Re Will of Samuel Emily, deceased

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JC
• Judgment Date: 09 October 2001
• Neutral Citation: [2001] SGHC 299
• Docket Number: Originating Summons No 600373 of
• Date: 09 October 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: N Ganesan (N Ganesan & Associates)
• Citation: [2001] SGHC 299
• Defendant Counsel: Philip Loh (Philip Loh & Co),TPB Menon (Wee Swee Teow & Co),Chelva Rajah SC (Tan, Rajah & Cheah)
• Court: High Court (Singapore)
• Subject Matter: Admission of extrinsic evidence to determine intention of testatrix,Intestacy as to residuary estate,Will,Testatrix's intention,Charitable trusts,Will drafted in casual fashion with no residuary clause,Classification of charities,Charities,Bona vacantia,Names and addresses of charitable institutions not properly ascertained,Succession and Wills,Whether gifts fail for want of certainty,Construction,Gifts purportedly for charity,s 102 Evidence Act (Cap 97, 1997 Ed)

: This originating summons concerns the construction of the will of Emily Samuel (`the testatrix`) who passed away on 7 May 1999. The applicant, Mrs Ganesan n,e Cho Sui Lan, is the sole executrix and trustee (`the executrix`) named in the will. Probate has been granted to her by the subordinate courts. The estate has assets of some $1.759m. In addition, there is also a flat at 53B Lorong Stangee, Chapel Lodge, which was the testatrix`s residence.

	NAMES	AMOUNTS(S$)
	Donations for Charities
1.	Dr. Gopal Haridas Memorial	$	5,000.00
2.	Cancer Society	$	5,000.00
3.	Spastic Society of Singapore	$	5,000.00
4.	Methodist Home for the Aged
	c/o Wesley Methodist Church
	5 Fort Canning Road S`pore 0617	$	30,000.00
5.	Dr Chen Su Lan`s Home
	c/o Wesley Methodist Church	$	5,000.00
	5 Fort Canning Road S`pore 0617
6.	In memory of my friend the late
	Charlotte Lam Giok Wan
	c/o St Andrew`s Cathedral	$	50,000.00
	Anglican Home for the Aged
7.	Methodist Welfare Services
	1 St George`s Lane	$	5,000.00
8.	Kidney Foundation
	705 Serangoon Road, Singapore	$	5,000.00
9.	The Salvation Home	$	5,000.00
10.	For the Lam Family	$	250,000.00
11.	Miss Chong Yook Yin	$	10,000.00
12.	Pastors with letter of thanks	$	2,000.00
13.	Tea or lunch after Church Service and other costs to be paid
14.	St Luke`s Hospital	$	10,000.00
15.	I devise and give my flat at 53B Lorong Stangee, Chapel Lodge, Singapore to the Methodist Church - (Wesley) Fort Canning Road, Singapore absolutely with no Power to sell but to hold the said flat in trust and all rents accruing from the said flat is to be used to maintain and upkeep the said Church.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND TO MY WILL THIS 9TH DAY OF SEPTEMBER 1995.
SIGNED BY THE ABOVENAMED	)
TESTATRIX AS HER LAST	)
WILL AND TESTAMENT IN	)
THE PRESENCE OF HERSELF	)	(signed)
AND US WHO ARE UPON HER	)
REQUEST AND IN SUCH JOINT	)
PRESENCE HAVE SUBSCRIBED	)
OUR NAMES AS WITNESSES	)
(signed)		(signed)
. . . . . . . . . . . . . . . . .		. . . . . . . . . . . . . . . .. .
WITNESS		WITNESS

The will

The will made on 9 September 1995 reads:

I, Emily Samuel of 53B Lorong Stangee, Singapore declare this to be my last Will and Testament and I revoke all my former Wills and Testamentary Dispositions made by me hereafter. I appoint Cho Sui Lan to be Executrix and Trustee of my Will, and I direct her to carry out my wishes and intentions and follows:-

1. I direct the Executrix to inform the Pastor of the Wesley Church W.C.4 to give my last communion and pray for me. In the alternative to inform Siok Hong and her husband Suretta to inform the pastor likewise.

2. Upon my death insert in any newspaper the announcement of my death with just the date and time only of the Wesley Church services and announce in the press after the date of my Funeral a message of thanks to the Pastor of Wesley Methodist Church and friends who attended or helped at my Funeral.

3. After my death to arrange with Singapore Casket Company to buy a blue shroud, embalm my body, and subsequently cremate my body.

4. During the funeral Church Service, I direct that that following songs be sung in the Church i.e.

(1) "I LOVE THY KINGDOM LORD"

(2) "A WONDERFUL SAVIOUR IS JESUS MY LORD"

(3) "HOW GREAT THOU ART"

After all my wishes as above have been fulfilled and after payment of all my Funeral and Testamentary expenses and death duties, I give and bequeath all my monies as follows:-

All my money, whatever balance left after all expenses have been met with is to be given to the following:-

The originating summons

To ensure that all relevant parties are before the court, the executrix applied for and was granted an order appointing:

(1) Mr Chelva Rajah SC to represent items 1 to 5, 7 to 9 and 12 to 14 listed in the will;

(2) Mr Philip Loh to represent item 10 appearing in the will; and

(3) Mr TPB Menon to represent items 6 and 11 appearing in the will and the next of kin of the testatrix.

Mr N Ganesan, counsel for the executrix, also represents the Wesley Methodist Church.

The remaining prayers of this originating summons seek the determination of the court on whether the respective pecuniary legacies have failed on the ground of uncertainty or on the ground that the gifts in question are not charitable in nature and also seek the following relief:

(v) That it may be determined upon the true construction of clause 15 on page 3 of the Will of the Testatrix that the Flat 53B Lorong Stangee, Chapel Lodge Singapore is an absolute and outright gift to the "Westley Methodist Church" of No. 5 Fort Canning Road, Singapore and that the Flat be conveyed/transferred to the "Trustees of the Methodist Church in Singapore" subject to the trusts set out in the Will of the Testatrix.

(vi) That there is an intestacy as to the residuary estate of the Testatrix and that in default of distribution under section 7 of the Intestate Succession Act the Government shall be entitled to the residuary estate of the Testatrix.

(vii) Such further or other orders as this Honourable Court may deem fit to make.

(viii) The costs of all parties to these proceedings be taxed on an indemnity basis and be paid out of the residuary estate of the Testatrix.

(ix) Liberty to apply.

Executrix`s first affidavit

The executrix states in her affidavit that she has been advised that the gifts to items 1 to 5, 8, 9 and 14 in the will may be void for uncertainty as there are no charitable institutions with those names. She has also been advised that the gifts to items 6, 10, 11 and 12 in the will may be void for uncertainty or may not be charitable. Item 7 has been correctly described in the will but its registered office is at 11 Mount Sophia Blk B [num ]B1-01 Singapore and not at 1 St George`s Lane as stated in the will.

The testatrix had no relatives in Malaysia or in Singapore. As she did not provide a residuary clause in her will, the residuary estate would go to the state under the Intestate Succession Act.

Next of kin

An advertisement in English setting out the terms of the originating summons was placed on 14 May 2001 in The Straits Times in Singapore and in The New Straits Times in Malaysia inviting persons having any interest as next of kin of the testatrix to contact Mr TPB Menon. To date, no one has made any claim as such.

The state

The Attorney General`s Chambers and the Public Trustee`s office have been informed by the solicitors for the executrix about this originating summons. They have indicated they will not be participating in these proceedings.

Executrix`s second affidavit

In her second affidavit, the executrix elaborated on the relationship she had with the testatrix. She first came to know the testatrix in early 1938 while a student in a kindergarten at the Methodist Girls School in Malacca. The testatrix was her teacher and was living in the orphanage run by the Methodist Mission. She became very close to the testatrix as her elder sister also knew the testatrix. She learned that the testatrix was an orphan from a nearby rubber estate who had been living in the orphanage since she was two or three years old.

In late 1938, the testatrix moved to Singapore to take up nursing. She lived and worked at the then Outram Road General Hospital. In 1945, the executrix also followed this career path and became a colleague of the testatrix, who treated her like a younger sister and kept in practically daily contact until her demise.

The testatrix was a spinster and had no relatives in Malaysia or in Singapore. Before she made the will of 9 September 1995, the testatrix discussed with the executrix her desires and intentions concerning the various parties she wished to make bequests to. When she was decided on the list of beneficiaries, the executrix brought her to see the late Mr Haridas Ganesan, an advocate and solicitor and the husband of the executrix. He drafted the will.

They were unaware at that time of the accurate description and correct addresses of the beneficiaries. Accordingly, on 6 April 2000, after the death of the testatrix, a meeting of the representatives of the intended beneficiaries was held in the executrix`s present solicitors` office to ascertain their particulars.

In so far as item 10 (`the Lam family`) in the will was concerned, the executrix knew that the testatrix was a close friend and colleague of the late Charlotte Lam. They had jointly purchased a house at 26 Siglap Hill and lived there together. When Charlotte Lam passed away in 1982, the testatrix became the sole owner through the right of survivorship. The house was sold in 1994 at a huge profit.

The testatrix had often mentioned to the executrix that she wanted to leave some money for Charlotte`s siblings. There were five such siblings but one has since passed away on 12 October 1999 (ie after the testatrix`s death on 7 May 1999). The testatrix intended that the $250,000 bequest be shared by the five siblings equally. They are:

(1) Michael Lam;

(2) Beatrice Lam;

(3) Winifred Lam;

(4) David Lam; and

(5) Lam Peng Seng (deceased).

The testatrix attended Wesley Methodist Church at Fort Canning Road with the executrix regularly for more than 30 years. The testatrix intended to reward all the pastors for their devotion and commitment to the Church by giving them $2,000 each.

The testatrix intended to give her flat at 53B Lorong Stangee to the said church. The executrix has ascertained from the representatives of the Church that the proper party to be holding the title to the property ought to be `The Secretary of the Trustees of the...