Peters Roger May v Pinder Lillian Gek Lian

JurisdictionSingapore
JudgeV K Rajah J
Judgment Date06 March 2006
Neutral Citation[2006] SGHC 39
Date06 March 2006
Subject MatterStay of proceedings,Whether court should set aside stay of notation proceedings,Civil Procedure,Whether importance of physical availability of witnesses as factor to consider diminished if video linkage available,Forum non conveniens,Respondent asserting proceedings commenced in foreign jurisdiction for declaration as to testator's domicile,Appellant and respondent disagreeing on domicile of testator,Appellant executor's ancillary application for determination whether notation should be endorsed on grant of probate that testator died domiciled in Singapore stayed by respondent on grounds of forum non conveniens,Factors to consider when deciding whether to grant stay,Factors relevant to determination of testator's domicile,Whether forum clearly or distinctly more appropriate than Singapore available,Appellant appealing against stay of notation proceedings,Whether appellant executor's ancillary application for determination whether notation should be endorsed on grant of probate that testator died domiciled in Singapore should be stayed,Lis pendens
Docket NumberProbate No 73 of 2004 (Summons
Published date07 March 2006
Defendant CounselFoo Hui Min and Usha Chandradas (Inland Revenue Authority of Singapore),Deborah Barker SC and Vanessa Yeo (KhattarWong),Phua Siow Choon (Michael BB Ong and Co)
CourtHigh Court (Singapore)
Plaintiff CounselGoh Kok Yeow (De Souza Tay and Goh)

6 March 2006

V K Rajah J:

1 Dennis William Pinder (“Pinder”) was a Titan of Singapore industry in the 1960s and 1970s. In 1975 he was convicted of several offences of criminal breach of trust. In imposing a custodial sentence on Pinder, the trial judge, Senior District Judge T S Sinnathuray observed:

The success he made and the influence he had in the business community not only in Singapore but also abroad is reflected in the phenomenal achievement of Sime Darby over the years. There is no doubt that the Accused transformed Sime Darby from being a comparatively small United Kingdom company with South East Asian interests to one of the largest companies in the United Kingdom with world-wide interests. In the course of the trial I was told that the Sime Darby Group is now a conglomeration of 131 limited liability companies, consisting of subsidiaries, associated and managed companies, under the umbrella of Sime Darby Holdings Limited. I was also told that the Group employs 39,000 people in 20 different countries. … [I]t is indeed one of the most remarkable success stories that one is ever likely to hear about. No one can deny the Accused that credit.

2 Upon his release from imprisonment, Pinder publicly declared and repeatedly maintained that he was a Singapore citizen, that Singapore was his home and that he had “no intention of leaving”. He led a quiet life thereafter attending to his private business interests and acting from time to time as a business consultant. Although he travelled frequently and extensively, he invariably returned to Singapore.

3 In July 2003, while in England, he was diagnosed with deep vein thrombosis and was advised not to travel until he recovered. On 12 January 2004 he sent a fax to his family and friends stating:

1. We are … scheduled to leave London on Tuesday, 27th January, arriving Singapore the following evening.

2. This will be a considerable relief, having been away for such an extended period!

[emphasis added]

Unfortunately, before he could return to Singapore, fate intervened. His health took an unexpected and sudden turn for the worse and he passed away in England on 22 January 2004.

4 This matter arises as a consequence of probate proceedings commenced by the appellant who is the executor (“the Executor”) of the last will of Pinder. He filed an application for probate on 28 April 2004; on 4 August 2004 an order was made by Judicial Commissioner Andrew Ang (as he then was) granting probate to the Executor. That order, however, at the behest of the respondent, Pinder’s widow, left unresolved the issue of Pinder’s domicile. Subsequently, on 12 May 2005, the Executor filed an ancillary application pursuant to s 7 of the Probate and Administration Act (Cap 251, 2000 Rev Ed) (“PAA”) for a determination whether a notation should be endorsed on the grant of probate that Pinder died domiciled in Singapore (“the notation proceedings”). Shortly thereafter, the respondent filed an application to stay the notation proceedings. An assistant registrar acceded to the respondent’s application on 26 July 2005 and stayed the notation proceedings. The Executor appealed. I allowed the Executor’s appeal and the respondent has now appealed against my decision.

The background

5 The Executor is the Senior Partner of an English law firm, Gordon Dadds Solicitors (“GDS”). He is an English solicitor of more than 30 years’ standing and specialises in trusts, probate and associated matters. GDS prepared Pinder’s last will dated 29 June 1984 (“the Will”) and in accordance with his instructions, GDS maintained custody of the original will.

6 The Executor is not a beneficiary under the Will and is acting in a strictly professional capacity. The Executor asserts that his decision to prove the Will in Singapore was made only pursuant to thorough and extensive enquiries conducted with the assistance and recommendations of solicitors, both in Singapore and in Hong Kong. He determined that for the final 30 years of Pinder’s life, Singapore represented the focal point of Pinder’s personal, social, financial and business activities. Pinder had, the Executor maintains, made an irreversible decision in the 1970s to live permanently in Singapore. He had to that extent acquired a domicile of choice in Singapore, thereby renouncing his presumed and original English domicile. The Executor emphatically maintains that documents such as Pinder’s passports, his personal tax submissions and newspaper reports articulating Pinder’s actual intentions all served to fortify his conclusion that Pinder was domiciled in Singapore prior to his demise.

7 The respondent, on the other hand, affirms that Pinder had always been domiciled in England notwithstanding his very close connection with Singapore. Pinder was born and educated in England. After his first marriage in England, he was employed by Sime Darby in Malaya from 1953. He became managing director and chairman of the Sime Darby group in 1965. The respondent asserts that Pinder had at all material times an English passport in addition to his Singapore passport, stayed in London regularly, owned property in London, married her in London and was even on the London electoral roll. It bears emphasis that the determination of Pinder’s domicile one way or the other will in turn entail very significant financial consequences for the respondent. The respondent asserts that if Pinder was domiciled in England, as she believes, she stands a “very good chance” of recovering at least 50% of the estate on an application pursuant to the English Inheritance (Provision for Family and Dependants) Act 1975 (c 63) (“Inheritance Act”). As an application under the Inheritance Act can only be made in England, she claims that it is only appropriate that the determination of Pinder’s domicile should also take place there. She acknowledges and accepts that under Singapore law she will be unable to maintain such a claim. In this context it is pertinent to note that under the terms of the Will the principal beneficiaries are Pinder’s two sons and not the respondent.

8 It cannot be disputed that the Singapore courts are endowed with the jurisdiction to hear and decide both the probate (s 17(f) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)) as well as the issue of Pinder’s domicile. The jurisdiction of this court has been founded as of right. That this is indeed the position has been firmly and irrefutably pronounced in the order of Andrew Ang JC on 4 August 2004. This was made with the consent of the respondent qua caveator.

The assistant registrar’s decision

9 It would be helpful at this juncture to set out the learned assistant registrar’s grounds of the decision:

The executors have stated they are relying primarily on documents and none of their witnesses who have filed affidavits are unable to travel to England. On the other hand, the witnesses that the widow will be calling are in England or can more conveniently go to England to testify. Some are unable to come to Singapore. These are factors pointing to England being the more appropriate forum. The location of the witnesses is however not a major factor since video-linking facilities both in England and Singapore will enable witnesses to testify from remote locations in any case. It also has to be balanced against some expected delay in the conclusion of proceedings and wasted costs if the dispute were to be heard in England instead of Singapore where the proceedings are more advanced.

The major factor in the present case is however that a conclusive determination on domicile in England will bind all relevant parties but the Singapore proceedings will not have a similar effect. The UK tax authorities have stated that they will not consider themselves bound by the decision of a Singapore court on domicile and should the matter proceed in Singapore, there will be a real possibility of further litigation on the same issue of domicile for the purposes of estate duty tax in UK. On the other hand, the CED have confirmed that they will abide by the English court’s decision on domicile without reservations. This is a significant factor pointing to ... England as the more appropriate forum, as it will avoid duplicity of actions.

On the balance, I find that England is the more appropriate forum to hear the issue of domicile.

[emphasis added]

10 I pause to explain the reference to the Commissioner of Estate Duties (“the CED”) made by the assistant registrar. This is a matter of importance as it appears that the alleged confirmation of the CED impressed the assistant registrar as the pivotal reason tilting the balance in favour of the stay.

11 The CED was joined in these proceedings by the Executor. The latter is concerned about being placed on the horns of a dilemma, should it for instance be determined that Pinder was not domiciled in Singapore, but the CED on the other hand takes a contrary view. Such a predicament might expose the Executor to personal liability for payment of any estate duty assessed by the CED. The CED does not object to being made a party to the notation proceedings.

12 In the course of the appeal, the CED clarified his actual stance and vigorously emphasised that the assistant registrar had misunderstood his earlier submissions. The CED now states unequivocally that:

15. [I]t is CED’s submission that the Learned AR Ms Joyce Low misinterpreted CED’s position when she made her decision to stay the Singapore proceedings, based significantly on CED’s agreement to abide by the ruling of the UK Courts. Our position was certainly not that we would defer blindly to the UK Courts. Rather, if a Singaporean Court examined the merits of the case and was inclined to rule, on the merits of the case, that the various court proceedings relating to Dennis Pinder’s estate were better heard in the UK, then CED would abide by that decision, and not object to the proceedings moving to the UK.

24. Based on the facts...

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