OCBC Trustee Ltd v Koh Boon Leong Francis and Others

• Jurisdiction: Singapore
• Judgment Date: 28 February 1995
• Date: 28 February 1995
• Docket Number: Originating Summons No 622 of 1993
• Court: High Court (Singapore)

OCBC Trustee Ltd

Plaintiff

and

Koh Boon Leong Francis and others

Defendant

[1995] SGHC 57

Warren L H Khoo J

Originating Summons No 622 of 1993

High Court

Succession and Wills–Construction–Will provided for substituting as beneficiaries issue of child of testator who died “during the trust period”–No provision for substituting issue of child who pre-deceased testator–Whether issue of child who pre-deceased testator entitled to gifts devised–General intention of will to provide for all issue–Whether general intention to prevail against particular provision–Words and Phrases–“Per stirpes”–Words and Phrases–“Surviving”–Words and Phrases–“Issue”

The plaintiff, the administrator of a trust left by a testator, applied to determine certain issues which arose in the administration of the trust. The 59 defendants were all children, grandchildren or great grandchildren of the testator. One of the sons died before the testator himself, leaving five children, the first to fifth defendants. The five questions to be determined by the courts were as follows:

1. (a) whether the first to fifth defendants were entitled to the monthly allowances and shares of surplus income provided in the will. The will provided for substituting as beneficiaries the issue of a child of the testator who died “during the trust period” but no provision for substituting the issue of a child who pre-deceased the testator. However, another clause stated that all the issue of his children shall be given a share of the corpus of the estate at the end of the trust period. There was no distinction drawn between issue of any children who died before the testator himself and the issue of children who die after him. In a proviso, the testator further provided for the termination of the gift of monthly allowance, the surplus income and the corpus to the children and their issue where they committed an act or default, which would lead to the gift being vested in or payable to third parties. These were the only circumstances where the testator had provided for the cessation of any of these gifts.

2. (b) whether issue of children of the testator who died within the trust period were entitled not only to a share in the surplus income but also to the monthly allowance provided for in the will.

3. (c) whether the word “issue” applied to all descendants of the testator regardless of degree.

4. (d) What was the meaning of “per stirpes” in a proviso of the will, which stated that, if upon the death of any child of the testator “he or she shall leave issue him or her surviving, such issue shall during their respective lifetime take, if more than one in equal shares per stirpes, the monthly allowance and shares of the surplus income … which such son or daughter so dying would have taken if he or she had survived”?

5. (e) whether the word “surviving” in the same proviso was restricted to the descendants of the children of the testator who were born before the death of such children.

Held:

(1) It was clear from an examination of the will as a whole that the paramount intention of the testator was to provide for his wives, children and their issue. There was nothing in other parts of the will that suggested any intention on the part of the testator to deprive the issue of a child who predeceased the testator, nor was there any evidence why he would wish to do so. The court was not averse to going against the wording of a particular provision of the will where it conflicted with the general intention evident from the will as a whole. The issue of the testator's son who pre-deceased the testator were entitled to the gift of monthly allowance and surplus income by substitution: at [20], [21], [22], [29] and [30].

(2) The children of any child of the testator who died during the trust period were entitled to the monthly allowance provided for in the will: at [32].

(3) The word “issue” bore the prima facie meaning of descendants in all degrees. There was nothing in the will that displaced this ordinary meaning: at [34].

(4) The words “per stirpes” meant that the issue of such deceased child of the testator, if there were more than one, shall take the benefit which their parent would have taken, and shall share that benefit equally. They together could not take more or less than what their parent would have taken if he or she were alive: at [37].

(5) While the word “surviving” in “him surviving” ordinarily required that the person who was to survive shall be living both at and after a particular point in time, in the context of the instant will, where the intention obviously was that the same persons who would take a share at the distribution of the corpus of the residuary estate were to take the monthly allowance and share of the surplus income, there were ample grounds for departing from the ordinary meaning such that it referred also to issue who were born after the death of the testator's child through whom they claimed: at [41], [45], [46] and [48].

Allsop, In re; Cardinal v Warr [1968] Ch 39 (folld)

Clark's Estate, In re (1864) 3 De G J & S 111; 46 ER 579 (refd)

Elliot v Joicey (Lord) [1935] AC 209 (refd)

Habergham v Ridehalgh (1870) LR 9 Eq 395 (folld)

James's Will Trusts, In re; Peard v James [1962] Ch 226 (refd)

Johnson v Johnson (1843) 3 Hare 157; 67 ER 336 (refd)

Law Union and Crown Insurance Company, The v Hill [1902] AC 263 (folld)

Sing, In re; Sing v Mills [1914] WN 90 (refd)

Speakman, In re; Unsworth v Speakman (1876) 4 Ch D 620 (folld)

Wills Act (Cap 352, 1985 Rev Ed) s 25

Ronnie Quek and Corinna Lim (Allen & Gledhill) for the plaintiff

Gopal Krishnan Nair (G Raman & Pnrs) for the first to fifth defendants

David Ling (Ling Koh & Pnrs) for the sixth to 59th defendants.

Judgment reserved.

Warren L H Khoo J

1 The testator, Koh Sek Lim, made a will on 6 March 1944. He died on 20 August 1948. The Estate & Trust Agencies (1927), who were appointed by the will as the executor and trustee, declined probate. On 17 January 1949, letters of administration with will annexed were granted to the Public Trustee. The beneficiaries subsequently decided that it was in the interest of the trust that the plaintiffs be substituted as the trustees and the plaintiffs were so appointed by order of court on 30 August 1991.

2 The plaintiffs seek the assistance of the court in the determination of certain issues arising in their administration of the trust. The 59 defendants are all children, grandchildren or great grandchildren of the testator. Mr Gopal Krishnan Nair represents the first to fifth defendants, whose father predeceased the testator. Mr David Ling represents the others.

Relevant provisions of the will

3 Under the will, the trustees are directed to hold the residuary estate upon certain trusts provided in cl 5, which reads as follows (sub-clause numbers supplied for ease of reference):

1. 5 Upon trust that during the trust period my trustee shall apply and dispose of the income of my residuary estate in the manner following:

   …

   1. 5.3 (to) pay a monthly allowance of Dollars Fifty ($50) to each of my sons during his lifetime Dollars Ten ($10) to each of my daughters during her lifetime and Dollars Twenty-five to each of my wives during her lifetime so long only as she shall remain my widow and continue to lead a chaste life;

…

1. 5.5 (to) distribute once in every two years all surplus income (if any) in the hands of my trustee among my sons, my daughters and my wives, in the same proportions as the amounts of their respective monthly allowances, that is to say, a son shall take five shares, a daughter one share and a wife two and a half shares;

4 There is a proviso which, although placed at the end of cl 5.5, clearly applies to both cll 5.3 and 5.5. I shall call it proviso 1, and it reads as follows:

Proviso 1: Provided always and I hereby direct and declare that if upon the death of any of my sons or my daughters during the trust period he or she shall leave issue him or her surviving, such issue shall during their respective lifetime take, if more than one in equal...