Low Guang Hong David and others v Suryono Wino Goei

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 03 May 2012
• Neutral Citation: [2012] SGHC 93
• Plaintiff Counsel: Gregory Vijayendran and Vidhya Mahentharan (Rajah & Tann LLP)
• Docket Number: Originating Summons No 151 of 2012
• Date: 03 May 2012
• Hearing Date: 10 April 2012
• Subject Matter: Statutory Interpretation,interpretation of s 3 Intestate Succession Act,whether definition of "child" includes "stepchild",Probate and Administration,whether definition includes "stepchild",Words and Phrases,definitions,"child",intestate succession
• Year: 2012
• Citation: [2012] SGHC 93
• Defendant Counsel: Tan Yew Cheng (Leong Partnership)
• Court: High Court (Singapore)
• Published date: 10 May 2012

Tay Yong Kwang J: Introduction

The marriage in December 1975 between Mr Low Kim Huat (“Mr Low”) and Madam Lina Halim (“Mdm Lina”) did not produce any children. However, Mr Low had children from his previous marriage and they are the plaintiffs in this originating summons. They were said to have been treated by Mdm Lina as if they were her own children. They were all adults when Mr Low and Mdm Lina got married. When Mr Low passed away in 1994, he bequeathed his estate to Mdm Lina. She died on 21 April 2011 without leaving a will. An unsigned will apparently leaving her estate to the plaintiffs was, however, found in her safe deposit box with a bank after her demise. No evidence was adduced as to how this unsigned will came about.

Mdm Lina’s estate comprises¹: A HDB flat – Block 4 Upper Aljunied Lane #05-10 Singapore 360004 A freehold private property - 2 Jalan Setia Singapore 368420 Jewellery and cash in a safe deposit box in OCBC Bank.

As Mdm Lina, who was not a Muslim, did not leave a will, the Intestate Succession Act (Cap 146, 1985 Rev Ed) (“the Act”) governs the distribution of her estate. The plaintiffs commenced this action for a declaration that, as the step-children of Mdm Lina, their claims in respect of her estate rank higher in priority over the claim of Mdm Lina’s single brother, the defendant.

Section 3 of the Act defines a child as follows: Interpretation 3. In this Act —

“child” means a legitimate child and includes any child adopted by virtue of an order of court under any written law for the time being in force in Singapore, Malaysia or Brunei Darussalam;

…

[emphasis added]

The issue that has to be determined in these proceedings is whether “child” under s 3 of the Act is to be interpreted as including a step-child. If the answer is yes, the plaintiffs would be deemed to be the “children” of Mdm Lina for the purposes of the Act. Under the rules of distribution in s 7 of the Act, if the plaintiffs are considered Mdm Lina’s children for the purposes of the Act, they are entitled to Mdm Lina’s estate in equal portions to the exclusion of all other parties pursuant to Rule 3 in that section. However, if the plaintiffs are not regarded as Mdm Lina’s children under the Act, then her estate will go to the defendant as her only surviving family member under Rule 6 in the said s 7.

Plaintiffs’ Submissions

The plaintiffs’ submissions were made by Mr Gregory Vijayendran (“Mr Vijayendran”) and comprised two parts. The first was to persuade me that there is no obstacle in the Act which prevents me from interpreting “child” to include a step-child. The second part was an attempt to convince me why I should do so.

In the first part of his submissions, Mr Vijayendran stated that the Act does not expressly or impliedly exclude step-children, unlike illegitimate children. According to him, the word “includes” indicates an inclusionary and enlarging definition. It makes clear that the definition includes a matter that otherwise would or might be taken as outside it (see Dilworth v Commissioner of Stamps (1899) AC 99 and Lui Chang Soong v Public Prosecutor [1992] 1 SLR(R) 229). Therefore, there is no restriction on reading “child” to include a step-child.

Mr Vijayendran then made four arguments as to why a step-child should be included within the definition of “child”. He submitted, firstly, that this would be in line with Parliament’s intention. In the Parliamentary debates during the second reading of the Intestate Succesion Bill (Singapore Parliamentary Debates, Official Report (12 December 1966) Volume 25 at column 565²), the Minister for Law said the Act was intended to replace the outmoded Statute of Distributions. Mr Vijayendran read this to mean that the Act was intended to accommodate local customs and needs. As there were polygamous marriages in the past, there would have been the well known phenomenon of step-children. Parliament could not have been oblivious to such stepchildren³ and was likely to have impliedly included them within the Act.

Mr Vijyanedran’s second argument was that the law on maintenance obligations before and after the death of a step-parent would be better rationalised if the definition of “child” in s 3 of the Act included a step-child. Section 70 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”) provides that where a person has accepted a child who is not his child as part of his family, it shall be his duty to maintain that child while he remains a child so far as the father or mother of the child fails to do so. This obligation terminates upon death and if the said person dies intestate, the step-child may not be provided for. However, if “child” in s 3 of the Act includes a step-child, then step-children will still be provided for even after the death of their step-parent.

Mr Vijayendran’s third and fourth arguments were pre-emptive counter-arguments. A policy reason why step-children should not come under the Act was the possibility of “double-dipping”, where step-children could potentially claim under the estate of their biological as well as their step-parents. In respect of this policy reason, he argued that this possibility did not appear in the records as a matter of concern for Parliament. Citing Re Leach (deceased) [1985] 3 WLR 413 and Re Callaghan (deceased) [1985] Fam 1, he further argued that the double-dipping problem would be mitigated in cases where the step-child was treated as a child of the step-parent and if the deceased step-parent’s estate comprised largely of assets which were derived from the step-child’s biological parent. The fact situation here falls within these two mitigating factors.

Fourth, in AAG v Estate of AAH, deceased [2010] 1 SLR 769 (“AAG v AAH”), the Court of Appeal at [37] said that:

… the ordinary literal meaning of “daughter” would appear to have nothing to do with the legal state of legitimacy but with a biological fact.

This suggests that there has to be a biological connection which, in turn, would preclude a step-child from being considered a “child” under the Act. Mr Vijayendran sought to distinguish AAG v AAH on the basis that the statute in question there was the Inheritance (Family Provision) Act (Cap 138 1985 Rev Ed) (“IFPA”) and that the focus in that case was...