Tda v Tcz and Others

• Jurisdiction: Singapore
• Judgment Date: 12 April 2016
• Date: 12 April 2016
• Docket Number: HCF/District Court Appeal No 62 of 2015
• Court: High Court (Singapore)

TDA

and

TCZ and others

[2016] SGHC 63

Judith Prakash J

HCF/District Court Appeal No 62 of 2015

High Court

Civil Procedure — Appeals — Circumstances under which appellate court would interfere with lower court’s exercise of discretion — Testator’s niece alleging undue influence exercised on testator by non-relative beneficiary — District judge exercising discretion against converting to writ action or ordering cross-examination — Whether district judge’s decision clearly wrong and worked an injustice — Rule 512(1) Family Justice Rules2014 (S 813/2014)

Civil Procedure — Originating processes — Continuation of action commenced by originating summons as if it had been commenced by writ — Testator’s niece alleging undue influence exercised on testator by non-relative beneficiary — Whether conversion to writ action necessarily appropriate where allegations of undue influence made — Whether non-relative beneficiary had raised sufficient factual dispute — Whether non-relative beneficiary had made election to forgo conversion to writ action or cross-examination — Rules 512(1) and 590(3) Family Justice Rules 2014 (S 813/2014)

Mental Disorders and Treatment — Person lacking testamentary capacity — District judge ordering statutory will to be drawn up without benefit of oral testimony

— Whether decision could be impugned due to lack of oral testimony — Section 23(1)(i) Mental Capacity Act (Cap 177A, 2010 Rev Ed)

[P] (“P”) made a will in 2010 (“the 2010 Will”) in favour of the appellant, a non- relative who had befriended P and subsequently lived with her as her ostensible caretaker. The respondent, P’s niece, applied under s 23(1)(i) of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”) to obtain court sanction to make and seal a statutory will on the part of P, who at that time lacked testamentary capacity. The district judge (“the Judge”) hearing the application considered that the best interests of P would be served by substantially reverting to an earlier will which P had made. She therefore granted the application andordered the statutory will to be made. The appellant was not a beneficiary of the statutory will.

The appellant was dissatisfied, taking the view that because the matter involved disputes of fact and allegations of undue influence the Judge should not have decided the application summarily, but should instead have converted the application to a writ action, called as witnesses two persons who had not filed affidavits, or ordered that the respondent’s witnesses be cross-examined. The appellant filed this appeal seeking to have the Judge’s decision set aside and the

matter remitted to her for a retrial at which witnesses could be called and cross- examined.

Held, dismissing the application:

(1) Proceedings under the MCA are governed by the Family Justice Rules

2014 (“the FJR”). A judge’s exercise of powers under rr 512(1) and 590(3) of theFJR, concerning conversion to a writ action and cross-examination respectively, are discretionary, not mandatory. The question was whether the Judge had exercised that discretion wrongly: at [20].

(2) In answering that question, the court had to bear in mind the expanded, protective role of a judge hearing a matter under the MCA as opposed to a normal civil matter. This implied that the Judge should be accorded a greater degree of discretion and her judgment would be more difficult to impugn: at [22] and [49].

(3) The general position was that an appellate court would only interfere with a lower court’s exercise of discretion if it was clearly satisfied that the decision was wrong so as to defeat the rights of the parties altogether and would be an injustice to one or other of the parties. This was a high threshold: at [23] and [25].

(4) Although conversion to a writ action would generally be preferable when there were allegations of undue influence, the nature of the allegations would not by itself determine the form of action. To incline the court toward conversion to a writ action, a party would have to show that there was, first, controversy over the facts themselves as opposed to whether those facts were sufficient to establish undue influence, and, second, at least a credible matrix of facts supporting the allegations or denials: at [26], [30], [31] and [33].

(5) A party could lose the ability to ask the court to order conversion to a writ action if it had already made an election to proceed without conversion to a writ action. In such a case, a party’s loss of the opportunity to present its full case would be the result of that party’s own litigation strategy, and it thus could not be said to work an injustice: at [34] to [36].

(6) A party’s decision not to apply for cross-examination could also be an election, because cross-examination would have prevented any potential prejudice from non–conversion to a writ action: at [37].

(7) The appellant in this case did make an election to forgo conversion to a writ action by indicating to the judge who conducted the pre–trial conferences (“the PTC Judge”) that he did not wish to apply for cross-examination of witnesses and would go along with the Judge’s decision at the hearing of the application: at [38], [43] to [45], and [48].

(8) The appellant’s argument that it would have been premature to apply for conversion to a writ action, for cross-examination, or to subpoena witnesses prior to the hearing of the application was unsustainable. An application for conversion to a writ action could be made at any stage of the proceedings; further, the appellant had already been directed to apply for cross-examination by the PTC Judge: at [41], [42] and [44].

(9) Subpoenas could only be issued at the application of a party. Thus, whether to subpoena a witness whose testimony the appellant wished the Judge to consider was not a matter which the Appellant should have left to the Judge: at [47].

(10) Further, the appellant had failed to raise a sufficient factual dispute to warrant conversion to a writ action. His disagreement with the allegations of undue influence was phrased in vague terms which did not disclose a factual basis for his disagreement. He had therefore not established at least a credible matrix of facts supporting his position: at [50], [51] and [53].

(11) For the same reasons, it also could not be said that the Judge was wrong to decline to exercise her power under r 575 of the FJR to call witnesses of her own motion: at [56].

B K R , Re [2015] 4 SLR 81 (refd)

Cheong Kim Hock v Lin Securities (Pte) [1992] 1 SLR(R) 497; [1992] 2 SLR 349 (refd)

Deadman, Re [1971] 1 WLR 426 (distd)

Drydocks World LLC v Tan Boy Tee [2010] SGHC 248 (refd)

Evans v Bartlam [1937] AC 473 (folld)

Haco Far East Pte Ltd v Ong Heh Lai Francis [1999] 3 SLR(R) 959; [2000] 1 SLR 315 (folld)

Kamla Lal Hiranand v Lal Hiranand [2003] 3 SLR(R) 198; [2003] 3 SLR 198 (distd)

LS Investment Pte Ltd v Majlis Ugama Islam Singapura [1998] 3 SLR(R) 369; [1998] 3 SLR 754 (folld)

Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 (folld)

Tan Sock Hian v Eng Liat Kiang [1995] 1 SLR(R) 730; [1995] 3 SLR 49 (folld)

Tay Beng Chuan v Official Receiver and Liquidator of Kie Hock Shipping (1971)

Pte Ltd [1987] SLR(R) 123; [1987] SLR 50 (folld)

W oon Brothers Investments Pte Ltd v MCST Plan No 461 [2011] 4 SLR 777 (distd)

Family Justice Rules 2014 (S 813/2014) rr 512(1), 575(1), 590(3), 601(1), 601(3) (consd); rr 512, 575, 575(2), 590, 590(2)

Mental Capacity Act (Cap 177A, 2010 Rev Ed) s 23(1)(i) Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 28 r 8 (consd)

Liow Wang Wu Joseph (Straits Law Practice LLC) for the appellant;

Ramachandra Doraisamy Raghunath and Lee Weiming Andrew (Selvam LLC) for the first respondent.

[Editorial note: This was an appeal from the decision of the District Court in [2015] SGFC 63.]

Judith Prakash J:

Introduction

1 This matter comes before me as an appeal against the decision of the district judge (the “Judge”) in Originating Summons (Family) No 12 of 2015 (“OSM 12/2015” or “the Application”). The Judge’s grounds of decision were reported at TCZ v TDA, TDB and TDC [2015] SGFC 63.

2 The Application was filed in January 2015 as an originating summons in the Family Court. The purpose of the Application, which was made under s 23(1)(i) of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”), was to obtain court sanction to make and seal a statutory will on the part of [P] (“P”), a person who lacked testamentary capacity. The plaintiff (who is now the first respondent, but whom I shall continue to refer to as “the plaintiff”) was P’s niece whilst the first defendant (now the appellant) was the main beneficiary of P’s existing will made in December 2010 (“the 2010 Will”), the second defendant was P’s sister, and the third defendant was P’s close friend. The second and third defendants were made parties as they were intended beneficiaries under the statutory will.

3 The Application was heard by the Judge on 31 March 2015. It was opposed only by the appellant, the second and third defendants consenting to the same. A solicitor representing P sat in during the hearing. On 6 April 2015, the Judge granted the Application and approved the making of a statutory will in the terms of the draft will annexed to the Application except that the bequests in favour of the second and third defendants were reduced.

4 In coming to her decision on the substance of the Application, the Judge was cognisant that the quintessential nature and objective of the MCA was to protect P and that the court needed to act in P’s best interests. In other words, the court was called upon to assess what would serve the best interests of P and not what the court believed P would have done had she possessed the required testamentary capacity. The Judge came to the conclusion, based on the affidavit evidence of several witnesses, that in executing the 2010 Will, P had acted under the undue influence of the...