TCZ v TDA, TDB and TDC

CourtFamily Court (Singapore)
JudgeShobha G. Nair
Judgment Date20 May 2015
Neutral Citation[2015] SGFC 63
Citation[2015] SGFC 63
Docket NumberOSM 12 of 2015
Publication Date09 September 2015
Plaintiff CounselP/C: Mr Ramachandran Doraisamy Raghunath (Selvam LLC)
Defendant CounselD/C: Mr Liow Wang Wu Joseph (Straits Law Practice LLC),Sitting in Mr Eugene Thuraisingam (Eugene Thuraisingam LLP)
SubjectMental Capacity Act,revocation of will - undue influence,best interests of patient,power to execute a statutory will
District Judge Shobha G. Nair:

When section 23(1)(i) of the Mental Capacity Act (Cap 177A) was drafted, various situations were envisaged, inter alia, where a mentally incapacitated individual with a large estate and no will detailing its distribution on his death, may have his assets dealt with under intestacy laws, possibly thereby, lending itself to outcomes which may cause discomfort amongst family members - the very family that may be tasked to look after him.1 The case before this Court was anything but typical. It presented a wide range of questions, from the scope of the Mental Capacity Act to the manner in which evidence ought to be garnered and hearings conducted. At the same time, it called for a reflection on the spirit of the Act specifically, and the purpose of the law, generally.

Background - A meeting of two worlds

P is an 88 year old widow with a considerable fortune, estimated to be S$35 million. Coming from a wealthy family based in Indonesia, she was educated in Australia and worked in Singapore as a physiotherapist. She was married to a medical doctor, B, who gained considerable financial wealth from his medical practice and sound investments. The couple was known as happy and loving with a common interest and taste for art and travel. They were philanthropists, sharing a common desire to assist in various causes including that relating to children and animals. After more than 40 years together, Dr B passed away in 2007. The couple did not have children and P’s only living relative in Singapore (from her immediate family) is a sister by the name of TDC. TDC’s daughter is TCZ, a lady of 61 years of age and the plaintiff in the present case.

A lady by the name of TDB featured significantly in this story. She is an unmarried retired teacher of 84 years of age and a close family friend of P and the late Dr B. She stayed with the couple at their home from 2004 on the request of the couple. Dr B was in poor health at the time and wheelchair bound. According to TDB, Dr B wanted her to look after his wife as the latter had begun to show signs of “forgetfulness and mental deterioration”.2

In 2005, TDB met TDA when she toured China. He was a tour guide at the time and is currently 40 years of age. It was her evidence that TDA kept in touch with her after that trip and they met casually whenever he was in Singapore.

In 2008, a year after Dr B’s passing, TDB and P planned a trip to China. It was TDB who contacted TDA and requested that he act as their tour guide. After that trip, TDA continued contact with P and had long conversations with her.3 TDB saw this as somewhat strange given that TDA was a recently married young man. TDA claimed that it was P who kept contact with him.

Sometime in March 2009, TDA came to Singapore and P. He set up a company known as “xxx Pte Ltd” with P’s residence at xxx as its registered address. Both P and TDA were named as directors of the company with TDA holding 9000 shares and P holding 1000 shares. He visited P again in July and September 2009. In September 2009 TDA received permanent residency in Singapore. His residence was listed on relevant documents as the home of P.

It was the evidence of TDB that TDA had requested P to sponsor his stay in Singapore under the pretext of wanting to learn English at a language school here. The course fees of S$4,000 was paid for by P. He stayed with her from 2009 until the time TCZ removed her aunt from the home to live with her. This was in 2014. P continues to reside with TCZ today.

TDA stated that between 2009 and 2011, TDB behaved in an intolerable way such that she began to make plans to leave the home. She stated that in October 2009, P and TDB set up investment accounts with the Overseas-China Banking Corporation (OCBC) and deposited monies into a fund called “The Lion Fund”. P had a sole account into which she deposited S$3 million. The two ladies opened a joint account into which TDB deposited S$200,000. The intention of this joint account was to meet TDB’s expenses and should anything happen to her, P could use the same. When TDB applied at one time to use the funds from the joint account she held with P,4 she was told that there were no monies in that account. She informed P who then attempted to put monies back into that account from another DBS account she held. The cheque which was issued by P bounced due to an insufficiency of funds in that account. This prompted the two ladies to call on TDA to take them to the OCBC bank. At the bank, TDA carried out a transfer to return the funds to TDB. At this point, it became apparent to TDB that TDA had control over P’s monies and that this was unknown to P. Although TDB contemplated making a police report, she decided against the idea and instead, moved out of the home in August 2011.

In July 2013 TDA’s wife and children, together with their parents, came to Singapore and lived with him at P’s home. In August 2013 the parents returned to China.

In April 2014, P was diagnosed with dementia. Upon learning of this, TCZ sought to obtain an order allowing her to act as deputy for her aunt in order to take care of the latter’s personal welfare, property and affairs. When a search was made to ascertain if there were any existing powers of attorney, it was revealed by the Office of the Public Guardian that a Lasting Power of Attorney (LPA) had been registered appointing TDA as donee of such powers. This came as a shock to TCZ. The LPA was registered on 6 July 2012. Shock turned into horror when TCZ discovered that a will was executed by P on 16 December 2010 bequeathing all her assets to TDA. She was of the view that this did not square with what she knew of her aunt and her late uncle, both of whom were always committed to charitable causes.

The series of events triggered an investigation into the state of P’s assets. As at February 2014, two months before the medical declaration of P’s mental incapacity, there were no funds in P’s foreign currency accounts held with OCBC. It was TCZ’s position that her aunt’s jewellery had gone missing and many pieces of art work had disappeared from her collection. On being asked where these pieces were, P was not able to account for it.5 Pursuant to an application via OSFxxx/2014, TCZ was granted limited powers to institute legal proceedings against TDA in P’s name for, inter alia, breach of his fiduciary duties under the LPA and for damages arising from the misappropriation of P’s assets. Under Suit No. xxx/2014 TCZ successfully obtained a High Court order in August 2014 prohibiting TDA from disposing P’s assets worldwide. Further applications were taken out against TDA’s family members but nothing turns on that for purposes of the matter before this Court.

In September 2014 P applied to revoke her LPA. Given uncertainty surrounding her mental capacity to do so, the Office of the Public Guardian sought directions from this court. The applications in this regard were filed via OSMxxx/2014 and after a hearing, this court allowed the revocation of the LPA. It was a finding of the court that while P could make decisions with regards limited matters pertaining to her personal welfare, she did not have the ability to make decisions on larger issues relating to the management of her assets. This finding was based to a large extent on expert medical opinion.

A clash of wills

The present application was for the execution of a will on behalf of P under section 23(1)(i) of the MCA (statutory will). A draft statutory will was presented to the Court for endorsement. While TDA contested the application, TDC and TDB, also named beneficiaries of $500,000 each, consented to the same. During the course of the hearing, they had through their counsel indicated that they were prepared to have the money proposed to be given to them be given to charity instead if the Court had any concerns.6 Having considered the evidence I allowed the application for the execution of a will on behalf of P but made amendments to the amounts TDB and TDB would benefit under the statutory will.

The Court was presented with information on the existence of previous wills and this provided the court with an insight into the mind of P when she was in relatively better health.

Will of 1989

In October 1989, Dr B and P executed separate wills with similar terms. The beneficiaries of P’s estate were as follows: P’s brother–in-law was to receive $500 000; Money in a fixed deposit account (of unknown amount) in the joint names of P, Dr B and TDB was to be given to TDB; A trust to be called the “xxx Trust Fund” was to be set up from the residuary estate and the monies applied on a rotation basis to various charities including the Community Chest of Singapore, The Singapore Prevention of Cruelty to Animals, The Nursing Foundation of Singapore, the Cultural Foundation of Singapore, the Singapore Zoological Garden and the Singapore Symphony Endowment Fund.

Unexecuted Will of 2009

Mr C, a lawyer in private practice, filed an affidavit speaking of his professional dealings with the late Dr B and P. It was in 2004 when he was approached by a real estate firm to act for Dr B who wished to sell one part of the land on which his home still sits. The hospitality of the couple soon turned a professional relationship into a more personal one with C joining them for lunches and visiting them often.7

After Dr B passed away, C continued to visit P. She in turn, would call on him if she needed any help. She sought his help to handle probate matters in 2008 and asked also that he assist her in the making of a new will. All the meetings were held at her home. According to the lawyer, it was her intention to update her will of 1989.

As C was not familiar with probate practice, he sought the assistance of another lawyer at his firm – Mr D. On 4 December 2008 both lawyers met P at her home and D gave evidence that he was instructed by P to...

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