Tan Pwee Eng v Tan Pwee Hwa

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 27 August 2010
• Neutral Citation: [2010] SGHC 258
• Plaintiff Counsel: Gopalan Raman (G R Law Corporation)
• Docket Number: Originating Summons No 5 of 2010; (Registrar’s Appeal Subordinate Courts No 61 of 2010)
• Date: 27 August 2010
• Hearing Date: 07 July 2010,26 May 2010
• Subject Matter: Succession and wills
• Year: 2010
• Citation: [2010] SGHC 258
• Defendant Counsel: Lucy Netto (Netto & Magin)
• Court: High Court (Singapore)
• Published date: 03 September 2010

Lee Seiu Kin J: Introduction

This is an appeal against the decision of the district judge against his dismissal of the appellant’s application for a declaration that a nuncupative will made by the late Tan Kiok Lan (“TKL”) on 16 July 2009 was her last will and testament. The sole issue in this appeal is whether a nuncupative or oral will is valid under the Wills Act (Cap 352, 1996 Rev Ed)(the “Wills Act”). In my judgment, it is not, for the reasons set out below.

The material facts are not in dispute. TKL passed away on 30 July 2009 and was survived by five children. The appellant is the fourth child and was TKL’s sole caregiver up until the time of TKL’s death. The respondents are the remaining four of TKL’s children.

In 2009, in anticipation of TKL’s death, the appellant enlisted the services of Wills and Trusts Pte Ltd (the “Company”) for TKL to make her will. The appellant asserted that this was done on TKL’s instructions, but the respondents asserted otherwise. They contended that TKL gave no such instructions and that the draft was done without her knowledge and consent. In the alternative, one of the respondents (Tan Pwee Hwa @ Lim Pwee Hwa) also contended that her “late mother was very ill when the purported instructions were given for the alleged draft [w]ill”. Whatever may have been the case, the issue of her testamentary capacity is, in the event, immaterial in this appeal and it is unnecessary for me to go further than pointing out the existence of such a disagreement.

Nevertheless, it is not disputed that instructions for a will was given on 16 July 2009 under the following circumstances. On that day, an associate of the Company, Pan Sing Fong (“Pan”), visited TKL and took her instructions on the will to be drawn up. Because TKL’s health was failing, the appellant adduced a letter obtained from the doctor attending to TKL, who certified that TKL was “of sound mind and rational”. Presumably this letter was meant to prove that TKL had the requisite testamentary capacity when she gave her instructions regarding her will. Pan made notes of TKL’s instructions and returned to his office to prepare the will. On 24 July 2009, Pan visited TKL with the draft will for execution. However Pan found that TKL was tired and sleepy, and he felt that it was imprudent to ask her to sign the draft will. He decided to return another day.

Unfortunately that opportunity never arose. On 30 July 2009, TKL passed away and, in the event, the draft will was not executed. It is with reference to this unexecuted draft will (“the Draft Will”) that the appellant now seeks a declaration. The appellant argued that the instructions TKL gave to Pan amounted to a nuncupative will and the resulting Draft Will comprised the details of that nuncupative will. The appellant asked that the Draft Will be declared TKL’s last will and testament.

The appellant’s counsel submitted that the Draft Will amounted to a nuncupative will, or evidence of it. The first question is, what is a nuncupative will? In L B Curzon, Dictionary of Law (Pitman Publishing, 4th Ed, 1983) it is defined in the following manner:

Nuncupative will. (Nuncupare = to name, declare.) A verbal testament. Abolished under the W.A. 1837, s.9, except in the case of privileged wills (q.v.) made by those on active service.

The Statute of Frauds 1676 (AD 1676 Cap III) (UK) (“Statute of Frauds”) altered the law regarding the validity of nuncupative wills by restricting its scope. Section 19 thereof provides as follows: XIX. And for Prevention of fraudulent Practices in setting up Nuncupative Wills, which have been ‘the Occasion of much Perjury;’ (2) Be it enacted by the Authority aforesaid, That from and after [24 June 1677] no Nuncupative Will shall be good, where the Estate thereby bequeathed shall exceed the Value of thirty Pounds, that is not provided by the Oaths of three Witnesses (at the least) that were present at the Making thereof; (3) nor unless it be proved that the Testator at the Time of pronouncing the same, did bid the Persons present, or some of them, bear Witness, that such was his Will, or to that Effect; (4) nor unless such Nuncupative Will were made in the Time of the last Sickness of the Deceased, and in the House of his or her Habitation or Dwelling, or where he or she hath been Resident for the Space of ten Days or more next before the making of such Will, except where such Person was surprized or taken sick, being from his own Home, and died before he returned to the Place of his or her Dwelling.

It would appear that prior to the enactment of the Statute of Frauds, nuncupative wills, which merely describes oral wills, had been the subject...