal against the decision of Lai Siu Chiu J, on the construction of a Will, where she authorised the sale of a property of a testator located at No 42 Phillips Avenue (`the property`).

The facts

The testator was one Leo Ann Peng (LAP). LAP made his Will on 26 March 1970 and died some 19 years later on 28 September 1989. He left behind his widow and five sons. Four sons are involved in this proceeding but not the fifth (the eldest), as the latter was given only $1 under the Will. In his Will, LAP appointed two sons, Leo Teng Kit (the first respondent) and Leo Teng Choy (the appellant) to be his trustees.

LAP purchased the property in 1956. He resided there until his death. The property was his only substantial asset. During much of his lifetime, the family lived together at the property, but as the sons grew up and got married and due to overcrowding, one son, Leoh Teng Hee (the second respondent) and his wife moved out of the family home in 1980 and have since lived on their own.

Sometime in 1992, the first respondent and his family moved out of the property. In September 1992, LAP`s widow, who was also the children`s mother, Heng Took Kin, suffered a stroke and was hospitalised. It would appear that after Mdm Heng`s discharge, the appellant refused to take her back. Instead, she went to live with the second respondent. Another son, Leo Tang Foh (the third respondent) moved out of the property in about the same year, leaving the appellant (together with his wife and children) in sole occupation.

In December 1996, the first respondent visited the property and found that the appellant had thrown away all the furniture and belongings of the respondents and their mother, which were at the property. The appellant said he threw them away because they were infested with termites. A survey report was furnished in support thereof. In view of the fact that everybody had moved out except the appellant, the first respondent tried to sort out with the appellant on how to deal with the property, without success.

Eventually, the three respondents decided, together with their mother, that the best course would be to sell the property and to distribute the proceeds equally between the four sons (the appellant and the three respondents). Thus, in April 1999 the respondents filed an originating summons for an order to sell the property. The respondents also filed a statutory declaration, made by their mother about two years earlier on 5 July 1997, in support of their application. At the time the mother made the statutory declaration, she was examined by a consultant psychiatrist who certified that she was mentally fit to make the declaration. On 7 July 1999, the mother passed away.

The statutory declaration was made by the mother in anticipation that litigation would ensue between the four sons. In it she confirmed the allegations made by the first respondent that the appellant had a violent temper and a violent disposition towards his brothers and their families.

On 15 February 2000, after hearing arguments and considering the affidavits filed by the parties, the judge below ordered that the property be sold at a price of not less than $3.75m and that the proceeds were to be divided equally between the four brothers. In coming to her decision, Lai Siu Chiu J held that the Will created a trust for sale of the property and that cl 3 merely postponed the sale.

The clauses in the Will which are pertinent to the present proceeding are the following:

2 I give and devise my land and house No 42, Phillips Avenue, Singapore unto my trustees upon trust to stand possessed of the same and to allow my wife Heng Took Kin and my sons Leo Teng Kit, Leoh Teng Hee, Leo Teng Choy and Leo Tang Foh to reside therein free of rent provided each of my said sons shall pay one-fourth share of all rates, taxes, charges and expenses on repairs as shall from time to time be incurred.

3 I direct that my said land and house No 42 Phillips Avenue, Singapore, shall not be sold, rented out or in any way converted into cash unless and until unanimously agreed upon by my said sons Leo Teng Kit, Leo Teng Hee, Leo Teng Choy and Leo Tang Foh in which event the net proceeds of sale from the said land and house shall be distributed to my said sons in equal shares.

4 In the event of the death of any of my aforesaid sons either before my death or after my death but before the said land and house is sold his share shall be divided among his children in equal shares and if there be no children his share shall revert to the surviving beneficiaries in equal shares.

...

6 Subject to the payment of my debts, funeral and testamentary expenses, I devise and bequeath all the residue and remainder of my real and personal estate whatsoever and wheresoever situate to my said sons, Leo Teng Kit, Leoh Teng Hee, Leo Teng Choy and Leo Tang Foh in equal shares absolutely.

The appeal

The appellant is dissatisfied with the order made on 15 February 2000 and has therefore appealed to this court. He challenged the ruling of the court below that there is here a trust for sale. His contention is that there could be no sale until and unless all the four beneficiaries agreed. Each of the four...