Ong Wui Jin and Others v Ong Wui Teck

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 14 May 2008
• Neutral Citation: [2008] SGHC 72
• Court: High Court (Singapore)
• Published date: 23 May 2008
• Year: 2008
• Plaintiff Counsel: Dodwell Alfred (Clifford Law LLP)
• Defendant Counsel: Lim Joo Toon and Tan Chin Aik Joseph (Joo Toon & Co)
• Subject Matter: Civil Procedure
• Citation: [2008] SGHC 72

14 May 2008

Andrew Ang J:

1 The subject matter of the main action in the District Court was the validity of a will made by the parties’ mother (“the deceased”). This was an application for an extension of time by the applicants/plaintiffs to serve a notice of appeal against the trial judge’s decision to uphold the validity of the said will. At the conclusion of the hearing, I dismissed the application. The following are my reasons for so doing.

Background to the application

2 The parties to this application were siblings. The deceased passed away sometime on 8 January 2005. According to an affidavit made by the first applicant in the action below, the deceased’s health condition deteriorated markedly in the midst of a heated quarrel between the first applicant and the respondent/defendant at the deceased’s home. An ambulance was called and the paramedics who attended to the deceased were of the view that her condition was very critical. The deceased was then immediately conveyed to hospital whereupon she died half an hour later (see paras 57 to 59 of the first applicant’s affidavit of evidence-in-chief dated 16 May 2006).

3 The main issue before the trial judge below was whether the Will executed by the deceased on 3 January 2005 (“the Will”), providing for a sum of $50,000 to be returned to the respondent and the remainder of her estate to be distributed equally among her surviving children, was valid. At the present hearing, I was told that the value of the deceased’s estate was worth around $700,000.

4 According to the first applicant (see in general paras 39 to 60 of his affidavit of evidence-in-chief dated 16 May 2006), the applicants were “very upset” with the respondent as the Will meant that the latter would receive $50,000 more from the deceased’s estate. The applicants also thought that the Will did not reflect their mother’s true intention. Thus, on 5 January 2005, the first applicant approached a lawyer and arranged for the latter to visit the deceased on 7 January 2005. The lawyer took instructions from the deceased and stated that he would prepare a fresh will and return the next day to have the deceased execute it. The deceased passed away on 8 January 2005 without executing a fresh will.

5 The applicants then sought to challenge the validity of the Will. After a 21-day trial, the district judge held that the Will was valid. In the brief grounds given on 31 December 2007, the district judge, inter alia, held:

Having regard to the totality of the evidence, I am satisfied that the will of the Deceased was valid. In this regard, I accept the evidence of Spring Tan and Lin Xiaoli. I am also satisfied that the Deceased had testamentary [capacity], as supported by the evidence of Dr Ng Beng Yeong, the psychiatrist, as well as that of Dr N Nagulendran, an expert engaged by the Defendants to review and provide evidence whom the Defendants, elected not to call as a witness and whom the Plaintiffs subsequently called.

I am also satisfied that the Defendants have not furnished any concrete evidence that the will was signed as a result of any undue influence or fraud. It is pertinent to note that Spring Tan, like Leroy Solomon, is an advocate and solicitor. She was present at the execution of the Will together with Lin Xiaoli, the certified interpreter. It is also pertinent to note that the 1^st and 2^nd Defendants were present at the time the Will was executed and were aware of the disputed clause. As such, there do not appear to be any suspicious circumstances and the Defendants, had they wanted to dispute the Will, should perhaps have raised it directly there and then.

As for the Deceased’s supposed desire for equal distribution throughout, it must be recognized that firstly, it has not been clearly shown. Even if it had been, it is the testator’s prerogative to change her mind, which she may well have as evidenced by the 1^st Defendant’s communication with Spring Tan to change the Will and also the subsequent instructions of Leroy Solomon Tan. It is however clear that the fresh Will was never executed. I should perhaps also add that the desire for equality as the testator’s consistent intention as advanced by the Defendants is somewhat inconsistent with the 2^nd Defendant’s own evidence that the testator had wanted to give her the house, diamond ring and additional monies on the 2^nd day of Chinese New Year.

All things considered, I am satisfied that the said Will was valid.

6 Being dissatisfied with the district judge’s decision, the applicants then decided to appeal to the High Court. The notice of appeal was, however, served on 16 January 2008 and the service being two days out of time, the present application seeking a retrospective extension of time was made.

The law

7 The principles governing the court’s discretion to extend time had been recently restated by the Court of Appeal in Lee Hsien Loong v Singapore Democratic Party [2008] 1 SLR 757 (“LHL”). The four factors which the court would consider in an application for an extension of time to file or serve a notice of appeal are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the prejudice caused to the would-be respondent if an extension of time was in fact granted. The Court of Appeal stressed at [28] that all four factors were of equal importance and should be balanced amongst one another, having regard to all the facts and circumstances of the case concerned. It was also stated that if the delay was de minimis, the court might not need to conduct an inquiry into the reasons for the delay: at [21].

8 With specific regard to the third factor, namely, the chances of the appeal succeeding, the Court of Appeal observed at [20] that the merits of the case would be of signal importance where the appeal was a hopeless one as notwithstanding even a very short delay, an extension of time should generally not be granted as to do so would be an exercise in futility.

My decision

9 The matter first came before me on 21 February 2008. In view of the de minimis delay, I was inclined not to inquire any further into the reasons of the delay. That aside, the respondent’s affidavit filed on 19 February 2008 challenged the application to extend time on the grounds, inter alia, that there were no merits to the appeal. I then adjourned the hearing to allow the applicants the opportunity to file reply affidavits. Four reply affidavits were filed. In this regard, the merits of the applicants’ appeal were addressed by way of counsel for the applicants Mr Dodwell’s affidavit-in-reply filed on 6 March 2008. At para 22 of the said affidavit, it was stated that:

There is [sic] clearly inconsistent statements as to the mother’s ‘true will and intent’ and that is why it would be most prudent and in...