Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Swoon and another and another appeal

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 08 November 2019
• Neutral Citation: [2019] SGCA 61
• Citation: [2019] SGCA 61
• Court: Court of Appeal (Singapore)
• Published date: 13 November 2019
• Docket Number: Civil Appeals Nos 178 of 2017 and 31 of 2019
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: The first and second respondents in person.
• Subject Matter: Probate and Administration,Administration of assets,Payments of debts presently due,Personal representatives,Remuneration,Contract,Intention to create legal relations
• Hearing Date: 12 September 2019

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

The present appeals are the latest instalment in the long running dispute between the Ong siblings over their deceased mother, Madam Chew Chen Chin’s (“the Deceased”) will and estate. The appellant, Mr Ong Wui Teck (“the Appellant”), is the eldest son of the Deceased and the sole executor and trustee of the Deceased’s will (“the Will”). The Appellant acts in these appeals as the personal representative of the Deceased’s estate (“the Estate”). The respondents are also the children of the Deceased and beneficiaries under the Will. The first respondent, Ms Ong Wui Swoon (“the First Respondent”), is the Deceased’s daughter; the second respondent, Mr Ong Wui Jin (“the Second Respondent”), is the Deceased’s son (collectively, “the Respondents”).

The underlying application from which these appeals arise is Originating Summons No 763 of 2014 (“OS 763”), which was originally commenced by the Appellant against the Respondents and their two other siblings, in order to recover certain sums of money which they allegedly owed to the Estate. However, in the course of the proceedings, the High Court judge (“the Judge”) invited the Respondents to make any claims they had against the Estate as counterclaims in OS 763, with the intention of deciding all outstanding claims against the Estate once and for all.

Subsequently, the Respondents made counterclaims against the Estate for, inter alia, $20,000 which was allegedly promised to each of them by the Deceased (“the $20,000 Claims”), as well as medical expenses that the First Respondent had incurred on behalf of the Deceased (“the Medical Expenses Claim”). Sometime after, the Appellant made a further claim against the Estate for accounting and legal costs that he had incurred on behalf of the Estate, in part due to having to defend against the Respondents’ counterclaims on the Estate’s behalf (“the Administration Costs Claims”).

The Judge allowed the Respondents’ counterclaims viz, the $20,000 Claims and the Medical Expenses Claim, but dismissed the Appellant’s Administration Costs Claims. Dissatisfied with the Judge’s decision, the Appellant brought Civil Appeal No 178 of 2017 (“CA 178”) to appeal against the Judge’s decision to grant the Respondents’ counterclaims, and Civil Appeal No 31 of 2019 (“CA 31”) to appeal against the Judge’s dismissal of his Administration Costs Claims. We note that the total sum in dispute amounts to less than $80,000, and it was somewhat fortuitous that the counterclaims originated in the High Court, thereby giving the Appellant one level of appeal to the Court of Appeal.

Having considered the evidence as well as the parties’ submissions, we are satisfied that the Judge’s decision to grant the Respondents’ counterclaims should be reversed. However, we do not find any merit in the Appellant’s contention that he should be entitled to further costs in the administration of the Estate. Therefore, we allow CA 178 in part and dismiss CA 31. We elaborate on the reasons for our decision below.

Procedural history and background facts The Will

Given that the present dispute has its genesis in the Will, we set out the relevant portions as follows: 1 I REVOKE all former Wills … previously made by me. 2 I APPOINT my son [the Appellant] to be the sole Executor and Trustee of this my Will. 3 Subject to payment of my debts, funeral and testamentary expenses, I give devise and bequeath all my … property … unto my Trustee upon trust to sell call in and convert into cash … AND TO DIVIDE AND DISTRIBUTE the net proceeds of such sale, calling in and conversion and all ready monies … to the following persons in accordance with the specified manner, that is to say: 3.1 To return the sum of $50,000.00 to my son [the Appellant]; 3.2 To divide the remaining … net proceeds of my estate into five (5) equal … shares and to distribute the … shares among my five surviving children in equal shares, absolutely …

IN WITNESS WHEREOF, I, [the Deceased] have hereunto set my hand to this my last Will and Testament on this 3rd day of January 2005.

The Right Hand Thumb Print of [the Deceased] was affixed in our presence and by us in hers, the [Deceased] being unable to understand the English language but understanding Mandarin and the Hokkien dialect, the Will having been translated into the Mandarin and/or the Hokkien dialect by Lin Xiaoli who is fully conversant with the Mandarin and/or the Hokkien dialect and the English language before the execution as stated above when the [Deceased] appeared thoroughly to be of sound mind, memory and to understand and have knowledge of the Will.

The Will was executed by the Deceased on 3 January 2005, while she was warded in the Singapore General Hospital. The Deceased subsequently passed away on 8 January 2005. Apart from the Appellant and the Respondents, the Deceased has two other children who are beneficiaries under the Will but are not parties to the present appeals.

The challenge to the validity of the Will

Upon the Deceased’s passing, the Appellant commenced District Court Suit No 2260 of 2005 (“DC 2260”) to apply for a grant of probate in respect of the Will. The Respondents and their other two siblings (collectively, “the Four Siblings”) sought to challenge the validity of the Will. In Ong Wui Teck v Ong Wui Jin and others [2008] SGDC 103 (“the Validity Decision (DC)”), District Judge James Leong (“DJ Leong”) found that the Will was validly executed by the Deceased and granted probate of the same to the Appellant. DJ Leong’s decision was subsequently upheld on appeal by Chan Sek Keong CJ in Ong Wui Jin and others v Ong Wui Teck [2009] SGHC 50 (“the Validity Decision (HC)”).

One of the issues relevant to these appeals, specifically the $20,000 Claims, that was heavily contested before both DJ Leong and Chan CJ was in relation to $50,000 that was bequeathed to the Appellant pursuant to cl 3.1 of the Will. The Four Siblings argued before DJ Leong and Chan CJ that the Deceased could not have intended to execute the Will with cl 3.1 in it, because it went against her intention to divide the Estate equally among her five children. Chan CJ observed that the attendance note of Ms Spring Tan (“Ms Tan”), an advocate and solicitor who was present at the signing of the Will, indicated that the Deceased was aware of the terms of the Will when she executed it: the Validity Decision (HC) at [28]. Of particular significance is the following portion from the said attendance note, which alludes to the circumstances under which the Respondents had broached the topic of the $50,000 that was bequeathed to the Appellant. It also shows how the Respondents had relied on the fact that the Appellant was being given an additional $50,000 to ask the Deceased for an additional $20,000 each for themselves:

On arrival, one other son [the Second Respondent] was sitting by bedside & talking to [the Deceased].

He was questioning [the Deceased] when [the Appellant] gave $50k, in cash, in cheque, bank into A/C, can trace?

[The Appellant] was trying to explain.

When other son insist that I witness that [the Deceased] appear to agree to give him $20k, told him that I’m here to witness her will.

[The Appellant] told [the Second Respondent] the $50k is in repayment of the monthly $800 that [the Appellant] had been giving to his mum. [The Second Respondent] then said since he gave $300 a month to his mother, he should be entitled to $20k.

…

15 mins later, [the Appellant and the Second Respondent] agreed in the Conference Rm that the will [should] be as drafted and [the Second Respondent] will get $20k from his mother directly after she leave the hospital.

While waiting with interpreter to read will, [the First Respondent] also arrived & also disputing the will. [The Respondents] then proceeded to Conference Rm to discuss.

After 15 mins, they came out & we proceed to see [the Deceased]. [The Deceased’s] back was turned away from [the First Respondent] & face[d] us, the interpreter & me.

[The First and Second Respondents] insisted on being present, [the Appellant] not around. [The First Respondent] said its just a will, can be contested anytime. [The Deceased] [confirmed] her name & add[ress] at Marine Parade. As later read will, 1st para, [the Deceased] interrupted & said she has no previous will, and that this is her 1st.

…

As [the interpreter] read [cl] 3.1, I asked [the Deceased] [through the interpreter] whether there is anyone else she wants to give too. She said no. I asked her how about [the Respondents] who have come forward.

She looked at them and [the First Respondent] said “Mum, I looked after you last time, you should give me salary.” Then [the Deceased] said “OK $20k for you”. She also said $20k to [the Second Respondent]. I asked her if she wants to add that to her will. She said “No, I will give myself”. She said she’s leaving hospital the next day and will [give] herself.

…

[emphasis added]

Originating Summons No 365 of 2014

On 16 April 2014, the Appellant filed Originating Summons No 365 of 2014 (“OS 365”) for an application that he, as executor of the Estate, be allowed a commission of $75,000, for work done by him and his wife in the administration of the Estate. The Judge allowed the Appellant’s claim in full. This will be relevant to our decision on the Administration Costs Claims.

The underlying application

On 7 August 2014, the Appellant filed the underlying application, OS 763, claiming, inter alia, various sums which were allegedly unaccounted for by the Respondents on behalf of the Estate. The Judge heard OS 763 for the first time on 29 December 2016. He conclusively dealt with most of the prayers in OS 763, and adjourned the matter to consider the remaining prayers. At this hearing, the First Respondent raised the issue of the Deceased’s medical expenses that she had allegedly paid for...