Tan Susie v Polo Wong Keng Lim (executor and trustee of the Will of Tan Shirley dated 13 December 2007)

• Jurisdiction: Singapore
• Judge: Ng Tee Tze Allen
• Judgment Date: 04 June 2021
• Neutral Citation: [2021] SGDC 100
• Court: District Court (Singapore)
• Hearing Date: 29 April 2021,18 March 2021
• Docket Number: District Court Originating Summons 136 of 2019
• Plaintiff Counsel: Han Kee Fong and Joseph Tham Chee Ming (Tan Rajah & Cheah)
• Defendant Counsel: Gong Chin Nam (Hin Tat Augustine & Partners)
• Subject Matter: Contract,Privity of contract,Equity,Remedies,Insurance,General principles,Claims,Contest between nominated beneficiary and estate over moneys from insurance policies,Probate And Administration,Distribution of assets,Trusts,Constructive trusts
• Published date: 26 June 2021

District Judge Ng Tee Tze Allen:

In 1995, the late Ms Shirley Tan (the “Deceased”) made a revocable Life Insurance Policy No. XXX (the “HSBC Policy”). The plaintiff, Ms Tan Susie, was nominated its sole beneficiary (the “Nomination”). After the Deceased passed away, HSBC Insurance (Singapore) Pte Limited (“HSBC”) paid the sum of S$197,324.67 (the “HSBC Proceeds”) to the defendant, Mr Polo Wong, in his capacity as the executor of the Deceased’s estate. In so doing, HSBC discharged its liability under the HSBC Policy.

Competing claims have been made for the HSBC Proceeds. The plaintiff claimed the HSBC Proceeds on the basis of the Nomination. The defendant claimed the HSBC Proceeds for the estate on the basis that the Nomination was superseded by the wills that the Deceased made subsequently. He also argued that the Nomination did not give the plaintiff any right to the HSBC Proceeds in any event.

Having considered the evidence and the parties’ submissions, I dismissed the plaintiff’s claim.

Background facts

The following facts are undisputed unless otherwise stated.

On 20 September 1995, the Deceased applied for HSBC Policy through her insurance agent, Ms Wong Sze Keed (“Ms Wong”). ¹ The HSBC Policy was issued on 27 December 1995 and it took effect from 1 January 1996.² The plaintiff was nominated the sole beneficiary. In this respect, the HSBC Policy provided:

“The Beneficiary is as designated in Schedule Part II unless subsequently changed as provided for under the Change of Beneficiary clause.

Unless specifically provided otherwise, the interest of any Beneficiary who predeceases the Life Insured shall vest in the Insured”³

The Deceased could change the beneficiary by filing a written notice satisfactory to HSBC. If she did so, the change would take effect only if HSBC recorded the change. The Change of Beneficiary clause reads:

“During the lifetime of the Life Insured and while this policy is in force, the Insured may, by filing written notice satisfactory to the Company, change the Beneficiary of this policy.

A change of Beneficiary shall be effective only if recorded by the Company. When the Beneficiary is so changed, it will be deemed effective as of the date the notice is signed whether or not the Life Insured is living at the time of such recording.”⁴

The Deceased did not file a written notice per the Change of Beneficiary Clause.

In 2005, the Deceased contacted Ms Wong. According to Ms Wong, the Deceased told her that she (i.e. the Deceased) intended to leave her money to the defendant. Ms Wong told the Deceased that she could do so by making a will.⁵

On 22 August 2005, the Deceased executed a will (the “2005 Will”).⁶ Therein, she revoked all former wills, codicils, and testamentary dispositions, and provided for the distribution of her assets.

On 13 December 2007, the Deceased executed a second will (the “2007 Will”).⁷ The parties agreed that this is the Deceased’s last will and testament. Therein, the Deceased revoked all former wills, codicils, and testamentary dispositions, provided for the distribution of her property, and appointed the defendant as the executor and trustee. The 2007 Will made no express reference to any of the Deceased’s insurance policies.

On 18 August 2016, the Deceased passed away. On 21 December 2017 the defendant extracted the Grant of Probate as the Deceased’s sole executor.⁸

In or around January 2018, HSBC paid the HSBC Proceeds to the defendant in his capacity as the executor and trustee of the Deceased’s estate. The defendant signed a Voucher of Discharge to discharge HSBC, from all further liability under, amongst other policies, the HSBC Policy.

On 21 August 2018, the plaintiff’s solicitors to wrote to the defendant to request, amongst other things, that the defendant “account and pay to [them] as Solicitors for [the plaintiff] the [HSBC Proceeds] as soon as possible and in any event within 14 days from the date hereof”.⁹

The defendant refused and the plaintiff sued.

The parties’ cases

The plaintiff’s claim to the HSBC Proceeds rested on her nomination as the sole beneficiary in the HSBC Policy. She sought amongst other things: a declaration that the defendant received the HSBC Proceeds from the HSBC as trustee for the plaintiff; and payment of the HSBC Proceeds to her.

The defendant resisted the plaintiff’s claim. He argued that: The plaintiff was no longer the beneficiary to the HSBC Policy because: the Nomination was revoked when the Deceased executed the 2005 Will and/or the 2007 Will; and the beneficiary of the HSBC Policy was changed pursuant to the Change of Beneficiary Clause when the defendant submitted the Grant of Probate and the 2007 Will to HSBC. In any event, the plaintiff acquired no legal / equitable right to the HSBC Proceeds pursuant to the Nomination.

To succeed, the plaintiff needed to remain a beneficiary to the HSBC Policy and have acquired a legal / equitable right to the HSBC Proceeds under the Nomination. However, I found that she succeeded only on the first issue, but not the second.

The plaintiff remained the Nominated Beneficiary of the HSBC Policy No revocation of Nomination

I started by considering the argument the Nomination was revoked by the 2005 Will and / or the 2007 Will.

As a preliminary point, both parties accepted that s 49M of the Insurance Act (Cap 142, 2002 Rev Ed) did not apply.¹⁰ I agreed. Broadly speaking, and amongst other things, s 49M permits a policy owner to revoke a nomination of a “relevant policy” (as defined in s 49K) by will if the nomination was made in the prescribed form (i.e. Form 4 of the Insurance (Nomination of Beneficiaries) Regulations 2009): see s 49M(2) of the Insurance Act (Cap 142, 2002 Rev Ed) read with reg 3(2) and Form 4 of the Insurance (Nomination of Beneficiaries) Regulations 2009.

If the nomination is in the prescribed form, the policy owner can revoke it by making a will in accordance with the Wills Act (Cap 352, 1996 Rev Ed) which: provides for the disposition of all death benefits under the policy; and specifies the prescribed particulars of the policy: see s 49M(7)(b) of the Insurance Act (Cap 142, 2002 Rev Ed) read with reg 5(3) of the Insurance (Nomination of Beneficiaries) Regulations 2009.

In the present case, while the HSBC Policy was a “relevant policy”, the Nomination was not in the prescribed form. Further, neither the 2005 nor the 2007 Wills specified the prescribed particulars of the HSBC Policy. Instead, they had the following revocation clause:

“I revoke all former Wills, Codicils and Testamentary dispositions hereto before made by me and declare this to be my Last Will and Testament”

As such, the defendant could not (and did not) rely on s 49M to argue that the Nomination was revoked. Instead, he argued that: The Deceased was entitled to revoke the Nomination by making a will because s 3(1) of the Wills Act (Cap 352, 1996 Rev Ed) provided that every person may “devise, bequeath or dispose of by his will … all real estate and all personal estate”:

Property disposable by will

3.—(1) Subject to the provisions of this Act, every person may devise, bequeath or dispose of by his will, executed in the manner required under this Act, all real estate and all personal estate which he shall be entitled to either at law or in equity at the time of his death. The Nomination was a testamentary disposition because the HSBC Policy is a life insurance policy and the HSBC Proceeds are “payable only upon the [Deceased’s] death”.¹¹ He argued that Re Barnes Ashenden v Heath [1940] 1 Ch D 267 (“Re Barnes”) supported him because Farwell J “took the view that the power given to a member of a registered society to nominate a person to whom his property in the society shall be transferred at his decease is in its nature testamentary.”¹² As the 2005 and/or 2007 Will contained the revocation clause that revoked all earlier testamentary dispositions, the Nomination was revoked.

In my judgment, little turned on whether the revocation clause in the 2005 Will or the 2007 Will was the operative clause. As both wills had the same revocation clause (see [20] above), assuming the revocation clause had that effect, the Nomination would have been revoked regardless. As such, the key issues were: whether s 3 of the Wills Act (Cap 352, 1996 Rev Ed) applied; and whether the Nomination was a “testamentary disposition” which fell within the ambit of the revocation clause.

On the first issue, I did not think that s 3 of the Wills Act (Cap 352, 1996 Rev Ed) assisted the defendant. I accepted the plaintiff’s submission that s 3 applied only to assets and properties that belonged to the testator, but this was not the case here. The HSBC Proceeds did not belong to the Deceased. Until they were paid, the HSBC Proceeds belonged to the HSBC. The Deceased’s right was to enforce the terms of the HSBC Policy. In this respect, the terms of the HSBC Policy also did not give the Deceased any right to receive the HSBC Proceeds. In her Proposal for Life Insurance, the Deceased nominated the plaintiff as the beneficiary and HSBC agreed to insure the Deceased on this basis. As such, unless she had invoked the Change of Beneficiary clause, the Deceased could only compel HSBC to pay the HSBC Proceeds to the plaintiff. However, she did not invoke the Change of Beneficiary clause in her lifetime.

On the second issue, I did not agree that the Nomination was a “testamentary disposition”. It is trite that a testamentary disposition can only dispose of property belonging to the testator at the time of his death: Williams on Wills (Butterworths, London, Dublin, Edinburgh, 8th Ed, 2002) at para 7.17. However, for the reasons above, the Deceased was not disposing of her property. Indeed, Re Barnes is distinguishable for this reason. Unlike the present case, there was no...