Low Ah Cheow and Others v Ng Hock Guan (personally and as executor/trustee of the estate of Ng Teow Yhee, deceased)

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 22 November 2007
• Neutral Citation: [2007] SGHC 200
• Court: High Court (Singapore)
• Year: 2007
• Published date: 27 December 2007
• Plaintiff Counsel: Andre Arul (Arul Chew & Partners) and Chung Ping Shen (H A & Chung Partnership)
• Defendant Counsel: Ling Tien Wah and Koh Jiaying (Rodyk & Davidson)
• Subject Matter: Trusts,Secret trusts,Testator willed entire estate to defendant,Whether claimants discharged burden of proving existence of secret trust
• Citation: [2007] SGHC 200

22 November 2007 Judgment reserved.

Woo Bih Li J

Introduction

This action is a claim by certain members of the family of the late Ng Teow Yhee (“Mr Ng”) against one of his sons Ng Hock Guan also known as Sebastian (“Sebastian”) who is sued in his capacity as executor and trustee of the estate of Mr Ng and in Sebastian’s personal capacity. The reliefs sought are in respect of specific gifts which Mr Ng is alleged to have made and which I shall elaborate on later.

Background

2 Mr Ng was the patriarch of the Ng family. He built up his fortune in the shipping and stevedoring business and founded two family companies in Singapore. They are Ng Teow Yhee & Sons Holding Pte Ltd (“the holding company”) and Ng Teow Yhee & Sons (Singapore) Pte Ltd (“the subsidiary). The subsidiary is the operating arm of the family business.

3 I set out below some particulars of Mr Ng’s immediate family members:

	Name	Date of Birth	Relationship
(a)	Low Ah Cheow (“Mdm Low”)	In or about 1924	Wife
(b)	Ng Khim Guan (“Ricky”)	11 Sept 1948	Son
(c)	Ng Cheng Chuan (“Sunny”)	03 Dec 1951	Son
(d)	Ng Peck Eng (“Calista”)	04 Aug 1954	Daughter
(e)	Ng Bee Eng (“Angeline”)	22 Mar 1956	Daughter
(f)	Sebastian	01 Apr 1957	Son
(g)	Ng Gui Eng (“Jenny”)	09 Jul 1959	Daughter
(h)	Ng Ah Luan (“Edwina”)	07 Jul 1962	Daughter
(i)	Ng Puay Guan (“Raymond”)	05 Dec 1966	Son

4 Mr Ng executed a Will on 27 November 2000. He passed away on 12 April 2001 at the age of 80. This action was filed almost five years later on 20 February 2006. Sebastian was appointed under the Will as the sole executor and trustee of the Will. The alternate executor and trustee appointed was his wife, Ho Soh Peng also known as Irene. I set out below clause 2 of the Will:

I GIVE DEVISE AND BEQUEATH all my property of whatsoever nature and wheresoever situate (including any property over which I may have a power of appointment or disposition by will) to my Trustee:-

(i) to sell call in and convert into money all such parts of the same as shall not consist of money but so that my Trustee shall have full power to postpone the sale calling in and conversion for so long as he or she shall in his or her absolute discretion think fit without being liable for loss occasioned thereby;

(ii) out of the net moneys arising from such calling in and conversion and any ready money belonging to me at my death to make payment of my debts funeral and testamentary expenses including all estate duty and other taxes or duties payable on or by reason of my death in respect of my estate; and

(iii) to hold the net proceeds of such sale calling in and conversion and any ready money belonging to me at my death and any property comprised in my estate for the time being remaining unconverted and after any payment thereout mentioned in Clause 2(ii) above (hereinafter called my “Residuary Estate”) ON TRUST to be distributed to NG HOCK GUAN (Singapore NRIC No. S1260305/C).

5 The plaintiffs based their claims on the doctrine of secret trusts. Their specific claims are as follows:

(a) Mdm Low is the first plaintiff claiming the property known as 1A Wiltshire Road (“1A Wiltshire”) and 186,740 shares of Mr Ng in the holding company.

(b) Raymond is the second plaintiff claiming $200,000 for himself.

(c) Raymond is also claiming for his two sons, Ng Zhi Kai and Ng Zhi Hao $100,000 each. Ng Zhi Kai’s name appears in the heading of some of the cause papers as the fifth plaintiff whereas Ng Zhi Hao’s name does not appear in the heading as a plaintiff. This is probably due to inadvertence by the plaintiffs’ solicitors when they amended the Writ of Summons to include more plaintiffs. The substance of the Statement of Claim (Amendment No 4) (‘the statement of claim”) discloses the claim for Ng Zhi Hao as well and it is not disputed that in substance, he is also a plaintiff.

(d) Angeline is the third plaintiff claiming $90,000 and 33,320 of Mr Ng’s shares in the holding company. She claimed that part of the $90,000 was a sum of $40,000 being a refund of money she had given Mr Ng over the years.

(e) Sunny’s son, Ng Jian Wen, is the fourth plaintiff claiming $300,000 through his parents, Sunny and Mdm Chou Li Lan.

6 The requirements for the existence of a secret or half-secret trust are stated in Kamla Lal Hiranand v Harilela Padma Hari [2000] 3 SLR 709 at [31] as follows:

31 The essentials of the existence of a secret or half-secret trust created by the operation of equitable principles are these:

(a) an intention of the deceased to benefit a secret beneficiary;

(b) communication of the trust to the beneficiary/trustees;

(c) express or tacit acceptance of the trust by the beneficiary/trustee, thereby inducing the testator not to execute a will or leave a will already executed unrevoked or not to draw up a will.

See Snell’s Equity (29th Ed, 1990) at p 109; Pettit, Equity and the Law of Trusts (7th Ed, 1993) at p 125, Blackwell v Blackwell [1929] AC 318 at pp 334 and 341, Ottaway v Norman [1972] Ch 698 at 711A-C …

7 There was disagreement between the parties as to whether the inducement of the testator is a separate and fourth requirement or will be implied once his intention is communicated to and accepted by the beneficiary/trustee. That argument was immaterial for present purposes and I need say no more about it.

8 I would add that for the plaintiffs to succeed, the evidence must also show that Mr Ng intended to impose a binding and not merely a moral obligation on Sebastian, see The Encyclopaedia of Forms and Precedents Fifth Edition 2003 Reissue Volume 42(1) at [25], a point which was illustrated in Re Snowden (deceased) [1979] 2 All ER 172. On the facts in that case, the court found that the testatrix did not intend the sanction to be the authority of a court of justice but the conscience of her brother who was the sole beneficiary.

9 I should also say something about the distinction between fully secret trusts and half-secret trusts as there was a claim based on the doctrine of half-secret trusts as well. Halsbury’s Laws of Singapore Volume 9(2) Equity and Trusts 2003 Edition states at [110.565]:

… A fully secret trust arises where a testator gives property to a person apparently beneficially, but has communicated to that person during his lifetime certain trusts on which the property is to be held. A half secret trust which will be enforced by the court arises where the fact that the property is given to the legatee upon trust is mentioned in the will but the trusts are not defined by the will.

10 As can be seen, clause 2(iii) of the Will stated that the residuary estate was to be held on trust to be distributed to Sebastian. That provision did not say explicitly that the residuary estate was to be distributed to Sebastian “beneficially” but it is clear to me that that is the correct interpretation. Furthermore, while paragraphs 6 and 8 of the statement of claim relied on half-secret trusts, paragraphs 6 and 118 of the plaintiffs’ closing submissions (“PCS”) stated that the plaintiffs were relying on secret trusts and not half-secret trusts. Even then, paragraph 278 of PCS appeared to retain the spectre of half-secret trusts by stating:

278. The Plaintiffs submit as follows:-

a) The Will specifically refers to the Defendant as a “Trustee”;

b) The Will specifically refers to the Estate being given to the Defendant “ON TRUST”;

c) The Will does not refer to the Defendant as being a beneficiary of the Estate or being beneficially entitled

to any part of the Estate.

11 It seems to me that the author of PCS had forgotten that he had abandoned the half-secret trusts argument. In any event, I reiterate that I find that Sebastian was given the entire residuary estate beneficially under the Will.

12 I should also mention that Sebastian did not seek to preclude the admission of evidence about secret trusts under s 94 of the Evidence Act (Cap 97). Presumably, this was because of s 102 of the Evidence Act which states that, “Nothing in sections 93 to 101 shall affect the construction of wills”.

13 Paragraph 7 of the statement of claim contained the primary allegation about the trusts. The opening paragraph stated:

The Plaintiffs contend that the Deceased communicated his intention to create the trusts and the terms of the trusts with the Defendant prior to the execution of the Will on 27 November 2000. The Plaintiffs further contend that the Defendant had either expressly and/or impliedly by his words and/or conduct accepted and/or assented to act as the trustee and/or agreed to carry out the Deceased’s aforementioned intentions upon his death.

[emphasis added]

14 As can be seen, this allegation clearly stated that Mr Ng had communicated his intention to create the trusts prior to the execution of the Will on 27 November 2000. Therefore, although in law, the communication of secret trusts to the trustee can be before or after a testator has executed his Will, the plaintiffs are bound by their pleadings. It is not open to them to assert in submissions, as they tried to do, that they can also establish that Mr Ng’s communication to Sebastian was done after the execution of the Will.

15 As can also be seen, the opening paragraph of the said paragraph 7 did not clearly assert when Sebastian had accepted or asserted or agreed to carry out the trusts. Such was the state of the pleadings. Read in context, in the absence of words to the contrary, I am of the view that the correct interpretation of the allegation is that Sebastian’s acceptance, assent or agreement was also prior to the execution of the Will and not after. The contra proferentem rule would reinforce this view. Even if it was open to the plaintiffs to assert that Sebastian’s acceptance, assent or agreement was signified after the execution of the Will, this will not assist the plaintiffs much as I will elaborate below when I deal with the evidence.

16 The said paragraph 7 also...