Letchimy d/o Palanisamy Nadasan Majeed (alias Khadijah Nadasan) v Maha Devi d/o Palanisamy Nadasan (administrator of the estate of Devi d/o Gurusamy, deceased)

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 29 June 2020
• Neutral Citation: [2020] SGHC 132
• Court: High Court (Singapore)
• Docket Number: Suit No 1294 of 2018
• Published date: 03 July 2020
• Year: 2020
• Hearing Date: 28 January 2020,04 February 2020,31 January 2020,05 February 2020,13 February 2020,29 June 2020,29 January 2020,07 February 2020,12 February 2020,03 February 2020,06 February 2020
• Plaintiff Counsel: Tan Wen Cheng Adrian and Low Zhi Yu Janus (August Law Corporation)
• Defendant Counsel: K Mathialahan (Guna & Associates)
• Subject Matter: Equity,Estoppel,Proprietary estoppel,Civil Procedure,Pleadings,Probate And Administration,Intestate succession
• Citation: [2020] SGHC 132

Tan Siong Thye J (delivering the judgment of the court ex tempore): Introduction

This Suit centres around the distribution of a Housing and Development Board (“HDB”) flat at Block 18 Bedok South Road #11-81 Singapore 460018 (the “Property”). The Property was owned solely by Devi d/o N Gurusamy (the “deceased”) until her unfortunate and sudden death on 17 October 2017. The deceased is survived by six children (the “Siblings”), including the plaintiff and the defendant. The deceased had passed away intestate as she did not have a will. The assets belonging to the deceased’s estate were distributed in equal shares to her beneficiaries, save for the Property that is in dispute.

The plaintiff seeks for the Property to be transferred to her sole name or, in the alternative, for the value of the Property as the deceased had represented to her that the plaintiff was to inherit the Property upon her demise (the “representation”). The defendant, on the other hand, argues that the Property should be sold and the proceeds of sale be distributed equally to the beneficiaries of the deceased’s estate, including the plaintiff, as that was what the deceased had wanted. The defendant further asserts that there is no will and, thus, the Property has to be distributed in accordance with the Intestate Succession Act (Cap 146, 2013 Rev Ed) (the “ISA”). The defendant was granted letters of administration and she is the administrator of the deceased’s estate.

My decision The issues

These are the issues for my consideration: Has the plaintiff pleaded proprietary estoppel? Can proprietary estoppel override the ISA? Can the representation, assuming it is true, constitute a valid representation under the principle of proprietary estoppel? Did the deceased make the representation to the plaintiff? Can the court accept the testimonies of the plaintiff’s three witnesses? Did the plaintiff rely on the representation and act to her detriment?

Has the plaintiff pleaded proprietary estoppel?

I note at the outset that the defendant raises an objection that the plaintiff “did not plead the remedy of estoppel in her Statement of Claim or Reply”,¹ thereby putting the defendant at a “disadvantage and prejudiced as a result”.² Although I had made similar observations during the hearings, the plaintiff did not seek to amend the pleadings.

In this regard, the observations of the Court of Appeal in V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another [2015] 5 SLR 1422 at [43]–[44] are relevant: 43 The Judge was of the view that the words ‘proprietary estoppel’ did not have to be specifically pleaded. We agree, except that if such a cause of action is to be relied on, the pleadings should at the very least disclose the material facts which would support such a claim, so as to give the opponent fair notice of the substance of such a case, especially in a claim based on proprietary estoppel. In Chng Bee Kheng v Chng Eng Chye [2013] 2 SLR 715, Chan Seng Onn J said at [94] as follows:

Even though Mr Yeo did not object to this defect in pleading and proceeded to submit on the basis that the Defendant’s case was founded on estoppel by representation, promissory estoppel, proprietary estoppel and estoppel by convention, I am of the view that the Defendant has to plead his case accurately. The different types of estoppel may have similar undertones, but, as will be seen below, their constituent elements are dissimilar, and the facts relevant to the elements would accordingly differ and must be pleaded specifically. For instance, while Mr Bull argued that there was promissory estoppel, he described the alleged ‘promises’ as ‘representations’. There is a distinction between the two as a representation refers to a representation of fact and is not promissory in nature.

44 Accordingly, proprietary estoppel should be pleaded expressly and the facts relevant to each element should be pleaded specifically. The defendant should not be left to guess at what the plaintiff was really asserting. This is particularly important in an area of law where there are fine distinctions between a purchase money resulting trust, a common intention constructive trust, promissory estoppel and proprietary estoppel. …

[emphasis in original in italics; emphasis added in bold italics]

The plaintiff’s Statement of Claim (Amendment No 1) (“SOC”) included various references to “representations”, “reliance” and “detriment”.³ However, she has failed to expressly plead estoppel in her SOC, much less proprietary estoppel. It is unsatisfactory that in the course of the proceedings the plaintiff’s counsel was alerted that the SOC did not expressly plead proprietary estoppel and yet, he chose not to amend the SOC as he submitted that the SOC had pleaded proprietary estoppel. The defendant’s Defence (Amendment No 2) rebutted the SOC on a factual basis and did not address the proprietary estoppel as it was not apparent to the defendant that the plaintiff was pursuing her claim based on proprietary estoppel. With respect, I disagree with the plaintiff’s counsel as the SOC did not expressly state that the plaintiff was pursuing her claim based on proprietary estoppel and not an oral will. Thus, the defendant was prejudiced. Therefore, the plaintiff should not be allowed to pursue her claim based on proprietary estoppel. As proprietary estoppel is the central and only plank of the plaintiff’s claim and an oral will is unenforceable, this Suit is dismissed on this ground alone.

Nevertheless, on the assumption that the SOC discloses proprietary estoppel, I shall deal with the relevant issues.

Can proprietary estoppel override the ISA?

It is not disputed that the deceased left no will and, therefore, the deceased’s estate, including the Property, will have to be distributed in accordance with the ISA. Section 7 Rule 3 of the ISA reads:

Subject to the rights of the surviving spouse, if any, the estate (both as to the undistributed portion and the reversionary interest) of an intestate who leaves issue shall be distributed by equal portions per stirpes to and amongst the children of the person dying intestate and such persons as legally represent those children, in case any of those children be then dead.

Hence, the Property will have to be distributed equally amongst the beneficiaries of the deceased, including the plaintiff and the defendant, and for those two children who had died their shares will be given to their respective estates.

The plaintiff claims that the deceased told her orally that she would give her the Property upon her demise. This may suggest that an oral will was made. However, the Wills Act (Cap 352, 1996 Rev Ed) (the “Wills Act”) clearly sets out the formalities required for a will to be valid. Generally, reference can be had to s 6 of the Wills Act, which provides: 6.—(1) No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2). (2) Every will shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and the signature shall be made or acknowledged by the testator as the signature to his will or codicil in the presence of two or more witnesses present at the same time, and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.

…

Thus, the oral will is invalid and not recognised under the law. In the present circumstances, the absence of a will would result in the Property being distributed in accordance with the ISA. As stated by Lee Seiu Kin J in Tan Pwee Eng v Tan Pwee Hwa [2011] 1 SLR 113 at [15]:

… The formalities required of a valid will are clearly set out in the Wills Act. If those formalities are not met, and unless the testator falls within any statutory exception, the will is not valid. … There may well be circumstances in which the requirements of the Wills Act prevent the disposal of the estate of a deceased person in accordance with his or her last wishes. However the problem lies in ascertaining what exactly are those last wishes and the legislature has taken the position that obtains in the Wills Act. This policy has been in force for a very long time, the primary objective of which is to guard against fraud. In so far as this may be said to operate harshly at times, I would state that any such possibility may, to some extent, be ameliorated by the Intestate Succession Act (Cap 146, 1985 Rev Ed) which provides for distribution to the children or other relatives of a person who dies intestate as a result of the invalidity of his will.

This is the legal position and would have been the end of the matter. Cognizant of this, the plaintiff seeks to circumvent the application of the ISA by creatively arguing that she is entitled to the Property, or its value, based on proprietary estoppel. In this respect, the starting point is that the ISA does not expressly or impliedly state it is subject to proprietary estoppel. As such, proprietary estoppel cannot override the ISA, for as stated by Tan Lee Meng J in Joshua Steven v Joshua Deborah Steven and others [2004] 4 SLR(R) 403 at [15]:

… it is trite that a party cannot rely on estoppel in defiance of a statute. In Kok Hoong v Leong Cheong Kweng Mines, Ltd [1964] 1 All ER 300 at 305, Viscount Radcliffe explained that there are: … rules that preclude a court from allowing an estoppel, if to do so would be to act in the face of a statute and to give recognition through the admission of one of the parties to a state of affairs which the law has positively declared not to subsist.

…

In the circumstances, the proprietary estoppel, which is a common law equitable remedy, cannot override the ISA, which is the applicable law in Singapore.

However, a claim founded on proprietary...