Rajaratnam Kumar (alias Rajaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 26 May 2010
• Neutral Citation: [2010] SGHC 164
• Year: 2010
• Docket Number: Suit Nos 438 of 2008 and 440 of 2008
• Published date: 08 June 2010
• Hearing Date: 12 March 2010,08 March 2010,11 May 2010,09 March 2010,13 March 2010,11 March 2010,14 March 2010,15 March 2010,10 March 2010
• Subject Matter: Succession and Wills
• Plaintiff Counsel: Nandwani Manoj Prakash and Renganathan Shankar (Gabriel Law Corporation)
• Citation: [2010] SGHC 164
• Defendant Counsel: 2nd defendant in person.,Tan Kah Hin (Choo Hin & Partners)
• Court: High Court (Singapore)
• Date: 26 May 2010

Tan Lee Meng J:

The two consolidated suits in the present proceedings have their roots in an extremely bitter feud between the plaintiff, Mr Kumar Rajaratnam @ Vairamuthu Rajaratnam (“Kumar”), and his elder brother, the second defendant, Dr Bala Saravanamuthu Rajaratnam (“Bala”).

In Suit No 438 of 2008, Kumar sought to have his deceased parents’ fourth mutual wills (“the fourth wills”), which were executed on 3 November 2003, set aside. In Suit No 440 of 2008, Kumar sued Bala and the first defendant, Mr Tan Kah Hin (“Mr Tan”), who is the executor of their late father’s estate. He sought a declaration that the fourth wills are null and void and that the defendants give full accounts of the estate of his late father.

In his Defence and Counterclaim, Bala sought a declaration invalidating his parents’ third mutual wills (“the third wills”), which were executed on 28 August 2003, around nine weeks before the fourth wills were executed.

Both brothers also accused each other of exerting undue influence on their parents and of misappropriating their parents’ money.

Background

The late Mr Saravana Muthu Rajaratnam (“father”) ran a business, Raja Limb Centre (FE) Pte Ltd, which specialised in artificial limbs, hearing aids and orthopaedic equipment. He was married to the late Mdm Parameswari d/o Vairamuthu (“mother”), who helped him in the administration of his business. The couple (“the parents”) had two children namely, Bala and Kumar.

Bala was born in 1956 while Kumar was born in 1958. Both of them were sent to Australia for tertiary education in 1980. Bala obtained a degree in Physiotherapy while Kumar obtained a degree in Prosthetics and Orthotics and another degree in Physiotherapy. While Bala returned to Singapore in 1983, Kumar remained in Australia and became a permanent resident there.

The parents befriended one of their clients, Mr Tan, a lawyer who handled their personal and business legal matters.

On 20 July 2001, the parents executed mutual wills, which were prepared by Mr Tan. The parents had made earlier wills but for convenience, as the wills executed on 20 July 2001 were referred to by the brothers as the “first mutual wills”, they will be referred to as the “first wills” in this judgment. Under the first wills, Bala and Kumar were bequeathed only $500 each and each grandchild was bequeathed $2,000. The balance of the estate of the surviving parent went to a number of named charities.

The first wills were revoked on 12 October 2001 when the parents made their second mutual wills (“second wills”), which were also prepared by Mr Tan. What was different about the second wills was that the executor named in the first wills was not appointed the executor in the second wills and the list of charities that were to benefit was changed.

The year 2003 proved to be a particularly tumultuous year for the parents as they had major differences with both their sons over financial matters. By then, the father was a frail man, aged 82, who was suffering from diabetes, hypertension and ischemia. The mother, who was almost 70 years old, had been suffering from Alzheimer’s dementia since 2002. She also had breast cancer.

On 8 March 2003, the father made a police report after discovering that $500 had been withdrawn under suspicious circumstances from a DBS Bank account operated by him, his wife and Bala. The father stated in his police report that he had no suspects in mind. All the same, Bala, who suspected that someone else had taken the money, was upset enough over the missing $500 to write to his parents on 21 March 2003 as follows:

With great regret, I write this letter to you to indicate that I wish not to be involved in any of your affairs in future.

The recent incident over a misplaced $500 has highlighted that all my efforts to assist both of you seem to be viewed as negative. This is not the first time and I guess I have lost the energy to continue helping both of you….

May be it’s because I don’t know how to communicate with both of you, Kumar and your friends. I do not require any materialistic gain from both of you but peace of mind. I humbly ask you to release me from any responsibilities concerning both of you.

[emphasis added]

Bala had also tried to warn his father about what he perceived as unhealthy influence exercised by some of his father’s friends. On 29 March 2003, his enraged father wrote to him as follows:

Please stop all this nonsense and do not interfere in my financial affairs and my relationship with my friends. I have since terminated the account with you as joint partners which I never endorsed in the first place. Your name was included without my permission.

I made the police report on the missing $500 when you refused to accept responsibility for this when you were questioned by me ….

[emphasis added]

The father forwarded a copy of the above letter to DBS Bank. Why he chose to embarrass his own son by doing this when he had already terminated the account in question cannot be readily understood.

The parents also had their share of problems with Kumar. In 1997, the parents had sought the return of $200,000 that Kumar borrowed from them. Kumar insisted that it was not the right time for his parents to take the money out of Australia and that he had better plans to help his parents invest the money. The parents instructed Mr Tan to write to Kumar on 16 July 1997 to demand immediate repayment of the $200,000. The dispute between Kumar and his parents dragged on and on 6 July 1998, Mr Tan wrote to Kumar to say that the parents would like to manage their own retirement funds and that Kumar should refund the $200,000.

In 2003, Kumar’s lawyers in Melbourne were apparently preparing legal documents for his parents to sign. It appeared that Kumar’s parents still did not trust him fully as Mr Tan, wrote to Kumar on 22 July 2003 on their instructions as follows:

We are instructed that you have instructed your Melbourne solicitors. Messrs Battern Sacks Lawyers, to prepare various legal papers for our clients to sign.

We are further instructed to notify you that all legal documents are to be forwarded to us to review and study so that your parents will have proper legal advice thereon.

Despite the above evidence of the parents’ serious differences with Bala and Kumar in the first half of 2003, both brothers now claim to have won their trust completely at different times between 28 August to 3 November 2003.

When Kumar was with them on 28 August 2003, the parents executed a Power of Attorney to allow him to manage their financial affairs (“the Power of Attorney”). Simultaneously, the parents revoked their second wills and executed the third wills, which clearly favoured Kumar’s children. Kumar then brought his parents to live with him in Melbourne for a few weeks. In October 2003, the parents left Australia for Kuala Lumpur. Kumar arranged for them to stay in a rented house there and an Indian maid was hired for them. Two of the parents’ relatives lived nearby and Kumar entrusted his parents’ passports to a cousin.

Bala was quite obviously concerned that his parents had executed the Power of Attorney. On 24 September 2003, his then solicitors, ML Mayeh & Co, wrote to Mr Tan as follows:

We understand that both our client’s parents had executed a Power of Attorney in favour of their other son [Kumar].

Kindly confirm if … both our client’s parents had sought or taken any legal advice from you on the said Power of Attorney which was lodged on or about 28 August 2003.

Furthermore, we would also be grateful if you could confirm from your own personal observation whether [the parents] were in the capacity to understand and appreciate such documents on their own if such documents were put before them for their due execution.

On 25 September 2003, Mr Tan replied as follows:

We have NO knowledge of the Power of Attorney in favour of their son, Kumar. We have not seen this instrument. We were not consulted thereon.

Both parents as far as we can observe are mentally alert and can comprehend our verbal advice and questions. As for their capacity to understand and appreciate a document, we are in no position to advise. We never tested them nor are professionally qualified to do so.

[emphasis added]

On 30 October 2003, Bala went to Kuala Lumpur and managed to escort his parents back to Singapore even though they had no passports with them. The immigration authorities were informed that the parents had lost their passports. Bala checked his parents into St Luke’s Hospital for the Elderly (“St Luke’s Hospital”). On their admission, basic tests were conducted on the parents at the hospital. In relation to the Abbreviated Mental Test (“AMT”), which is a 10-item cognitive screening instrument intended to identify cognitive impairment, the father’s score was 7/10 while the mother’s score was only 4/10. It is pertinent to note that the medical summary from St Luke’s Hospital showed that no formal neuropsychological tests were carried out and that both parents could handle most of their basic activities of daily living.

On 3 November 2003, just a few days after the parents had checked into St Luke’s hospital, Bala took them to Mr Tan’s office for them to revoke the Power of Attorney and to sign their fourth wills, which gave the bulk of the surviving parent’s estate equally to both Bala and Kumar. Mr Tan was named as the executor in the fourth wills.

Alarmed by the turn of events, Kumar threatened Bala in a most unbrotherly fashion in an e-mail on 3 November 2003 as follows:

I slammed the phone down on you several time as you were meddling and we just wanted to get them to a secure home with us and settle [the parents] down. You could have called them from Singapore but everybody knows you are a cheap skate. You have not bought them a stitch of clothing or a meal. I really feel sorry for you but unfortunately you...