Peters Roger May v Pinder Lillian Gek Lian

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 17 April 2009
• Neutral Citation: [2009] SGHC 90
• Docket Number: Probate No 73 of 2004 (Summons in Chambers No 2374 of 2005)
• Date: 17 April 2009
• Published date: 21 May 2009
• Year: 2009
• Plaintiff Counsel: Jason Lim Chen Thor and Goh Kok Yeow (De Souza Lim & Goh)
• Citation: [2009] SGHC 90
• Defendant Counsel: Phua Siow Choon (Michael BB Ong & Co),Deborah Barker SC and Audra Balasingam (KhattarWong)
• Court: High Court (Singapore)
• Subject Matter: Executor's application for notation on grant of probate,Grant of probate,Probate and Administration,Whether deceased died domiciled in Singapore

17 April 2009 Judgment reserved.

Andrew Ang J:

1 This is an executor’s application filed pursuant to s 7 of the Probate and Administration Act (Cap 251, 2000 Rev Ed) for a notation to be endorsed on the grant of probate for the deceased, Mr Dennis William Pinder (“Pinder”), that he died domiciled in Singapore (“the notation proceedings”). The executor is a practising solicitor in London and also the trustee of Pinder’s estate. He was appointed in his professional capacity, being a solicitor of the firm whose services Pinder engaged to draft his will, and is not a beneficiary under Pinder’s will. The caveator is Pinder’s lawful widow and is a Singapore citizen resident in Singapore. It is the caveator’s case that Pinder died domiciled in England.

2 Pinder passed away on 22 January 2004 in England. On 28 April 2004, the executor filed a petition seeking the grant of probate of the will made with Gordon Dadds Solicitors in England on 29 June 1984 (“the Will”). Under the Will, the bulk of Pinder’s estate (estimated by the executor to be worth $16m) would go to his two sons from his first marriage while the caveator would inherit his personal chattels excluding money and securities. On 21 May 2004, the caveator entered an appearance and, on 4 August 2004, she filed affidavits objecting to the issue of the grant of probate on the grounds, inter alia, that Pinder was domiciled in England. The caveator had been surprised by the Will and had contended that it was not Pinder’s last will but was ultimately unable to find any later will. The caveator thus agreed to withdraw and remove the caveat lodged, and I granted probate for Pinder’s estate on 4 August 2004, but, by consent, did not make any finding as to Pinder’s domicile so that this issue could be decided separately. On 12 May 2005, the executor commenced the notation proceedings. The caveator applied for a stay of the notation proceedings on the ground of forum non conveniens but V K Rajah J dismissed the application in Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR 381 (“the stay proceedings”).

3 The implications of the notation proceedings are clear: if I find that Pinder died domiciled in Singapore, his estate would be subject to estate duty in Singapore at 5% for the first $12m of its principal value, and at 10% thereafter. If he died domiciled in England, his world-wide estate would be subject to English inheritance tax at 40%; the caveator also asserts that, as the widow of an English-domiciled deceased, she would have a good chance of recovering 50% of his estate on an application to the English court pursuant to the English Inheritance (Provision for Family and Dependants) Act 1975.

Facts

4 Pinder was born in England on 26 January 1924, joined the British Armed Forces in 1942 and fought for Britain in the Second World War. After the war, he returned to England, qualified as a chartered accountant and married his first wife Joyce in 1948. In 1953, Pinder went to Malaya to work as the chief accountant of Sime Darby Ltd. In 1959, he was posted to Sime Darby’s Singapore office.

5 Pinder’s two sons by his first wife were Paul Nigel Pinder (born in Singapore on 13 November 1963) and Charles Hilary Pinder (born in Singapore on 22 October 1965). Pinder and his first wife were divorced in the late 1960s and she returned to England with their two sons. He became the managing director and chairman of the Sime Darby group in 1965. On 7 March 1972, Pinder became a Singapore citizen. In July 1972, he married the caveator in South London and his two sons returned to live in Singapore with them and the caveator’s daughter from her first marriage.

6 In 1973, Pinder was dismissed from Sime Darby and, in October 1975, he was convicted of three charges of criminal breach of trust in connection with financial irregularities in Sime Darby. He was sentenced to 18 months’ imprisonment and released after serving 12 months of his sentence. Upon his release from prison on 20 October 1976, Pinder was interviewed by the press and quoted in The Straits Times on 21 October 1976 as saying:

I’m a Singapore citizen and I have no intention of leaving.

The Business Times of the same day quoted him to similar effect. A further article in The Business Times of 23 October 1976 reported that Pinder intended to take a trip to London with his family for a short holiday and to undergo an operation on his left leg after which he would “be coming back to Singapore to find a job”. He further declared:

I am a citizen of Singapore, my wife is a citizen, and this is our home.

7 While in prison, Pinder made a will in December 1975 naming the caveator as sole executrix and sole beneficiary of his estate. However, on 29 June 1984, apparently without the caveator’s knowledge, he made the Will in England with Gordon Dadds Solicitors. As earlier mentioned, this was the Will proved in the present probate issued in Singapore on 10 November 2005.

8 In 1977, Pinder purchased a property at 28 Victoria Park Road in the joint names of the caveator and himself, and they occupied it as their matrimonial home. Pinder and the caveator sold the property at 28 Victoria Park Road in 1993 and purchased another property at 128 Yuk Tong Avenue in October 1993 as tenants in common in equal shares. They then jointly made an announcement to family, friends and associates that they would be taking up residence at 128 Yuk Tong Avenue, which they described as their “new permanent home”, and that correspondence should be addressed there from 24 September 1993.

9 From 1993, Pinder was engaged as a business consultant by one Lee Thor Seng for the latter’s companies. The terms of his engagement included rent-free accommodation at 28 Leonie Hill, #24-30 Leonie Towers (“the Leonie Towers apartment”). While Pinder and the caveator moved there after a brief period of residence at 128 Yuk Tong Avenue, they never let out the latter property. Extensive renovations – at a cost of over $400,000 and completed only in 2001 – were carried out to the property and Pinder continued to pay property tax thereon at an owner-occupied rate. The caveator has been residing at 128 Yuk Tong Avenue since Pinder’s death.

10 In September 1994, Pinder purchased a flat at No 89 Whitehall Court in the name of Whitehall Court Ltd, a company registered in Hong Kong. Pinder and the caveator each owned 49% of its issued shares. He had earlier bought a flat at No 74 Whitehall Court in or about 1968 and had transferred it to the caveator around 1976 before it was further transferred to Whitehall Court Ltd. No 74 Whitehall Court was sold sometime between 1993 and 1994.

11 In February 2003, Pinder left Singapore for England on a holiday but, owing to illness, was there detained on medical advice for his recuperation for about 11 months before he died, suddenly and unexpectedly, on 22 January 2004 at St Thomas’ Hospital, London. At the time of his death, Pinder held a Singapore passport and a UK passport obtained in or before 1992.

12 The sole issue to be determined is whether Pinder was domiciled in Singapore or England at the time of his death. The executor produced a wealth of documentary evidence indicating the former, including a letter from Pinder’s doctor dated 17 June 2004 explaining why Pinder had been obliged to stay on in England for about 11 months prior to his death.

13 The caveator submits that Pinder had never abandoned his domicile of origin, having always intended to retire in England and never having acquired any domicile of choice in Singapore. Alternatively, the caveator argues that even if Pinder had abandoned his domicile of origin when he obtained Singapore citizenship, he had abandoned this domicile of choice and reverted to his domicile of origin in England subsequently when, intending to retire in England, he decided not to reside in Singapore.

14 In particular, the caveator contends that, on various occasions, Pinder had expressed his intention to return to England to her and to other persons close to him. According to the caveator, Pinder had always considered England to be the place where he belonged, and intended to retire to. It is not disputed, however, that up to the time of his death, a few days short of his 80th birthday, Pinder had still not retired. Thus the caveator’s primary case is necessarily that Pinder had never acquired a domicile of choice in Singapore, rather than that, having acquired a Singapore domicile, he reverted to his domicile of origin, the latter being the caveator’s alternative contention.

The law

15 The concept of domicile under Singapore law is based on the traditional concept of domicile in English law. No person can be without a domicile. The origin of this rule lies in the need to connect every person with a particular legal system by which a number of legal relationships may be governed. It follows that a person cannot have more than one domicile at any given time. (We need not concern ourselves here with the sometimes controversial judgments in other jurisdictions which suggest that a person may have different domiciles for different purposes.)

Domicile of origin

16 Everyone acquires at birth a domicile of origin; the father’s domicile if he is legitimate and born within the father’s lifetime, and the mother’s if he is illegitimate or born after the father’s death: Udny v Udny (1869) 1 LR Sc & Div 441.

17 The domicile of origin stays with him until he acquires a domicile of choice or of dependence: Theobald on Wills (Sweet & Maxwell, 16th Ed, 2001) at para 1–02 (“Theobald”). Dicey, at para 6–031, points out the difference between domicile of origin and domicile of choice in two respects. Firstly, domicile of origin is more tenacious, it being more difficult to prove that a person had abandoned his domicile of origin than to prove that he had abandoned a domicile of choice. (See Jopp v Wood (1865) 4 DJ & S 616; Douglas v Douglas (1871) LR 12 Eq 617; Re Wills-Sandford (1897) 41 SJ...