Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin

JudgeSundaresh Menon CJ
Judgment Date28 July 2015
Neutral Citation[2015] SGCA 36
Citation[2015] SGCA 36
Docket NumberCivil Appeal No 112 of 2014
Published date31 July 2015
Hearing Date10 April 2015
Plaintiff CounselBernard Sahagar s/o Tanggavelu (Lee Bon Leong & Co)
Date28 July 2015
Defendant CounselKoh Swee Yen and Rich Seet (WongPartnership LLP)
CourtCourt of Appeal (Singapore)
Subject MatterDeeds,Trust property,Avoidance,Client,Mistake,Deeds and Other Instruments,Conflict of interest,Particular causes of action,Contract,Non est factum,Limitation of actions,Legal Profession,Duties
Sundaresh Menon CJ (delivering the judgment of the court): Introduction

A deed was signed by several beneficiaries renouncing their interests in their father’s estate in favour of the sole administrator of the estate and one other beneficiary. The deed was executed more than a decade ago and no attendance note was prepared at that time. The solicitor who was primarily responsible for preparing the deed and attending to its execution claims that he “must have” fully explained its nature and contents to the beneficiaries, and that they, in turn, must have understood the same. At the same time, the solicitor admits that he did not meet or communicate directly with the beneficiaries who were renouncing their interests before the day on which they signed the deed. He was content to receive his instructions entirely from the sole administrator, and he proceeded to prepare the deed on that basis even though the sole administrator was a principal beneficiary under the deed. The solicitor says that he did not independently verify the instructions he was given because he never saw any potential conflict of interest. From first to last, he saw this as a non-contentious probate matter. The solicitor took comfort in the fact that he could discern no sign of disagreement when the parties finally came to his office to execute the deed. The solicitor apparently thought that a conflict of interest had to be manifested in a palpable conflict or discord between the parties at an interpersonal level rather than in their interests. As a result, the solicitor overlooked the possibility of such a conflict between the interests of the beneficiaries who were giving up their rights to their father’s estate under the deed and those of the sole administrator, who was to receive a substantial part of those rights.

The central question that this gives rise to is whether it can safely be concluded in these circumstances that the solicitor had furnished the beneficiaries with a sufficient explanation of what the deed of renunciation entailed such that they fully and fairly understood what they were signing when they executed the deed.

The background facts The parties, the disputed property, and the family business

The head of a Muslim household (“Father”) passed away on 15 March 2000, and was survived by his wife and four grown-up children. The wife (“Mother”), her eldest son (“Jahir”), and her two daughters (“Aysha” and “Noorjahan”) are the appellants in this appeal (collectively, “the Appellants”), while the second son (“Dawood”) is the sole respondent. At the centre of their dispute is the main asset which Father left behind upon his death, namely, the family home at 4 Merryn Terrace (“the Property”). There are other assets in Father’s estate (see [60] below), but those assets are not the subject of the present family dispute and, furthermore, are relatively low in value as compared to the Property.

Father purchased the Property in 1979 and registered it in his sole name. The family initially lived there together. Noorjahan was the first to move out in 1992, followed by Aysha in 1996, and Jahir in 2000. All three siblings did so after getting married. Dawood, however, never actually moved out of the Property, although it appears from his evidence that he purchased another property with his wife sometime in November 2011 and thereafter divided his time between the two properties. Mother lived in the Property at all material times until her death on 15 March 2015, just before the hearing of this appeal.

Father suffered a stroke sometime in or around 1990. This left him bedridden. Until then, he had operated a mutton stall at Tekka market. That business was the family’s only source of income. Jahir helped out at the stall until Father’s stroke, after which he took over the running of the business. At about this time, Dawood, who was then a first-year accountancy student at Nanyang Technological University (“NTU”), put his studies on hold in order to assist Jahir in running the stall, which was facing some financial difficulties. Things stabilised subsequently and Dawood moved on in 1996. However, instead of returning to NTU to complete his studies, he enrolled as a cadet pilot with Singapore Airlines. He subsequently became, and continues to be, a pilot with Singapore Airlines.

Dawood obtains the first Certificate of Inheritance in 2000

Just four months after Father’s passing in March 2000, Dawood, unbeknownst to the Appellants, took the first step towards administering the estate. Dawood applied to the Syariah Court for what is known as a Certificate of Inheritance. He wrote a letter dated 13 July 2000 to the Syariah Court for this purpose, but a copy of that letter was never produced in these proceedings.

Under Muslim personal law, matters of succession are determined by the Syariah Court, which issues a Certificate of Inheritance at the request of the prospective heirs. It is not disputed that in issuing a Certificate of Inheritance, the Syariah Court relies on the information that it is provided with. Consistent with this, the Syariah Court issued a Certificate of Inheritance dated 21 July 2000 (“the First Certificate”) which was expressly stated to be based on Dawood’s letter of 13 July 2000 (see [86] below). The First Certificate stated that the only beneficiaries of Father’s estate were Mother (with a 1/8th share) and Dawood (with the remaining 7/8th share). Curiously, the First Certificate made no mention at all of Dawood’s other siblings, Jahir, Aysha, and Noorjahan, whom we shall collectively refer to at times in this judgment as “the Three Siblings”.

The First Certificate received scant attention in the proceedings below. It only emerged for the first time in the midst of Dawood’s cross-examination. For reasons which will become evident later in this judgment, we consider it a matter of some importance.

Having obtained the First Certificate, Dawood took no steps to distribute Father’s estate. About four years later, in early 2004, the subject was raised again. This time, the Appellants were involved, but they were not told anything about the First Certificate. It is common ground that, following some discussion, the Appellants agreed that Dawood should be appointed as the sole administrator of Father’s estate and that he should consult solicitors for this purpose.

Dawood instructs solicitors for the administration of Father’s estate

Dawood was referred by a friend to Mr Harjeet Singh (“Mr Singh”), who is a solicitor of more than 30 years’ standing. Dawood attended at Mr Singh’s office on 19 February 2004 for their first meeting. Mr Singh’s wife, Ms Gurmeet Kaur (“Ms Kaur”), who was then an associate and is now a partner of the firm, was also present at this meeting. Both solicitors appeared as witnesses for Dawood in the proceedings below.

What transpired at the 19 February 2004 meeting will be the subject of close scrutiny in due course; but, at this point, it suffices to note that Dawood did produce the First Certificate to the solicitors at that meeting. This is confirmed by the solicitors’ oral evidence as well as by a handwritten attendance note prepared by Ms Kaur. We will return to that handwritten note later. What may be noted at this stage is that, like the First Certificate, Ms Kaur’s handwritten note too made no mention of the Three Siblings. For completeness, we should mention that there was also a handwritten note prepared by Mr Singh, although it was not clear whether that was a contemporaneous note of matters actually discussed at that meeting or an aide memoire that was prepared subsequently.

Although the First Certificate was produced at that first meeting on 19 February 2004, it is evident that it was very shortly thereafter discarded as invalid since it made no mention of the Three Siblings. Hence, on 24 February 2004, some days after the first meeting, Mr Singh proceeded to apply for a fresh Certificate of Inheritance from the Syariah Court in respect of Father’s estate, which certificate (“the Second Certificate”) was duly issued on the same day. The Second Certificate stated that it was issued “based on information regarding the beneficiaries given by Harjeet Singh, requested on February 24, 2004”. Unlike the First Certificate, the Second Certificate listed the following beneficiaries and their respective interests: Jahir – 14/48th share; Dawood – 14/48th share; Mother – 6/48th share; Aysha – 7/48th share; and Noorjahan – 7/48th share.

Mr Singh proceeded to communicate the receipt of the Second Certificate to Dawood. Although Mr Singh could not exactly recall, among other things, whether he did so in person, it was Dawood’s evidence that this conversation took place over the telephone. According to Mr Singh, he received the following instructions from Dawood during that conversation: (a) that the Appellants had all agreed to appoint Dawood as the sole administrator of Father’s estate; and (b) that the Three Siblings had also agreed to renounce their interests in the estate and to have the Property transferred to Mother and Dawood as joint tenants. Mr Singh did not question those instructions at all; indeed, in cross-examination, he said that he thought at that time that this was a fair arrangement in all the circumstances.

Based on those instructions, Mr Singh and Ms Kaur duly prepared various probate papers. It appears from the documents themselves that they were executed in Mr Singh’s presence on 27 February 2004. This was the only occasion on which Mr Singh and Ms Kaur met the Appellants; but, unlike in the case of their first meeting with Dawood alone on 19 February 2004, neither of the solicitors kept an attendance note recording the circumstances in which the probate papers were executed, or the advice or explanations that might have been given at that time.

There are two deeds amongst the probate papers which require...

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