Ng Foong Yin v Koh Thong Sam

• Jurisdiction: Singapore
• Judgment Date: 25 April 2013
• Date: 25 April 2013
• Docket Number: Suit No426 of 2011
• Court: High Court (Singapore)

Ng Foong Yin

Plaintiff

and

Koh Thong Sam

Defendant

[2013] SGHC 87

Judith Prakash J

Suit No426 of 2011

High Court

Probate and Administration—Administration of assets—Action for account of estate—Whether action had to include other beneficiaries

Probate and Administration—Administration of assets—Discharge of trustee's duties—Whether trustee's conduct amounted to wilful default

This dispute involved the estate of Mdm Tan Tian Kwee (‘Mdm Tan’) and was between Mdm Tan's daughter-in-law, Ng Foong Yin (‘the plaintiff’), and her son, Koh Thong Sam (‘the defendant’). Mdm Tan's will had appointed the defendant as sole executor and trustee of her estate and the plaintiff, who had been married to Koh Thong Chye, Mdm Tan's late son, was named as one of the beneficiaries. As executor and trustee, the defendant had been directed to realise all of Mdm Tan's assets, pay her debts out of the realisation sums and divide the remainder of the estate among the beneficiaries.

At the same time, the defendant was also the sole executor and trustee of the estate of his late brother Koh Thong Tee (‘KTT’), who had predeceased their mother, Mdm Tan. The plaintiff argued, inter alia,that the defendant had failed to pay a debt that KTT had owed Mdm Tan back to Mdm Tan's estate; this debt should have been included as part of Mdm Tan's estate upon her death, forming part of her residuary estate to be divided among the beneficiaries. The defendant's response was that all assets representing that debt had been collected by him and, after the payment of expenses, the balance had been given to him by Mdm Tan. Accordingly these assets belonged to him and did not form part of Mdm Tan's residuary estate when she died.

Procedurally, the plaintiff brought this action on her own behalf in her capacity as a beneficiary of Mdm Tan's estate, without joining any other beneficiary of Mdm Tan's estate or KTT's estate as a party to the action. The defendant argued that the plaintiff's claim should not be entertained in view of O 15 r4 (2) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (‘the Rules’) which stated that ‘where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must ... be parties to the action...’. The plaintiff responded, inter alia, that the defendant had failed to show how the co-beneficiaries would be ‘jointly entitled’ to the reliefs sought for, and had in any case waived the irregularity by taking fresh steps in the proceedings.

Held, allowing the claim:

(1)‘Jointly entitled’ as used in O 15 r4 (2) of the Rules did not encompass entitlements which were several or alternative. The beneficiaries were each entitled to ask the defendant to give an account of his administration by virtue of his or her interest in the estate and did not have to act jointly. Hence the plaintiff was entitled to act severally in bringing this action and was not obliged to join any other beneficiary of the two estates as parties: at [18].

(2) Under O 80 r3 of the Rules, it was clear that in administration actions all personal representatives had to be joined, whereas whether a beneficiary had to be joined was dependant on the nature of the relief or remedy claimed. In this case where the claim was not an administrative action but one merely asking for a relief that could be obtained under such an action, it would have been incongruous to hold that all the beneficiaries had to be joined: at [19] and [20].

(3) The defendant failed to administer KTT's and Mdm Tan's estates properly by not carrying out a tracing exercise to determine what shares Mdm Tan had given KTT, how KTT dealt with those shares and what became of the proceeds, before distributing the shares and investments owed to Mdm Tan back to her: at [42] to [65].

(4) As to whether the money and shares recovered from KTT's estate and transferred to Mdm Tan still formed part of her property when she died, the defendant's claim that nothing remained because it was either spent or given to him during Mdm Tan's lifetime was not made out. Firstly, the defendant's evidence that Mdm Tan had made inter vivos gifts of shares and cash to him was suspect and hopelessly confused. Secondly, there were problems and discrepancies in the list of Mdm Tan's supposed expenses relating to KTT's assets as filed by the defendant: at [66] to [78].

Armitage v Nurse [1998] Ch 241 (refd)

Glazier v Australian Men's Health (No2) [2001] NSWSC 6 (folld)

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR (R) 112; [2006] 1 SLR 112 (folld)

London Passenger Transport Board v Moscrop [1942] AC 332 (refd)

Oh Chun Moy v Oh Bee Bee [2012] 1 SLR 105 (refd)

Ong Jane Rebecca v Lim Lie Hoa [2005] SGCA 4 (refd)

Ong Wui Swoon v Ong Wui Teck [2013] 1 SLR 733 (refd)

Regenthill Properties Pte Ltd v MCST Plan No 2192 [2002] 2 SLR (R) 359; [2002] 3 SLR 445 (refd)

Estate Duty Act (Cap 96, 2005 Rev Ed)

Rules of Court (Cap 22, R5, 2006 Rev Ed) O 15 r4 (2) , O 80 r3 (consd) ;O 15 r2, O 15 r6 (1)

Ng Chin Foong Charles, Edwin Lee Peng Khoon and Lai Yan Ting (Eldan Law LLP) for the plaintiff

Lim Hong Kian (Lim & Bangras) for the defendant.

Judgment reserved.

Judith Prakash J

Introduction and parties

1 This is a claim made by a beneficiary of an estate for the executor and trustee of that estate to provide an account of the estate taken on the basis of wilful default.

2 The estate in question is that of Mdm Tan Tian Kwee (‘Mdm Tan’) who died in Singapore on 14 May 2010 at the age of 97. Mdm Tan left a will in which she appointed the defendant, Koh Thong Sam, sole executor and trustee. Mdm Tan was one of the two wives of the defendant's father and there were altogether nine children in the family. Whilst technically the defendant was Mdm Tan's stepson, she treated him and his full siblings as her own children and was treated by them as their own mother. Probate of Mdm Tan's will was granted to the defendant by this court on 22 July 2010.

3 The plaintiff, MdmNg Foong Yin, was Mdm Tan's daughter-in-law, by virtue of her marriage to the defendant's twin brother, Koh Thong Chye (‘Thong Chye’). Thong Chye died in 2006.

4 Mdm Tan made her will on 26 March 2007. In it, after making certain specific bequests, she devised and bequeathed her residuary estate to her trustee, the defendant, upon trust. By cl7, the trustee was directed to realise all her assets and pay her debts out of the realisation sums and whatever ready money the estate possessed. The remainder of the estate was to be divided into 26 equal shares which were to be distributed among the following persons in the shares and proportions set opposite their respective names:

(a) Her son, Koh Thong Sam (the defendant)	Five (5) shares
(b) Her son, Koh Thong Meng	Five (5) shares
(c) Her son, Koh Thong Hong	Five (5) shares
(d) Her daughter, Shi Shue Ching @ Koh Sock Kheng	Two (2) shares
(e) Her daughter-in-law, Ng Foong Yin (the plaintiff)	Two (2) shares
(f) Her grandson, Kenneth Koh Yu Yin	One (1) share
(g) Her granddaughter, Karen Koh Shern Li	One (1) share
(h) Her granddaughter, Kathy Koh Ming Li	One (1) share
(i) Her daughter-in-law, Lou Siew Chin	One (1) share
(j) Her grandson, Koh Yew Boi	One (1) share
(k) Her grandson, Koh Tse Boi	One (1) share
(l) Her grandson, Koh Siew Boi	One (1) share

5 Two other clauses should be mentioned. By cl4, Mdm Tan declared that the moneys in joint accounts with any bank or financial institution were to be given to the joint account holder (s) absolutely. Further, by cl8, Mdm Tan directed that in the event her sons Koh Thong Meng (‘ThongMeng’) and Koh Thong Hong (‘Thong Hong’) predeceased her or died unmarried, his or their shares would be given to the defendant absolutely. Thong Meng died on 8 June 2009, about a year before his mother.

6 Apart from the plaintiff's husband, Thong Chye, and Thong Meng, one other son of Mdm Tan predeceased his mother. This was Koh Thong Tee (‘Thong Tee’). He died on 21 March 2007, only a few days before Mdm Tan made her will. Under Thong Tee's will, the defendant was appointed the sole executor and trustee of Thong Tee's estate. Probate of the will was granted to the defendant by this court on 6 March 2008. The default which the plaintiff alleges the defendant to have committed arises out of a debt which Thong Tee owed Mdm Tan at the date of his death and which the defendant took steps to recover from Thong Tee's estate on behalf of Mdm Tan. It is the plaintiff's position that the proceeds of this debt should have been included as part of Mdm Tan's estate on the latter's death and should have formed part of her residuary estate to be divided among the beneficiaries named in cl7 of the will in the shares specified there.

The claim and the defence

7 The statement of claim is rather lengthy but it may be helpful if I summarise the more pertinent portions. The plaintiff makes the following averments:

(a) In para 7, that in ‘the Declaration of the Schedule of Assets of [Thong Tee's] estate under Section 41 (2) of the then Estate Duty Act (Cap.96)’ the defendant as the sole executor of the same had acknowledged and declared to the Commissioner of Estate Duties (‘the Commissioner’) that Thong Tee was at the date of his death indebted to Mdm Tan in the aggregate sum of $3,240,050. (It should be noted that para 3 of the Declaration states that the first part of Schedule1 contains a true list of ‘the debts due from the deceased at the date of his death to persons resident within Singapore ...’; and that in Schedule1, the name of Mdm Tan is given as the name of the creditor and then particulars of the debt are set out.)

(b) In para 9, that, as the defendant well knew, the debt of $3,240,050 became due and owing from...