Toh Eng Lan v Foong Fook Yue and Another Appeal

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 09 November 1998
• Neutral Citation: [1998] SGCA 69
• Docket Number: Civil Appeals Nos 56 and 65 of 1998
• Date: 09 November 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Mohammed Lutfi bin Hussin (Eugene Ho & Ptnrs),Ong Pang Meng (Tang & Pnrs)
• Citation: [1998] SGCA 69
• Defendant Counsel: Sng Kheng Huat (Sng & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Gift of house subject to allowing younger daughter and son to stay, and personal friend to stay where necessary,Condition subsequent,Appeals,'Stay',Civil Procedure,Whether leave of court required to admit such further evidence,Leave,s 37(2) Supreme Court of Judicature Act (Cap 322),Succession and Wills,Further evidence of matters arising before date of decision from which appeal brought,'Necessary',Construction,Special grounds for admission,O 57 r 13(2) Rules of Court,Whether condition subsequent void for uncertainty,Words and Phrases

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): Background

1.By cl 2 of his will dated 26 August 1986, the testator, Foong Siew Tong (`the testator`) provided as follows:

I devise to my elder daughter, Foong Fook Yue, my house known as 38 Princess of Wales, Singapore absolutely.

This is on the specific condition that my elder daughter shall allow my other daughter and only son, Foong Fook Wai and Foong Fook Won and my personal friend, Miss Toh Eng Lan to stay in this house, should it be necessary for her so to do.

By cl 3:

I further devise my flat known as Block 29, Mount Sinai Rise, [num ]03-01, Singapore to my personal friend, Miss Toh Eng Lan ... absolutely.

And by cl 4:

I further devise to my trustee [the testator`s elder daughter Foong Fook Yue], my shophouse and flat known as 619D and 619E Bukit Timah Road, Singapore ... respectively in trust for my younger daughter, Foong Fook Wai ... and my only son, Foong Fook Won ... until my only son shall reach the age of 21 years old. Thereafter to my younger daughter and only son absolutely in equal shares as joint tenants.

By cl 1, the testator appointed his elder daughter Foong Fook Yue, the respondent and appellant in CA 56 and 65 of 1998 respectively, the sole executrix and trustee of his will. (Hereafter the elder daughter Foong Fook Yue will be referred to as `Ms Foong`; Miss Toh Eng Lan as `Miss Toh`; Foong Fook Wai as `the younger daughter` and Foong Fook Won as `the son`).

2.The testator died on 18 December 1986. Grant of probate in respect of the testator`s estate was extracted on 13 April 1995 in Probate No 1645 of 1987. It was not in dispute that the apartment known as Block 29 Mount Sinai Rise [num ]03-01, Singapore (`the apartment`) was registered in the name of the beneficiary, Miss Toh, on 16 May 1997 and that she had had the benefit of the rental proceeds therefrom since about September 1987.

3. Originating Summons No 73 of 1998

In Originating Summons No 73 of 1998 filed on 22 January 1998 (`OS No 73 of 1998`) Ms Foong, the sole executrix and trustee of the will of the testator, took out an application for the following orders: (1). That it may be determined on the true construction of the testator`s will that the direction in cl 2 of the will relating to the property at 38 Princess of Wales, Singapore (`the property`), which is reproduced as follows, is void for uncertainty.

2 I devise to my elder daughter, Foong Fook Yue, my house known as 38 Princess of Wales, Singapore absolutely.

This is on the specific condition that my elder daughter shall allow my other daughter and only son, Foong Fook Wai and Foong Fook Won [the second and third respondents in CA 65/98 respectively] and my personal friend, Miss Toh Eng Lan [the appellant and first respondent in CA 56 and 65 of 1998 respectively] to stay in this house, should it be necessary for her so to do.`]

(2). That it may be determined on the true construction of the said will that the property at 38 Princess of Wales, Singapore is an absolute gift to the plaintiff (Ms Foong).

(3). That the plaintiff recover possession of the property at 38 Princess of Wales, Singapore on the ground that she is entitled to possession thereof and that the first defendant, Toh Eng Lan (Miss Toh), being the person in occupation, is in occupation without licence or consent.

(4). For such further or other order as the court may direct.

(5). That the plaintiff`s costs in these proceedings be borne by the first defendant.

(6). That there be liberty to apply.

4.The application first came up for hearing before Judith Prakash J on 13 February 1998 but was adjourned as Miss Toh`s solicitors indicated that she wished to file an affidavit in reply to Ms Foong`s affidavit filed on 22 January 1998. Judith Prakash J adjourned the application to 16 February 1998 and recorded that: (1) no further affidavits were required as the issue was one of law only; and (2) if a further adjournment was sought, the party requesting for such adjournment shall bear the costs of adjournment.

5.At the adjourned hearing on 16 February 1998 before Lai Siu Chiu J, Miss Toh through her solicitors informed the court that she thought that a further affidavit was necessary but that she was prepared to proceed without such affidavit if the court was of the view that the issue was strictly one of law.

6. The decision below

The learned judge gave judgment for Ms Foong in the following terms: (1). That there was no uncertainty in the wording of cl 2 of the will of the testator but that the question of necessity was no longer in issue because the first defendant (Miss Toh) had alternative accommodations since about May 1997 when the apartment at [num ]03-01 Block 29 Mount Sinai Rise, Singapore was transferred to the first defendant and the first defendant had since September 1987 obtained rental income from the said apartment.

(2). That on the true construction of the will of the testator, the property at 38 Princess of Wales, Singapore was an absolute gift to the plaintiff (Ms Foong).

(3). That the plaintiff recover possession of the property at 38 Princess of Wales, Singapore on the ground that she was entitled to possession thereof and that the first defendant, Toh Eng Lan, being the person in occupation, was in occupation without licence or consent.

(4). That the first defendant vacate the property at 38 Princess of Wales, Singapore by 28 February 1998.

7.At the outset, the learned judge noted that the object of Ms Foong`s application was in substance to recover possession of the property. Therefore the first issue was whether the testator had made an absolute gift of the property to Ms Foong to begin with. For there to be an absolute gift,

... the court must be satisfied, on the construction of the will as a whole, that the testator has segregated the gifted property from the remainder of his estate once and for all, and that behind the trusts engrafted on the gift there remains an interest vested in the legatee which will spring up and take effect so far as the engrafted trusts do not exhaust the subject-matter of the gift. ... ( Theobald on Wills (15th Ed, 1993) at p 523.)

Applying this test to the words of cl 2 of the will, the learned judge was satisfied that the property was segregated from the remainder of the estate and that the interest in the property was vested in Ms Foong. The property given to Ms Foong by the testator was an absolute gift, creating in Ms Foong an absolute interest instead of a life interest.

8.However, a gift

`so long as certain circumstances continue` ... may create an estate in fee simple or absolute interest determinable on those circumstances ceasing to exist ( Williams on Wills (7th Ed, 1995) at p 751.)

So the second issue was whether Ms Foong`s absolute interest in the property was subject to a defeasance clause by virtue of the subsequent direction in cl 2. On one view, Ms Foong`s absolute interest would determine if either she did not allow the younger daughter and the son to stay in the property, or she did not allow Miss Toh to do so where necessary. Ms Foong submitted, relying on several textbook authorities, that the direction in cl 2 of the will whereby the testator made provision for all the defendants to stay in the property was void for uncertainty. For instance, there was the following proposition in Theobald on Wills at p 652:

A condition requiring a person to provide a home for another is void for uncertainty, unless, perhaps, the provision is to be `free of cost or charge`. In the absence of a gift over the provision of the home will be regarded as precatory rather than as being subject to a condition: in either case the testator`s intention is ineffective.

And in Williams on Wills at p 357 it is stated:

Such a condition [a condition to `provide a home`] is not susceptible of any such clear and definite interpretation as enables the court to say what it means and what obligation it involves and being a condition subsequent is void for uncertainty.

9.Re Brace; Gurton v Clements & Ors [1954] 1 WLR 955 was cited as authority for the above passages. In that case, a testator by his will provided:

I give and bequeath unto my daughter Irene my house at 25 Apton Road, Bishop`s Stortford, together with the contents of the same and any possessions I may have, on condition that she will always provide a home for my daughter Doris at the above address.

It was held that, in the absence of a gift over, the condition should be construed as precatory only; and further that the words `to provide a home for ...` were so vague as to be unintelligible, so that regarded as a condition of defeasance they were void for uncertainty. According to Vaisey J, the question to be asked regarding the condition subsequent, as stated at p 959 of the judgment, was whether the court was `able to see clearly ... what it was the testator meant?` Examining the condition in that case, Vaisey J was of the opinion that it was not possible to see clearly what it was the testator meant. He said at p 957:

I confess to feeling a very grave doubt whether the conception of one person A providing a home for another B is susceptible of any such clear and definite significance as to enable anybody to say what it means or what obligations it entails. Obviously, the provision of a home would involve giving shelter from the elements; but, if board and lodging, clothing, food, and so forth, have to be provided, on what scale or by what standard is the obligation to be imposed? Another way of stating the difficulty is to ask whether providing B with a home includes or implies maintaining him. I cannot read `provide a home for` as equivalent to `maintain and provide a home for`; had those been the words, I might not have felt any difficulty.

At p 958:

What is meant by `providing a home`, without any reference, as in Re Richardson, to costs and expenses? It seems to me to be an expression with a

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