Low Ah Cheow and Others v Ng Hock Guan

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 24 June 2009
• Neutral Citation: [2009] SGCA 25
• Date: 24 June 2009
• Subject Matter: Sole trustee appointed sole beneficiary,Ambiguity leading to irrational and capricious result,Whether trust valid,Whether legal difficulties in terms purporting to create testamentary trust presented ambiguity in interpretation of will,Consideration of extrinsic evidence,Construction,Testamentary trust,Alternative interpretation leading to fair, rational and reasonable disposition and distribution of estate preferred,Testator's intention as expressed on face of will,Succession and Wills
• Docket Number: Civil Appeal No 150 of 2007 (Summonses Nos 2086 and 2792 of 2008)
• Published date: 01 July 2009
• Defendant Counsel: Ling Tien Wah and Koh Jiaying (Rodyk & Davidson LLP)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Lim Joo Toon and Joseph Tan (Joo Toon & Co)

24 June 2009 Judgment reserved.

V K Rajah JA (delivering the judgment of the court):

Introduction

1 This appeal centres on the construction of the will of the late Ng Teow Yhee (“the Testator”). The trial judge (“the Judge”) held that the appellants had not proved that the Testator’s residuary estate (“the Estate”) was subject to secret trusts in their favour (see Low Ah Cheow v Ng Hock Guan [2007] SGHC 200 (“the Judgment”)). He was of the view that, under the terms of the Testator’s will (“the Will”), the whole of the Estate had been left to the respondent, Ng Hock Guan (“Sebastian”), absolutely for his sole benefit (see especially [11] and [194] of the Judgment). The appellants then filed the present appeal against the Judge’s decision.

Background facts

2 The Testator, the patriarch of the Ng family, amassed his fortune in the shipping and stevedoring business over several decades. He passed away on 12 April 2001 at the age of 80, succumbing ultimately to cancer. On 27 November 2000, approximately four and a half months prior to his death, the Testator executed the Will appointing Sebastian, his third son, as his sole executor and trustee. Ex facie, by the Will, the Testator gave the whole of the Estate to Sebastian “ON TRUST to be distributed to” [emphasis added; underlining in original] (see cl 2(iii) of the Will (reproduced at [3] below)) Sebastian himself. The Testator also appointed Sebastian’s wife, Mdm Ho Soh Peng (“Mdm Ho”), as the executrix in the event that Sebastian could not act as the executor. Alan Lee Soo Yuen (“Alan Lee”), the solicitor who took instructions from the Testator on the drafting of the Will, and one Lua Cheng Eng (“Lua”) witnessed the execution of the Will.

3 The Will reads as follows:

I, NG TEOW YHEE (NRIC No. S0583304/C) of 1A Wiltshire Road, Singapore 466377 HEREBY REVOKE all former wills and testamentary dispositions made by me and declare this to be my last Will.

1. I APPOINT [SEBASTIAN] (Singapore NRIC No. S1260305/C) (hereinafter called “my Trustee” which expression shall, where … the context permits, include the trustee or trustees for the time being hereof, whether original, substituted or additional) to be the executor and trustee of this my Will. In the event that [Sebastian] predeceases me or for any reason whatsoever shall be unable to act as executor and trustee as aforesaid then I appoint [MDM HO] (Singapore NRIC No. S1249227/H) to be the executrix of this my Will.

2. 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 [Sebastian] (Singapore NRIC No. S1260305/C).

[emphasis added; underlining in original]

4 The Testator’s assets are largely tied up in two family companies which he founded (referred to collectively as “the Family Companies”), namely, 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. The Testator’s surviving family members include the following:

	Name	Date of birth	Relationship with the; Testator	Position in the; Holding Company/; the Subsidiary	Shares held in the; Holding Company at; the time of the; Testator’s death
(a)	Low Ah Cheow; (“Mdm Low”)	Around 1924	Wife	Nil	33,320 (4.76%)
(b)	Ng Khim Guan; (“Ricky”)	11 September 1948	Son	Executive director; of the Holding; Company	253,340 (36.19%)
(c)	Ng Cheng Chuan; (“Sunny”)	3 December 1951	Son	Executive director; of the Holding; Company	93,320 (13.33%)
(d)	Ng Peck Eng; (“Calista”)	4 August 1954	Daughter	Secretary of the; Subsidiary	Nil
(e)	Ng Bee Eng; (“Angeline”)	22 March 1956	Daughter	Secretary of the; Subsidiary	Nil
(f)	Sebastian	1 April 1957	Son	Executive director; of the Holding; Company	66,640 (9.52%)
(g)	Ng Gui Eng; (“Jenny”)	9 July 1959	Daughter	Clerk	Nil
(h)	Ng Ah Luan; (“Edwina”)	7 July 1962	Daughter	Administrator of a; branch office at; Jurong Container; Warehouse	Nil
(i)	Ng Puay Guan; (“Raymond”)	5 December 1966	Son	Non-executive; director of the; Subsidiary	Nil

The Testator held in his own name 253,380 shares (36.20% of the shareholding) in the Holding Company. He also held in his own name a property at No 1A Wiltshire Road (“1A Wiltshire”), which was the family home. His other assets included some shares in publicly listed companies in Singapore and Malaysia, Central Provident Fund savings, moneys kept in bank accounts and cash at his home.

The proceedings in the High Court

5 Sebastian applied for probate of the Will on 11 June 2001. For reasons that are not apparent to us, the grant of probate (“the Grant”) was made only on 27 July 2005 after an unusually long lapse of time. The other family members of the Testator did not participate in the probate proceedings. On 20 February 2006, approximately seven months after the Grant was made, the appellants in this appeal – namely, Mdm Low; Raymond; Angeline; Sunny’s son, Ng Jian Wen (“Jian Wen”), suing by his parents; and Raymond’s son, Nicholas Ng Zhi Kai (“Zhi Kai”), suing by his father – commenced Suit No 83 of 2006 (“the Suit”) against Sebastian for, inter alia, the following reliefs:[note: 1]

(a) A declaration that [Sebastian] is only a trustee of the [Testator] and is not a beneficiary of the trusts or the Estate;

(b) A declaration that the Estate is subject to trusts in accordance with the [Testator’s] wishes and which terms and beneficiaries are as follows:–

i. [Mdm Low] is absolutely entitled to the whole of the property known as 1A Wiltshire …;

ii. [Raymond] is entitled to a sum of $200,000;

iii. [Angeline] is entitled to a sum of $90,000 and 33,320 of the shares registered in the [Testator’s] name in the [Holding] Company;

iv. [Sunny’s] and Mdm Chou Li Lan’s son, … Jian Wen, is entitled to a sum of $300,000;

v. [Raymond’s] son namely … Zhi Kai … is entitled to a sum of $100,000; and

vi. The balance 186,740 of the shares registered in the [Testator’s] name in the [Holding] Company are to be transferred to [Mdm Low] for her to deal with as she deem[s] fit.

(c) In the alternative, a declaration that the Estate is subject to trusts in accordance with such terms of the trusts created by the [Testator] to be determined by the Court …

[emphasis added]

It should be noted that, although Raymond’s other son, Ng Zhi Hao (“Zhi Hao”), was neither named as a plaintiff in the Suit nor listed as one of the alleged beneficiaries in the above extract from the appellants’ fourth amended statement of claim filed on 4 January 2007 (“the Statement of Claim”), it was pleaded that he (Zhi Hao) was entitled to a sum of $100,000 (see, inter alia, paras 4(h), 7.9(vii) and 7.10(ix) of the Statement of Claim). Indeed, the Judge noted in the Judgment (at [5]) that “[t]he substance of the Statement of Claim … discloses the claim for … Zhi Hao as well and it is not disputed that in substance, he is also a plaintiff”.

6 In summary, the appellants’ pleaded case was that Sebastian was merely an executor and trustee of the Will, and that the Estate was subject to the trusts set out in prayer (b) of the quotation from the Statement of Claim set out in the preceding paragraph (“the Pleaded Trusts”). The fallback position of the appellants was that, if they were unable to establish the Pleaded Trusts, the court should then declare that the Estate was subject to such trusts created by the Testator as the court was able to determine (see prayer (c) of the above-mentioned quotation). The Pleaded Trusts concerned the specific properties listed below (collectively, “the Trust Properties”):

(a) in respect of Mdm Low (the first appellant), 1A Wiltshire and 186,740 of the Testator’s shares in the Holding Company;

(b) in respect of Raymond (the second appellant), a sum of $200,000;

(c) in respect of Angeline (the third appellant), a sum of $90,000 and 33,320 of the Testator’s shares in the Holding Company;

(d) in respect of Sunny’s son, Jian Wen (the fourth appellant), a sum of $300,000; and

(e) in respect of Raymond’s two sons, Zhi Kai (the fifth appellant) and Zhi Hao, a sum of $100,000 for each son.

The Judge’s decision

7 The Judge treated the appellants’ pleaded case against Sebastian as being based exclusively on the doctrine of secret trusts (see the Judgment at [5]). As he saw it, the appellants’ action rested on the premise that the Testator had communicated to Sebastian his wish that the Trust Properties be distributed to the specific beneficiaries outlined at [6] above, and that Sebastian had assented to the Testator’s wish. The Judge held that the burden was on the appellants to establish the existence of the Pleaded Trusts (see the Judgment at [21]). He also found that the appellants had abandoned the argument that the Pleaded Trusts were half-secret trusts and had proceeded instead on the basis that they were fully secret trusts...