Re Tan Lip Buoy's Will

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 02 May 1996
• Neutral Citation: [1996] SGHC 91
• Citation: [1996] SGHC 91
• Defendant Counsel: Han Kee Fong (Tan Rajah & Cheah)
• Published date: 19 September 2003
• Plaintiff Counsel: Henry Dyne (Donaldson & Burkinshaw)
• Date: 02 May 1996
• Docket Number: Originating Summons No 714 of 1995
• Court: High Court (Singapore)
• Subject Matter: Bequest of ancestral fund,Whether infringed rule against perpetuities,s 7 Statute of Frauds,No known beneficiaries,Express trusts,Whether charitable trust,Whether executors of will could create trust of property held by him on behalf of estate,Trusts,Validity,Failure of trust

By this originating summons the applicants, who are the present trustees of two properties known as lots 475 and 488 of TS28 at Keng Lee Road/Suffolk Road (the property) seek the court`s directions as to the construction of a clause in the will of one Tan Lip Buay alias Tan Hock San (hereinafter called `the testator`) who died in 1930. They also seek the directions of the court as to a declaration of trust of the property made in 1935 in an indenture of conveyance by the executors of the estate of the testator.

Background

The testator first acquired an interest in the property (plus one other) in 1920 by way of an indenture of statutory mortgage dated 29 July 1920 whereby the then owner, one Low Long Teng, mortgaged the property to the testator as security for an advance of $80,000 by way of a loan at the rate of interest of 12% pa.

On 8 March 1921, the property (plus the one other) were sold and conveyed to the testator for a price of $80,000 and the whole of the purchase price was retained by the testator in satisfaction of the principal and interest due to the testator under the 1920 mortgage.

On 24 June 1927 the testator made a will where, after making specific legacies, he devised and bequeathed:

all the rest and residue of my estate to my executors upon trust to stand possessed thereof as an ancestral fund and to apply the same and the income thereof to all the purposes customarily implied by that expression provided that if my secondary concubine Ting Sze Chai Ket who had a son which died in infancy shall after my death return to Swatow and adopt a son my executors shall thereupon pay to her the sum of Fifty Thousand Dollars in Singapore currency aforesaid upon trust for such adopted son to be paid by her to him upon his attaining the age of 21 years such gift to be in full satisfaction of any claim he might have against my estate and I direct that my sons shall give my said concubine every assistance to enable her to adopt a son as aforesaid and it is my earnest desire that all my wives concubines sons and daughters shall loyally abide by and carry out the directions of this my will.

The testator died on 23 August 1930 at Bangkok. On 1 May 1931 probate was granted to Tan Siu Ming as one of the two executors named in the will. On 1 April 1932 double probate was granted to Tan Siu Tin, the other executor named in the will.

Nothing eventful occurred until 15 April 1935 when the executors (Tan Siu Ming and Tan Siu Tin) jointly conveyed the property to Tan Siu Ming solely who was to hold it in trust for the partners of the firm `Chop Luang Lee` of China (hereinafter referred to as `the 1935 conveyance`). In the recitals to the conveyance, besides stating the deeds affecting the property as outlined above, it was also stated:

And whereas the said sum of $80,000 advanced upon the security of the said indenture of mortgage was in fact advanced out of moneys belonging to the firm or Chop Luang Lee of China and the said lands and premises were by the said indenture conveyed to the said Tan Lip Buay in trust for the partners of the said firm or Chop Luang Lee, as the executors hereby acknowledge and admit;

And whereas the trustee (namely, Tan Siu Ming) is one of the partners of the said firm or Chop Luang Lee;

And whereas the partners of the said firm or Chop Luang Lee have requested the executors to convey the said lands and premises to the trustee in trust for them, which the executors have agreed to do.

Tan Siu Ming died on 16 August 1945 having on 18 April 1945 made his will and appointing his wife, Nang Thongpoon Wanglee, to be the sole executrix and trustee thereof. Letters of administration was on 12 July 1948 granted to Tan Lip Sang and Tan Song Jui as the duly constituted attorneys of Nang Thongpoon Wanglee. On 30 June 1951, Tan Lip Sang and Tan Song Jui as administrators conveyed the property to Tan Siu Tin to hold the same in trust for the partners of Chop Luang Lee. In the recital of the conveyance it was stated that Tan Siu Tin was one of the partners of Chop Luang Lee and that the partners had requested the administrators to convey the property to Tan Siu Tin in trust for them.

On 20 June 1979 by a deed, Tan Siu Tin appointed Chan Ying Ting as an additional trustee and the property was vested in them jointly subject to the trust.

Tan Siu Tin died on 25 November 1982. On 17 May 1994 Chan Ying Ting by a deed appointed Tan Kok Sing and Chen Soon Lee (the applicants herein) as new trustees in place of Chan Ying Ting who was to retire and it was stated that the property shall vest in the new trustees.

Pursuant to an order of court made herein on 25 August 1995 Mr HM Dyne, advocate and solicitor, is appointed to represent all the persons interested in maintaining that the property belong to Chop Luang Lee of China and Mr KF Han, also an advocate and solicitor, to represent all persons who may be interested in the residuary estate of the testator.

Issues

On the facts and the submissions before me, four questions arise for consideration. First, were the executors acting in breach of trust when they declared in the 1935 conveyance that the property was to be held in trust for Chop Luang Lee? Putting it another way, was there any...