Re Will in Loke Soh Lui (deceased)

• Jurisdiction: Singapore
• Judge: Chan Seng Onn JC
• Judgment Date: 30 December 1997
• Neutral Citation: [1997] SGHC 346
• Date: 30 December 1997
• Subject Matter: Whether gift to 'natural and lawful sons' a class gift,Whether gift to deceased son protected by s 26 of Wills Act,Whether specific bequest to sons and daughter a gift to individuals or a class gift,Succession and Wills,Effect of s 26 Wills Act,s 26 Wills Act (Cap 352, 1996 Ed),Division of residuary estate among testatrix's children or such of them as shall survive testatrix,Whether gift is prevented from lapsing to children predeceasing testatrix but leaving issue surviving at testatrix's death,Whether phrase 'such of them' excludes estate of a deceased son,Construction,Whether s 26 of Wills Act applicable to class gift
• Docket Number: Originating Summons No 220 of 1996
• Published date: 19 September 2003
• Defendant Counsel: KS Chung (Chung & Co) (appointed by the court),TPB Menon (Wee Swee Teow & Co) (appointed by the court)
• Court: High Court (Singapore)
• Plaintiff Counsel: Steven Chan Swee Teck (Boswell, Hsieh and Lim)

Judgment:

CHAN SENG ONN JC

An originating summons (OS) was taken up by the trustees of the will of Loke Soh Lui deceased (`testatrix`) for the court to determine the construction of cls 4, 7 and 8 of the will of the testatrix, who died on 30 October 1995 at the age of 97 years. The testatrix was born on 12 August 1898.

2.The will reads as follows:

This is the Last Will and Testament of Loke Soh Lui of No 1 Chatsworth Road, Singapore, married woman.

1 I revoke all former Wills and Testamentary dispositions at any time heretofore made by me.

2 I appoint the British Malaya Trustee and Executor Co Ltd of Singapore (hereinafter called `my Trustees`) to be the executors and trustees of this my Will.

3 I direct my Trustees to set apart a sum of $1,500 (Dollars One thousand five hundred only) in cash which sum is to be used for my funeral expenses including the costs of my grave and tombstone (if such expenditure is unnecessary and should not be made by my husband) but if such expenditure is unnecessary then I direct my Trustees to divide the said sum of $1,500 (Dollars One thousand five hundred only) equally between all my natural and lawful daughters.

4 I direct my Trustees to set apart a sum of $1,500 (Dollars One thousand five hundred only) in cash which sum is to be used for my husband`s funeral expenses including the costs of his grave and tombstone (if such expenditure should be necessary and should not be made by his estate) but if such expenditure is unnecessary then I direct my trustees to divide the said sum of $1,500 (Dollars One thousand five hundred only) equally between all my natural and lawful sons.

5 I give and bequeath to the St Andrew`s Medical Mission Hospital the sum of $1,000 (Dollars One thousand only).

6 I give and bequeath to my friend KC Eu (Eu Keng Chu) one diamond ring to be selected by him and a gold signet ring as a token of my esteem and regard.

7 With regard to all my jewellery, trinkets, wearing apparel, and effects, I give and bequeath the same as follows:

(a) Jewellery to the value of $2,000 (Dollars two thousand) to my son Chua Boon Peng.

(b) Jewellery to the value of $2,000 (Dollars two thousand) to my daughter Chua Swee Ee.

(c) Jewellery to the value of $2,000 (Dollars two thousand) to my daughter Chua Swee Lieu.

(d) Jewellery to the value of $2,000 (Dollars two thousand) to my daughter Chua Swee Sim.

And all the rest and residue of the said jewellery, trinkets, wearing apparel and effects equally between my two sons Chua Boon Unn and Chua Boon Yew and my daughter Chua Swee Eng and I direct that my Trustees shall have a valuation made of the said jewellery, trinkets, wearing apparel, and effects and that my trustees shall apportion and allot the said jewellery, trinkets, wearing apparels, and effects amongst and between my said children in accordance with such valuation as they shall in their absolute discretion think fit in accordance with the foregoing.

8 I devise and bequeath the rest and residue of my moveable and immovable property of any nature or kind soever to my Trustees upon trust to sell call in and convert the same into money and with and out of the proceeds thereof and with and out of my ready money to pay my just debts and testamentary expenses and to divide the balance among my children Chua Boon Unn, Chua Boon Yew and Chua Swee Eng or such of them as shall survive me in equal shares.

In witness whereof I have hereunder set my hand to this will this 16th day of March One thousand nine hundred and thirty nine (1939).

3.The questions for determination as prayed for in the OS are as follows:

(iii) That it may be determined whether upon the true construction of cl 4 of the will of the testatrix the sum of $1,500 mentioned therein falls to be divided equally between:

(a) all the testatrix`s `natural and lawful` sons living at the date of death of the testatrix, or

(b) all the testatrix`s natural and lawful sons including the issue of any deceased `natural and lawful` son whether or not such `natural and lawful` son predeceased the testatrix, or

(c) all the testatrix`s `natural and lawful` sons including the estate of any deceased `natural and lawful` son whether or not such `natural and lawful` son predeceased the testatrix.

(iv) That it may be determined whether upon the true construction of cl 7 of the will of the testatrix -

(a) the gift of the balance of the jewellery, trinkets, wearing apparel and effects to Chua Boon Unn lapsed as he predeceased the testatrix, or

(b) if this honourable court shall be of opinion that the gift to the said Chua Boon Unn did not lapse then whether the gift falls to be divided between Chua Boon Yew, Chua Swee Eng and the estate of Chua Boon Unn; or

(c) if this honourable court shall be of opinion that the gift to the said Chua Boon Unn did not lapse then whether the gift falls to be divided between Chua Boon Yew and Chua Swee Eng and the lawful issue of Chua Boon Unn living at the date of death of the testatrix.

(v) That it may be determined whether upon the true construction of cl 8 of the will of the testatrix:

(a) the gift to the testatrix`s son Chua Boon Unn lapsed as he predeceased the testatrix, or

(b) if this honourable court shall be of the opinion that the gift to the said Chua Boon Unn did not lapse then whether Chua Boon Unn`s lawful issue living at the date of death of the testatrix are entitled to his share in residuary estate of the testatrix, or

(c) if this honourable court shall be of the opinion that the gift to the said Chua Boon Unn did not lapse then whether the estate of Chua Boon Unn would be entitled to his share in the residuary estate of the testatrix.

4.The testatrix executed the will on 16 March 1939 when she was 40 years old. By then, the testatrix had three sons and four daughters, all of whom had been born and were alive at the time the will was made. They were:

Date of birth	Age at the time the will was made	Age at the time of death of the testatrix
Sons
1 Chua Boon Peng	17.9.1918	20 yrs	77 yrs
2 Chua Boon Unn	4.9.1919	19 yrs	Died on 25 July 1992
3 Chua Boon Yew	13.5.1924	14 yrs	71 yrs
Daughters
1 Chua Swee Ee	13.8.1920	18 yrs	75 yrs
2 Chua Swee Lieu	24.8.1921	17 yrs	74 yrs
3 Chua Swee Sim	21.9.1922	16 yrs	73 yrs
4 Chua Swee Eng	5.12.1929	9 yrs	65 yrs

5.One of the sons, Chua Boon Unn, predeceased the testatrix. He died on 25 July 1992 leaving behind his widow, Mdm Fong Lai Wah, five daughters and one son, all of whom survived the testatrix and are still living (as at 15 November 1997, the date of affirmation of affidavit by Mr KS Chung). The lawful children of the deceased Chua Boon Unn and their ages (as at the date 26 February 1997 on which Mr John Chew affirmed his affidavit) are:

Name of Children	Sex	Age (as at 26 February 1997)
Chua Lian Eng	Female	54
Chua Bee Eng	Female	53
Chua Lee Eng	Female	49
Chua Tiang Hee	Male	45
Chua Soon Eng[commat]	Female	43
Chua Ming Yu
Chua Ghin Eng	Female	38

6.Because the lawful son of the testatrix, Chua Boon Unn, had died before his mother, the interpretation of the will had become less straightforward.

7.Substantial sums of moneys are involved and hence the parties wanted the court to determine the true construction of those clauses in the will to enable the executor to properly administer the estate and to avoid family conflict in future over the distribution of the assets in the estate.

8.Probate of the testatrix`s last will dated 12 February 1996 was granted by the High Court to British and Malayan Trustees Ltd as the executor named in the will. The net value of the assets was approximately $71.5m, the bulk of which were in 4.37 million Cycle and Carriage Ltd shares (valued then at $12.525 each for the purpose of the Estate Duty Act) and two time deposits of $16.5m. Jewellery amounted to some $254,500. Thus, the residue in the will swelled to become the major part of the assets for distribution by the time the testatrix died.

9. Section 26 of the Wills Act

Section 26 of the Wills Act (Cap 352, 1996 Ed) is relevant. It deals with the death of an issue during the lifetime of a testator and states as follows:

Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of that person shall die in the lifetime of the testator leaving issue, and any such issue of that person shall be living at the time of the death of the testator, that devise or bequest shall not lapse, but shall take effect as if the death of that person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

10.The above section is virtually identical with s 33 of the Wills Act 1837 in the United Kingdom (UK). Instead of the word `that` indicated in italics above, the UK Wills Act uses the word `such`. Apart from this, the rest of the words are the same. In substance, both provisions are similar. In fact, s 27 of the Wills Ordinance (Cap 53, Laws of the Straits Settlements, 1936) is word for word identical with s 33 of the UK Wills Act of 1837. Hence, both at the time the will was made and at the death of the testatrix, this particular provision was in force.

11.However, s 33 in the UK Wills Act 1837 was later amended by the Administration of Justice Act 1982 to the following:

(1) Where -

(a) a will contains a devise or bequest to a child or remoter descendant of the testator; and

(b) the intended beneficiary dies before the testator, leaving issue; and

(c) issue of the intended beneficiary are living at the testator`s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator`s death.

(2) Where -

(a) a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the testator; and

(b) a member of the class dies before the testator, leaving issue; and

(c) issue of that member are living at...