Tan Wei Leong v Tan Lee Chin and others

• Jurisdiction: Singapore
• Judge: Andrew Ang SJ
• Judgment Date: 17 June 2020
• Neutral Citation: [2020] SGHC 124
• Published date: 23 June 2020
• Docket Number: Suit No 904 of 2017
• Year: 2020
• Hearing Date: 24 February 2020,02 December 2019,27 November 2019,28 November 2019,29 November 2019,26 November 2019,25 November 2019
• Plaintiff Counsel: Chan Kia Pheng, Chan Junhao, Justin (Chen Junhao), Leo Zhi Wei (Liang Zhiwei) and Yong Walter (LVM Law Chambers LLC)
• Citation: [2020] SGHC 124
• Defendant Counsel: The third defendant unrepresented.,Choh Thian Chee Irving, Kor Wan Wen, Melissa and Wong Chooi Teng, Sarah (Optimus Chambers LLC),Gurbani Prem Kumar (Prem Gurbani) (instructed) and Lim Min, Isabel (Gurbani & Co LLC)
• Court: High Court (Singapore)
• Subject Matter: Distribution of assets,Probate and Administration,Intestate succession

Andrew Ang SJ:

It is uncontested between the parties that the instant dispute centres on a Deed of Family Arrangement signed in May 2012 (the “DFA”) and whether there is basis for that DFA to be set aside. The plaintiff seeks a declaration that the DFA is valid and binding, while the two living defendants (the “defendants”) argue that it ought to be set aside. In this regard, it is appropriate to begin with the broad definition of a family arrangement set out by Sundaresh Menon CJ in Kuek Siang Wei and another v Kuek Siew Chew [2015] 5 SLR 357 (“Kuek Siang Wei”) at [45]:

… There does not appear to be a precise definition of this term; but in our judgment, stated broadly, it refers to an agreement between members of the same family which is intended to be generally and reasonably for the benefit of the family … The parties to a family arrangement act not just out of self-interest, but also in furtherance of the interest of the family unit to which they belong. Often, this means that one or more of them might sacrifice their own interests for what they perceive to be the greater good of the family. [emphasis in original]

The plaintiff is the younger brother of the two living defendants. Notwithstanding the lofty references to self-sacrifice and the furtherance of the interest of the family unit in the definition above, it is difficult to see how the living litigants have conducted themselves in line with such ideals. The DFA has been quarrelled over in a manner more akin to squabbling, and it is in many senses regrettable that an instrument supposed to create harmony has instead engendered such bitterness.

Given that the instant dispute is situated in the family context, there is unsurprisingly an absence of comprehensive documentation as to the parties’ intentions. In other words, documents-wise there is no proverbial smoking gun which is able at a stroke to illuminate the truth or falsity of the matter. This is unsurprising; as observed by the court in Pek Nam Kee and another v Peh Lam Kong and another [1994] 2 SLR(R) 750 at [108], family arrangements are often “founded on sentiment rather than commerce”. Given the absence of clear and reliable documentation from which the parties’ intentions can be gleaned, much will turn on the circumstantial evidence and the credibility of the parties’ accounts.

Background

A brief outline of the relevant facts is as follows.

The plaintiff, Tan Wei Leong, is the youngest of three siblings. The first defendant, Tan Lee Chin, is the second sibling, and the second defendant, Tan Wan Fen, is the oldest of the three.¹ Their father is the late Tan Seng @ Tan Chit Boh (“Mr Tan”), and their mother is the late Lai See Moi @ Lai Meow Ching (“Mdm Lai”). Mr Tan passed away on 8 February 2012, while Mdm Lai passed away on 10 October 2016. Both Mr Tan and Mdm Lai passed away intestate. Mr Tan and Mdm Lai were each other’s only spouses, and the plaintiff, first defendant, and second defendant were their only children.

During his life, Mr Tan was a successful businessman. He accumulated assets in China, Malaysia, and Singapore. The assets in China (collectively, the “Chinese Assets”) included two housing units in Xiamen and an 88% shareholding in Marco Polo Food (Xiamen) Co, Ltd, a company registered under the laws of the People’s Republic of China.²

Mdm Lai was a housewife for most of her life. She was financially supported by Mr Tan.³

Shortly after Mr Tan’s death, it came to light that Mr Tan had instructed Mr William Ong of Allen & Gledhill LLP (“Allen & Gledhill”) (“Mr Ong”) to prepare a will.⁴ The first meeting between Mr Tan and Mr Ong had taken place on 10 January 2011. A series of drafts had been prepared. At the time of Mr Tan’s passing, none of the drafts, including the most recent (Version 4a), had been executed by Mr Tan. In fact, it was Mr Ong’s uncontested evidence that Mr Tan had not even seen the last version of the draft will before he was admitted to the hospital for the final time prior to his death.

That draft will provided, inter alia:⁵ that the plaintiff was to be the “sole Executor and Trustee” of the will; and that the trustee of Mr Tan’s estate would “sell call in and convert into money all such parts of the same as shall not consists of money”, and “divide the net proceeds of such sale … into twelve (12) equal parts and to hold the same IN TRUST as follows” [emphasis in original]: six such parts for the plaintiff absolutely; two such parts for Mdm Lai; two such parts for the first defendant; and two such parts for the second defendant.

Following Mr Tan’s passing but prior to the release of his draft will by Mr Ong, the DFA came into existence. The parties to the DFA were the plaintiff, the first defendant, the second defendant, and Mdm Lai. The salient terms of the DFA included the following:⁶

… Although none of the Parties have seen or have a copy of the Draft Will, the Parties nevertheless believe that the Draft Will sufficiently and accurately contains and sets out the Deceased’s testamentary wishes, and they wish to give effect … to the Draft Will.

…

[I]nsofar as the Draft Will provides for any bequest, devise, legacy, appointments or other testamentary disposition of any property or asset which forms part of the Deceased’s Estate in favour of any of the Parties hereto, all Parties shall be bound by the provisions of the Draft Will, and the Parties undertake to comply with and perform the Draft Will ...

…

Madam Lai shall, unless she decides otherwise, be the sole applicant to apply to the court or courts having the necessary jurisdiction to issue grant of letters of administration (or the equivalent court order in such jurisdiction) for the issue of the necessary grant in her favour to be the administratrix of the Deceased’s Estate.

Ms Lisa Sam of Lisa Sam & Company (“Ms Sam”) was initially approached to prepare the DFA. She prepared a first draft. Subsequently, Mr Goh Kok Yeow of De Souza Lim & Goh LLP (“Mr Goh”) prepared the final draft.⁷

The plaintiff, second defendant, and Mdm Lai signed the DFA on 18 May 2012, while the first defendant signed it on 24 May 2012. The signing on 18 May 2012 was witnessed by Mr Goh and Mr Cedric Tay, an advocate and solicitor of the Supreme Court of Singapore who translated the contents of the DFA to Mdm Lai.⁸ The signing on 24 May 2012 was witnessed by Mr Goh.

Following the signing of the DFA, two supplemental deeds were entered into. Their details are as follows:⁹ The first supplemental deed dated 27 September 2012 related to the holding of the net sale proceeds of a condominium unit at Blue Horizon by Mdm Lai on trust for the beneficiaries according to the draft will. The second supplemental deed dated 25 June 2014 related to the distribution of Mr Tan’s Chinese Assets. Under the terms of the second supplemental deed, the living litigants expressly agreed to waive their inheritance rights to the Chinese Assets. This was done so that legal title to the Chinese Assets would be transferred into Mdm Lai’s sole name for distribution under the terms of the draft will thereafter.

A copy of the draft will was disclosed by Mr Goh to Mdm Lai about two years later on 23 May 2014 even though he had received the same much earlier on 19 November 2012.¹⁰ It is uncontested that on 23 May 2014, Mr Goh showed only Mdm Lai a copy of the draft will and explained the terms to her.¹¹ Mr Goh’s uncontested evidence was that he had not shown a copy of the draft will to any of the living litigants.

On 10 October 2016, Mdm Lai passed away. In May 2017, the first defendant commenced legal proceedings in China (“the China proceedings”) for the distribution of one-third of the Chinese Assets to himself. On 29 September 2017, this suit was commenced by the plaintiff with the second defendant initially as co-plaintiff.¹² Their pleadings sought declaratory relief to the effect that, inter alia, the DFA constituted a valid and binding family arrangement between the three siblings in relation to all of Mr Tan’s assets.

On 3 August 2018, the draft will was disclosed to the second defendant (at that point the second plaintiff). Thereafter, she had herself removed as co-plaintiff and added as the second defendant instead. On 8 February 2019, Mdm Lai’s estate was added as third defendant to the suit.

The applicable law The DFA

The primary legal framework which arises on these facts is that of the family arrangement. The nature of the family arrangement has already been set out by the Court of Appeal in Kuek Siang Wei ([1] supra), and I do not propose to elaborate further on the topic. Suffice it to say that it is clear that the instant facts concern precisely the situation envisaged at [55] of Kuek Siang Wei, that:

Yet another category of agreements which are generally treated as family arrangements are those entered into between the surviving descendants of a deceased person to give effect to testamentary wishes which the deceased expressed before his death in a manner that is not and cannot take effect as a will.

Having accepted that the instant case concerns a family arrangement, I note also Menon CJ’s further observation in Kuek Siang Wei at [59] – [62] that:

At the outset, it should be noted that there are strong public policy considerations in favour of encouraging family arrangements as they go towards preserving peace, harmony and unity in families. One effect which flows from this is that an agreement which is found to be a family agreement, assuming it is reduced into writing, will not be interpreted with an excessive degree of formalism. Rather, the court will apply the rules of construction to ascertain the parties’ intentions and, so far as possible, endeavour to give effect to them …

…

In essence, it may be said that the most important effect which flows from holding that an agreement is a family arrangement is that the agreement will...