Lian Kok Hong v Lian Bee Leng and another

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 20 April 2016
• Neutral Citation: [2016] SGCA 24
• Date: 20 April 2016
• Docket Number: Civil Appeal No 155 of 2015
• Published date: 29 April 2016
• Plaintiff Counsel: Gopalan Raman and Ng Junyi (KhattarWong LLP)
• Hearing Date: 07 March 2016
• Defendant Counsel: Leo Cheng Suan and Teh Ee-Von (Infinitus Law Corporation)
• Court: Court of Appeal (Singapore)
• Subject Matter: Succession and Wills,Testamentary Capacity

Chan Sek Keong SJ (delivering the grounds of decision of the court): Introduction

This was an appeal against part of the decision of the High Court judge (“the Judge”) in Lian Kok Hong v Lian Bee Leng and another [2015] SGHC 205 which found that the late Lian Seng Peng (“the Testator”) did not know and approve of the contents of his last Will and Testament dated 10 August 2012 (“the August 2012 Will”) when he signed it in the presence of two witnesses.

The dispute between Lian Kok Hong (“the appellant”), who was the plaintiff before the Judge, and Lian Bee Leng and Wee Hui Ying (“the respondents”), who were the defendants, was which of the many wills executed by the Testator during the last few years of his life was his last will. The respondents had initially applied for probate in respect of an earlier will of the Testator dated 18 December 2010 (“the 18 December 2010 Will”). In their counterclaim, the respondents sought a declaration that the 18 December 2010 Will was the Testator’s true last will. The Judge held that the August 2012 Will was invalid and accordingly allowed the respondents’ counterclaim.

At the conclusion of the hearing, we allowed the appeal and gave brief grounds as follows:

(1) The Judge made a number of findings. These include findings as to the testator’s testamentary capacity and the fact that the August Will was a testamentary instrument. These findings were not appealed and they form the background against which the Judge’s finding on the testator’s knowledge is to be assessed.

(2) On this, the Judge invoked the doctrine of suspicious circumstances and listed several such circumstances. We will say more on this momentarily, but in our judgment nothing in the previous decisions of this court including our judgment in Muriel Chee allows the court to have regard to suspicious circumstances that go beyond the preparation and execution of the Will. To the extent the Judge looked at such other circumstances, we consider that she erred.

(3) The Judge found that the appellant had not proved that the testator knew the contents of the Will. We reverse the Judge on this narrow ground because (a) the August Will was based on a draft that had been written earlier by the testator in his own hand; and (b) the Judge found that the amendments to that draft had been explained to the testator.

Given these two facts and the Judge’s finding that the testator had testamentary capacity, we consider the Judge’s finding on knowledge cannot stand.

We return to the other suspicious circumstances identified by the Judge and in particular those that relate to the appellant’s conduct. In our judgment, these may go to the appellant’s suitability to be appointed as the executor and at the time the Will comes to be propounded, it is a matter for the respondents to decide whether they wish to raise this issue for the consideration and determination by the court.

We now give our detailed reasons for allowing the appeal.

Background The Testator, his family and the Estate

The Testator passed away at the age of 93 on 10 December 2012. Born in Longyan, China, he moved to Singapore at a young age. Nevertheless, he continued to maintain contact with his ancestral home, regularly making visits. Over the years, he also made charitable donations to his hometown, his relatives and friends. Mdm Soh Seat Hwa (“Mdm Soh”) is the widow of the Testator. They were married for 70 years. The Testator and Mdm Soh lived at 30 Jedburgh Gardens (“30 Jedburgh Gardens”) for many decades up till the time of his death.

The appellant is the only son of the Testator and Mdm Soh and the youngest of three siblings. He is married with two sons. His relationship with his mother and sisters towards the later years was less than cordial.

The first respondent is the second of the Testator’s children with Mdm Soh. She lives near 30 Jedburgh Gardens and was close to both parents. The second respondent is the Testator’s granddaughter by his first child, Mdm Lian Bee Tin (“Mdm Lian”). The Testator had six grandchildren, including the second respondent. The second respondent has three children, who are the only great-grandchildren of the Testator.

The bulk of the value of the Testator’s estate (“the Estate”) was in 30 Jedburgh Gardens. The Testator also held shares in Lian Seng Peng & Sons Pte Ltd (“LSPS”). The Testator, Mdm Soh, Mdm Lian, the first respondent and the appellant were equal shareholders, each with 20%, of LSPS.

Background to the dispute Documents prior to 2012

At around the age of 85 years, the Testator executed a will in 2004 (“the 2004 Will”), prepared by his solicitor, Mr Warren Tan, in which he bequeathed all his assets to his grandchildren. The reason why he chose to bequeath everything to the 6 grandchildren instead of the three children was because the appellant had mentioned that he might be facing a bankruptcy charge and his two sons would be facing financial difficulties.

In or around 2008, the Testator decided to amend his last will. In that year, he prepared and executed two typewritten documents in Chinese setting out his last wishes as to the disposition of his assets. It appeared that in his mind these were testamentary dispositions.

The first of these was a document with the heading “Will” in Chinese, signed by the Testator and dated 19 November 2008 (“the 19 November 2008 Will”). The execution of that will was only witnessed by one Mr Goh Tay Sin (“Mr Goh”), an employee of the appellant’s company Prime Products Pte Ltd (“Prime”), and therefore failed to fulfil the formal requirements for a will. The appellant said the Testator wrote out the 19 November 2008 Will and asked him to get one Mr Zhu Jintian (“Mr Zhu”), also an employee of Prime,¹ to type it out in Chinese. The 19 November 2008 Will was a typewritten form in Chinese of the handwritten document drawn up by the Testator.

According to the appellant, he subsequently learnt that for a will to be valid, it had to be witnessed by two people and that for that reason the 19 November 2008 Will was not valid in the eyes of the law. He then got Mr Zhu to type out in Chinese another will which had again been written by hand by the Testator. When it was ready, the will which was dated 24 November 2008 and again simply entitled “Will” in Chinese (“the 24 November 2008 Will”), was brought to the Testator who executed it. The 24 November 2008 Will appeared to be a modification of the 19 November 2008 Will, retaining many of the same terms with amendments made to the figures. After the Testator executed the will, the appellant took the will to his office and procured the signatures of Mr Goh and another employee as witnesses. He subsequently learnt from one of his lawyers, Mr Nair, that this was again ineffective to confer upon the document the status accorded to wills by law.

Under the terms of both 2008 wills, a significant amount of the Testator’s assets would be donated to “No 4 Middle School”, a school in the Testator’s hometown, as well as to various other charitable institutions in that town. Charitable dispositions were also made to this school in the August 2012 Will. Further, 30 Jedburgh Gardens would be bequeathed to the appellant’s sons upon the Testator’s and Mdm Soh’s passing. The 24 November 2008 Will also purported to revoke the 2004 Will.

In 2010, the Testator continued to draw up more wills, this time with the aid of solicitors. On 30 July 2010, the appellant brought the Testator to Mr Nair’s office where another will was executed in the presence of two witnesses (“the July 2010 Will”). Prior to this, the Testator had not spoken to Mr Nair. It was the appellant who was giving instructions to Mr Nair for the will. The July 2010 Will appointed the appellant as the sole executor of the Estate. Under the terms, 30 Jedburgh Gardens would be bequeathed to the appellant’s sons on condition that Mdm Soh was allowed to live in the property rent-free until her death. Monies liquidated from shares in listed companies and bank accounts would be distributed to the Testator’s grandchildren. The second respondent and her children would get a total of $16,000 while the other grandchildren would receive $10,000 each. The remainder of these monies would then be held on trust for the appellant’s sons. The Testator’s shares in LSPS, which was 20% of the share capital, would be given to the appellant with the remainder of his estate going to Mdm Soh. No provisions were made under that will for the first respondent and Mdm Lian nor were any provisions made for charitable donations. All former wills and testamentary dispositions were revoked by this will. It is obvious from these terms that the July 2010 Will was exceedingly favourable to the appellant and his family.

The first respondent says that in about September 2010, the Testator complained to her that the appellant had taken him to a law firm to make a fresh will and that he was not provided with a copy of the will. On 1 December 2010, the Testator signed a declaration purporting to revoke all prior wills he had made including the July 2010 Will. Mdm Soh was the sole witness to this declaration.

Two days later, on 3 December 2010, the Testator executed another will (“the 3 December 2010 Will”). This will was prepared by Mr Warren Tan who was one of the witnesses alongside Dr Liew Bee Leng (“Dr Liew”), the Testator’s family’s physician. Under the terms of this will, the respondents were to be the executrices of the Estate. 30 Jedburgh Gardens would be given absolutely to Mdm Soh and the remainder of the Estate would be held on trust for all six grandchildren in equal shares.

According to the first respondent, the day after the 3 December 2004 Will was executed, the Testator told her that the particular will was not clear since it did not specify who would inherit 30 Jedburgh Gardens if Mdm Soh predeceased him. At the same time, the Testator also...