Low Geok Khim (administratrix of the estate of Low Kim Tah, deceased) v Low Geok Bian and Others

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 10 March 2006
• Neutral Citation: [2006] SGHC 41
• Docket Number: Originating Summons No 826 of 2003
• Date: 10 March 2006
• Published date: 03 May 2006
• Year: 2006
• Plaintiff Counsel: Tan Kay Kheng, Sim Bock Eng and Lim Mui Ern Joyce (Wong Partnership)
• Citation: [2006] SGHC 41
• Defendant Counsel: Manoj Sandrasegara, Tan Mei Yen, Benjamin Gaw and Tan MingFen (Drew & Napier LLC),Yap Neng Boo Jimmy (Jimmy Yap & Co),Khoo Kah Lip Michael SC, Low Miew Yin Josephine, Ong Lee Woei and Chiok Beng Piow Andy (Michael Khoo & Partners)
• Court: High Court (Singapore)
• Subject Matter: Family Law,Banking,Deceased and deceased's son joint holders of bank accounts,Parent and child jointly holding bank accounts,Joint,Whether presumption of advancement,Accounts,Whether moneys vesting in deceased's son or in deceased's estate upon deceased's death,Whether deceased intending to open joint accounts at material time,Whether presumption of advancement applying such that moneys in bank accounts amounting to gifts to child from parent,Moneys in bank accounts provided entirely by deceased,Advancement,Presumption

10 March 2006 Judgment reserved.

Kan Ting Chiu J:

1 An old man died leaving moneys in seven joint bank accounts, six held jointly with one of his sons, and another with one of his daughters. He did not leave any instructions on the disposal of the moneys. The question in this action is: To whom did the moneys belong after his death?

The parties

2 Low Kim Tah (“the deceased”) died intestate on 6 December 1997 at the age of 91. He had six sons and four daughters. Two sons and one daughter died before him. His children described him as an autocratic person and a man of few words.

3 The plaintiff, Low Geok Khim, a daughter of the deceased, is the administratrix of his estate. The first defendant, Low Geok Bian, is his youngest son. He was the joint holder of six joint banking accounts with the deceased, ie:

(a) POSB Account No 045-07218-5 opened on 4 March 1983 with $221,207.11 now in the account;

(b) OCBC Account No 516-054889-001 opened on 25 February 1995 with $2,004,604.97 now in the account;

(c) OCBC Account No 516-054889-002 opened on 25 February 1995 with $2,004,604.97 now in the account;

(d) OCBC Account No 516-054889-003 opened on 11 March 1995 with $114,441.89 now in the account;

(e) OCBC Account No 516-054889-004 opened on 19 April 1995 with $114,072.52 now in the account; and

(f) OCBC Account No 516-549706-501 opened on 23 March 1990 with $12,212.82 now in the account.

These accounts will be referred to as accounts (a) to (f) respectively for ease of reference.

4 The plaintiff held one joint account with the deceased, ie, POSB Account No 045-07218-3 with a sum of $90,028.84. She became the second defendant in this capacity but she subsequently relinquished any claim to this account, and the action against her was discontinued.

5 The other 14 defendants, ie, the third to the 16th defendants, are some of the children of the two sons who had died before the deceased. They claim that the moneys in the joint accounts belonged to the deceased’s estate, to which they are beneficiaries. I shall refer to these 14 grandchildren as “the grandchildren”. (The deceased had other grandchildren who are not involved in this action.)

The question for determination

6 In this action, the plaintiff had asked the court to determine whether the moneys in the joint accounts the deceased held with her and with the first defendant belonged to the deceased’s estate or to the respective surviving account holders upon the death of the deceased. After the plaintiff relinquished her claim on the joint account she held with the deceased, the sole question to be determined is whether the moneys in accounts (a) to (f) vested in the first defendant as the surviving account holder or in the estate of the deceased upon the death of the deceased.

7 It is common ground that the first defendant did not put in any moneys into those six accounts. Accounts (a) and (f) are fixed deposit accounts. Accounts (b) to (e) are “EasiSave” accounts, which are saving accounts with cheque-issuing facilities. The moneys in the four EasiSave accounts had come out of account (f).

The issues to be decided

8 The issues to be considered are:

(a) whether the deceased had intended to open joint accounts when he opened the accounts;

(b) if the deceased had intended to open the joint accounts, whether the presumption of advancement can arise in favour of the first defendant; and

(c) if the presumption of advancement can apply, whether it is rebutted on the facts.

Whether the deceased intended to open joint accounts

9 There are two aspects to this issue: first, whether he had the mental capacity to decide to open the joint accounts and second, whether he knew he was opening joint accounts.

Whether the deceased had the mental capacity to decide to open the joint accounts

10 The grandchildren relied on the evidence of two doctors. The first doctor is Dr Tang Kok Foo. Dr Tang, a neurologist, had seen the deceased between 10 February 1995 and 22 October 1997.

11 Dr Tang’s evidence was that when he saw the deceased on the first occasion:

He was suffering from advanced dementia at that time. He was alert and polite but could not engage in any meaningful conversation, as he had no recollection of recent events. He invited me to sit down and offered me a cup of coffee. He repeated this several times during the consultation. His gait was slow and unsteady and he had to hold onto surrounding objects now and then as he walked about the room. He was smoking non-stop and appeared to be reading a newspaper when in fact he could not remember what he had just read.

On further examination, I found that he had bilateral carotid bruits. Carotid bruits are sounds we can hear with a stethoscope and they occur synchronously with the systolic phase of each heartbeat. The bruits were loud and of significant duration. This indicates that both the left and right carotid arteries supplying blood to his brain were narrowed.

12 Dr Tang also deposed that when he saw the deceased in November 1996, his dementia was already very advanced, and it was likely to be due to Alzheimer’s disease. The deceased’s family members informed him that the deceased had been in the same condition for a number of years. A daughter of the deceased told him that the deceased needed help in bathing and in toilet, but Dr Tang did not record the identity of the informant, and none of the deceased’s daughters came to court to confirm that conversation.

13 Dr Tang was of the opinion that the deceased had mild dementia in 1990. He explained that a person with mild dementia would have short-term memory impairment and might not remember events that happened a few hours or a few weeks ago, but such a person would usually be able to make reasonably good decisions.

14 The second doctor the grandchildren relied on is psychiatrist Dr Tan Chue Tin. Dr Tan did not examine the deceased, but rendered his opinion on the basis of the findings of Dr Tang and the notes of the deceased’s evidence given in Suit No 854 of 1991 (see [21] below).

15 Dr Tan’s opinion after reviewing the material was that:

[T]he Deceased would have very limited or little awareness of his situation when he opened the 4 ‘Easisave’ accounts [accounts (b) to (e)] in 1995, based on his severely impaired mental state while giving Court evidence on 15 April 1994 and the clinical and MMSE [Mini Mental State Examination] assessment by Dr. Tang Kok Foo on 10 February 1995. As for the March 1990 Fixed Deposit Account [account (f)], it is also my opinion that more likely than not the Deceased was similarly limited in his awareness of situation, given the fact that Alzheimer’s Type Dementia has an insidious onset and gradual deterioration. [emphasis in original]

and he concluded that:

(a) [A]t the time the Deceased opened the 4 Easisave joint saving accounts with the 1^st Defendant, on 25.2.95, 25.2.95, 11.3.95 and 19.4.95 respectively, with a total amount of $3,843,823/-, he was suffering from advanced dementia with severe impairment of his memory, attention/concentration, cognitive functions, reasoning ability and ability to calculate.

(b) At the time the Deceased deposited $3,009,225.19 into his personal Balestier OCBC Account (Account No. 516-033719-001) on 23 March 1990 and made 2 Placement Forms on the same day to transfer a total of $3,000,000 from this personal account to a Balestier OCBC Joint Account (Account No. 516-549706-501 jointly with the 1^st Defendant), the Deceased was likely to suffer significant impairment of his memory, attention/concentration, cognitive functions, reasoning ability and ability to calculate.

16 Dr Tan expanded on these conclusions. He explained that at the early stages of the onset of Alzheimer’s Disease, the patient’s judgment and memory would be affected. They would be mildly deficient at that stage and the further deterioration would be very gradual and take place over years. In the deceased’s case, Dr Tan stated that the deceased’s Alzheimer’s Dementia was probably in its early stage in March 1990. At the early stage, although the person afflicted might not be able to handle complicated negotiations or complicated issues, he would have the capacity to make simple deals, or decide to put money into a bank.

17 The first defendant relied on the views of two other doctors. Dr Lee Suan Yew treated the deceased from September 1987 to February 1992. The first defendant’s solicitors informed him about this action and explained to him that the issue in dispute was the deceased’s physical and mental health between 1990 and his death in 1997, and sought his assistance and input. In his reply to them, Dr Lee gave a history of the attendances and stated that when he saw the deceased on 22 February 1992, the deceased complained of a cough, but was mentally alert. Although Dr Lee was not a witness at the trial as he had informed the solicitors that he was unable to attend court, the solicitors’ letter and his reply were admitted in evidence without objections.

18 The first defendant obtained an opinion from psychiatrist Dr Brian Yeo Kah Loke on the deceased’s mental condition. Dr Yeo, like Dr Tan, did not see the deceased, and had referred to Dr Tang’s report and attendance notes on the deceased, Dr Lee’s letter, and the notes of the deceased’s evidence in Suit No 854 of 1991.

19 Dr Yeo was of the opinion that if the deceased had dementia in 1995, he was more likely to be suffering from Vascular Dementia than Alzheimer’s Dementia, and he added:

It is my opinion that it would not be possible to conclude from an examination of the deceased in 1995, that he was not in a coherent mental state a few years prior to 1995, much less in 1990. In fact, from the chronology of events that took place, it would appear that the deceased was in a more coherent mental state as late as April 1994 when he gave evidence in Court.

and

In view of the gradual and insidious progression of the disorder, it is my opinion that even if the deceased...