Ng Foong Yin v Koh Thong Sam

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 25 April 2013
• Neutral Citation: [2013] SGHC 87
• Court: High Court (Singapore)
• Year: 2013
• Docket Number: Suit No 426 of 2011
• Published date: 28 May 2013
• Plaintiff Counsel: Ng Chin Foong Charles, Edwin Lee Peng Khoon and Lai Yan Ting (Eldan Law LLP)
• Defendant Counsel: Lim Hong Kian (Lim & Bangras)
• Citation: [2013] SGHC 87

Judith Prakash J: Introduction and parties

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.

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.

The plaintiff, Mdm Ng 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.

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 cl 7, 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

Two other clauses should be mentioned. By cl 4, 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 cl 8, Mdm Tan directed that in the event her sons Koh Thong Meng (“Thong Meng”) 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.

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 cl 7 of the will in the shares specified there.

The claim and the defence

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: 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 Schedule 1 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 Schedule 1, the name of Mdm Tan is given as the name of the creditor and then particulars of the debt are set out.] In para 9, that, as the defendant well knew, the debt of $3,240,050 became due and owing from Thong Tee’s estate to Mdm Tan’s estate immediately upon the issue, on 20 February 2008, of the certificate from the Commissioner stating that certified that estate duty on Thong Tee’s estate had been paid, and the defendant was bound to pay the said debt to Mdm Tan within a reasonable time. However, the defendant refused and/or failed to pay the sum or any part thereof to Mdm Tan or to her estate. In para 11, that on several occasions, Mdm Tan had told the plaintiff that she had previously given Thong Tee more than $3m for the purpose of providing funds which Thong Tee could use to pay for the expenses of his brother, Thong Meng, who was mentally unstable. In para 13, after Thong Tee died, Mdm Tan had asked the defendant to claim the said sum from Thong Tee’s estate and return it to her. Mdm Tan told the plaintiff that the defendant had assured her that he would return the money after he had completed liquidating the assets of Thong Tee’s estate. In para 17, that the defendant was guilty of wilful default because he had failed to include and declare certain properties including the said sum of $3,240,050 in the Schedule of Assets of the estate of Mdm Tan which was filed in this court on 1 July 2010. In para 18, that if the said sum of $3,240,050 had been disclosed in the said Schedule of Assets of Mdm Tan’s estate, the same would have comprised an additional part of Mdm Tan’s residuary estate and the plaintiff would be lawfully entitled to receive, as one of the named beneficiaries of Mdm Tan’s will, a sum equal to 2/26th shares thereof. The plaintiff claimed: A full and complete account by the defendant of his administration of the estate of Mdm Tan, including an account of what is due and owing to her estate from the estate of Thong Tee; An order for an account of the personal estate of Mdm Tan taken on the footing of wilful default, and/or to have the same administered by an administrator to be appointed by the court; and Payment to the plaintiff of such sums of money as may be found due to her as one of the beneficiaries of Mdm Tan’s estate.

The defendant resisted the plaintiff’s claim. In the material portions of his defence he asserted: By para 7, that the Declaration of Assets in the estate of Thong Tee was true and correct and that during the lifetime of Thong Tee, Mdm Tan had entrusted the following personal properties to Thong Tee to be held in trust for her absolutely: OCBC shares (particulars were given in a table). The said shares were originally purchased by Mdm Tan and registered in her name. Subsequently, they were transferred to Thong Tee to be sold on Mdm Tan’s behalf and the proceeds thereof amounting to $2,640,050.40 were held in trust for Mdm Tan in Thong Tee’s bank account. In the course of his lifetime, Thong Tee used these proceeds to buy and sell other shares and also re-deposited the moneys in several accounts. Mdm Tan handed Thong Tee a sum of $600,000 with specific instructions for him to hold it in trust for her. By para 10, the Declaration of Assets in respect of Thong Tee’s estate that Thong Tee was indebted to Mdm Tan in the aggregate sum of $3,240,050 was made to show the residuary legatees that there was no residuary estate to be distributed to them. All the shares and cash less the expenses listed in Annexure 1 to the defence (“Annexure 1”) were given by Mdm Tan to the defendant inter vivos. By para 18, the defendant quoted a letter dated 7 February 2011 from his solicitor (see [28] below). By para 19, that by reason of cl 4 of Mdm Tan’s will, whatever moneys Mdm Tan had jointly with the defendant in any bank of financial institution belonged absolutely to the defendant. By para 20, that by a letter dated 9 September 2010, the defendant’s lawyer forwarded to the plaintiff a statement of account in respect of Mdm Tan’s estate enclosing a cheque for the sum of $443,291.68 payable to the plaintiff being the plaintiff’s share in the residuary estate and the statement clearly spelt out how this amount was arrived at. Similar accounts were forwarded to the other 11 beneficiaries together with their respective entitlements. By para 21, that in February 2011, the plaintiff was given a further sum of $395,568.75 being her share in the proceeds of sale of a property that belonged to the estate. By para 22, that it was not true for the plaintiff to allege that the defendant had refused to provide the plaintiff with “an account of the defendant’s administration of the estate of [Mdm Tan]”.

Annexure 1 set out the defendant’s calculation of the assets and expenses of the estate of Thong Tee.

Essentially, therefore, the defendant’s response to the plaintiff’s claim is that all assets representing the debt which the estate of Thong Tee owed Mdm Tan were collected by him in the course of his administration of Thong Tee’s estate and, after payment of expenses, the balance was given to him by Mdm Tan. Accordingly, when Mdm Tan died, these assets belonged to him and were not part of her residuary estate.

In his closing submissions, the defendant states that the Schedule of Assets filed on 1 July 2010 disclosed all the assets that were in his mother’s name when she died on 14 May 2010....