Lian Kok Hong v Lian Bee Leng and another

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 05 August 2015
• Neutral Citation: [2015] SGHC 205
• Court: High Court (Singapore)
• Docket Number: Suit No 306 of 2014
• Published date: 29 April 2016
• Year: 2015
• Hearing Date: 12 March 2015,20 January 2015,22 January 2015,28 January 2015,21 January 2015,27 January 2015,23 January 2015
• Plaintiff Counsel: Gopalan Raman and Ng Junyi (KhattarWong LLP)
• Defendant Counsel: Leo Cheng Suan and Teh Ee-Von (Infinitus Law Corporation)
• Subject Matter: Succession and Wills,formation of wills,requirements for formal validity,testamentary capacity
• Citation: [2015] SGHC 205

Judith Prakash J: Introduction

This suit relates to the estate (“the Estate”) of the late Mr Lian Seng Peng (“the Testator”) and arises from an embarrassment of riches in the area of testamentary dispositions executed by him.

On 21 May 2013, the defendants applied to court for a Grant of Probate in respect of the Testator’s will dated 18 December 2010 (“the 18 December 2010 Will”). On 2 August 2013, the plaintiff filed a caveat against the defendants’ application for the grant of probate. Subsequently, on 16 December 2013, the plaintiff filed a Citation against the defendants stating that he held the Testator’s last Will and Testament dated 10 August 2012 (“the August 2012 Will”) and that the 18 December 2010 Will had been revoked under the terms of the August 2012 Will. The plaintiff then commenced this action against the defendants seeking to propound the August 2012 Will.

The Background The Testator and his family

The Testator was born in Longyan, China. He moved to Singapore at a young age but kept in contact with Longyan, frequently visiting and making donations to organisations in his hometown as well as giving money to his friends and relatives there. By all accounts, he was a generous man, a loving husband and a caring father who was liked by everyone around him. He passed away on 10 December 2012 at the age of 93.

Mdm Soh Seat Hwa (“Mdm Soh”) is the widow of the Testator. They were married for 70 years. For decades prior to his death, the Testator and Mdm Soh resided at 30 Jedburgh Gardens (“30 Jedburgh”), the property which forms the bulk of the Estate and which Mdm Soh continues to reside in to this day.

The Testator had acquired 30 Jedburgh sometime in the 1970s. Apparently, he did not take a loan for the purchase and the property was mortgage-free until many years later when he mortgaged it to secure a bank loan given to the plaintiff or his business. This mortgage, in the principal amount of $1.5m, remained registered against 30 Jedburgh until 2014 when the plaintiff paid off the loan.

The plaintiff is the only son of the Testator and the youngest of the Testator’s three children. He runs Prime Products Pte Ltd (“Prime”), a business that he started in 1986 with the assistance of the Testator. The Testator was a director of Prime, though he was not involved in the day-to-day running of the business. The plaintiff is married and has two sons. He and his family live some distance away from 30 Jedburgh but the plaintiff visited his father regularly, at least once a week. In the later years, however, he was not on cordial terms with his mother and sisters.

The first defendant is the older sister of the plaintiff and is the second of the Testator’s children. She lives a few doors away from 30 Jedburgh and was close to both parents, spending much time taking care of them. The second defendant is the Testator’s granddaughter by his elder daughter, Mdm Lian Bee Tin (“Mdm Lian”). In total, the Testator had six grandchildren and three great-grandchildren (all of whom are the second defendant’s children).

Prior to 10 December 2012, the Testator, Mdm Soh, the plaintiff, Mdm Lian and the first defendant were equal shareholders of Lian Seng Peng & Sons Pte Ltd (“LSPS”), a company which the Testator started in 1978. LSPS is currently disposing of its assets and when this is done it will be wound up.

Background to the dispute The testamentary documents and the Testator’s health

The August 2012 Will is one of a series of testamentary documents that the Testator wrote in Chinese in 2012. I am using the word “testamentary” to indicate the Testator’s apparent intentions in drafting these documents but I must point out that most of them were not executed in the manner required to make them valid wills and some of them were not even signed by the Testator himself.

As the August 2012 Will is at the core of this dispute, I set out its terms (post-amendment, as translated) in full below:

Former will[s] made by the lawyer[s] and so on are revoked.

According to the new will, [the proceeds] from the sale of stocks and so on and the (after the winding up of the company) $780,000 owed by Kok Hong shall be distributed to the paternal and maternal grandsons and granddaughters who shall each get $100,000; total $600,000. After our death as husband and wife, the proceeds from the sale of the house at No. 30 and all the cash shall constitute the Lian Seng Peng & Soh Seat Hwa Charity Fund from which $1 million shall be donated to Tong Chai Medical Institution. RMB 5 million shall be remitted to my hometown and donated to No. 4 Middle School of Xinluo District for extension of the school and to provide financial assistance.

200,000 ([unintelligible]) shall be donated to poor overseas Chinese returnees in Xinluo District.

A large television set and a CD player shall be donated.

RMB 200,000 shall be donated to the Shexing Village Activity Centre for the Elderly.

RMB 200,000 shall be donated to the welfare house for disabled children.

Do not hold religious rituals after my death.

The cremated remains are to be scattered into the ocean. The aforesaid matters and matters not set out above shall all be handled by Kok Hong.

It should be noted that prior to the amendment, this will gave $50,000 to each of the great-grandchildren.

The plaintiff submits, and this is not disputed by the defendants, that the last sentence appoints the plaintiff as the executor of the will notwithstanding that the word “executor” is not expressly used. The plaintiff’s submission is based on a passage from John Ross Martyn and Nicholas Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 19th Ed, 2008) (“Williams on Probate”) at p 32, to the effect that if a testator by any word or description commits to any particular person the rights appertaining to an executor it is the same as if that person was expressly appointed as executor even though that word is not used. As the defendants do not dispute that in this will the Testator intended to appoint the plaintiff as executor (on the contrary, they rely on such appointment as evidence of the irrationality of the will), I agree that the August 2012 Will should be treated as if it nominates the plaintiff as sole executor of the Estate.

The date of the will was originally stated to be 10 June 2012 but on 10 August 2012 the date was amended to 10 August 2012. The Testator’s signature lies next to the amendment (“the First Signature”), and another of the Testator’s signatures (in different ink) lies below it (“the Second Signature”).

The testamentary documents made before 2012

A number of documents expressing the Testator’s testamentary intentions were executed by him prior to 2012. The earliest of these documents was made by the Testator in 2004 (“the 2004 Will”). This was prepared by his then solicitor, Mr Warren Tan Poh Meng from M/s Warren Tan & Co (“Mr Tan”), and was executed by the Testator in 30 Jedburgh in the presence of two witnesses. I am told that under the 2004 Will, the Testator bequeathed all of his assets to his grandchildren, leaving nothing to his children. No copy of the 2004 Will was tendered to the court. It was not denied by the plaintiff that he demanded to see the 2004 Will sometime in 2008. He went to 30 Jedburgh and took away the 2004 Will, only returning it to the Testator after the latter had insisted on its return.

The next document that was brought to the court’s attention was dated 19 November 2008 (“the 19 November 2008 Will”). The 19 November 2008 Will was not prepared by lawyers and its execution was witnessed solely by one Mr Goh Tay Sin (“Mr Goh”), an employee of Prime. It therefore failed to fulfil the formal requirements for a will. According to the plaintiff, the Testator wrote out the 19 November 2008 Will and asked him to get one Mr Zhu Jintian (“Mr Zhu”) to type it out in Mandarin. It was the typewritten version of the will that was subsequently executed. The 19 November 2008 Will was, apparently, the first time that the plaintiff became involved in the Testator’s testamentary activities.

The plaintiff said that he subsequently realised that a will was supposed to be witnessed by two witnesses and that therefore the 19 November 2008 Will was not valid. He then asked Mr Zhu to type out another will which had been handwritten by the Testator. When it was ready he took it to the Testator who signed it. This will was dated 24 November 2008 (“the 24 November 2008 Will”). The 24 November 2008 Will appears to be a modification of the 19 November 2008 Will, retaining many of the same terms (albeit with amendments as to the figures). After the Testator signed it, the plaintiff took the will to his office and procured the signatures of Mr Goh and another employee as witnesses. Nevertheless, as the plaintiff later learnt from one of his lawyers, Mr Nair of Messrs Derrick Wong & Lim BC LLP, this was not a valid will as the witnesses were not present at the time it was executed by the Testator.

Under the terms of both the 19 November 2008 Will and the 24 November 2008 Will, a substantial amount (between 35% and 57%) of the Testator’s assets would be donated to “No 4 Middle School”, a school in his hometown (“No 4 Middle School”), as well as to various charitable institutions in that town. 30 Jedburgh would be bequeathed to the plaintiff’s sons upon the Testator’s and Mdm Soh’s passing. The 24 November 2008 Will purported to revoke the 2004 Will.

On 30 July 2010, the plaintiff took the Testator to Mr Nair’s office, where the Testator executed another will (“the July 2010 Will”) prepared by Mr Nair. It should be noted that prior to this date, the Testator had not spoken with Mr Nair and the instructions for the will had been given to the lawyer by the plaintiff. Under the terms of this will, the plaintiff would be appointed the sole executor of the Testator’s...