UAM v UAN and another

• Judge: Valerie Thean JC
• Judgment Date: 13 April 2017
• Neutral Citation: [2017] SGHCF 10
• Citation: [2017] SGHCF 10
• Defendant Counsel: Hee Theng Fong, Sharmini Selveratnam and Jaclyn Leong (Harry Elias Partnership LLP)
• Published date: 06 October 2018
• Hearing Date: 18 November 2017,17 November 2017,17 January 2017,16 November 2017,15 November 2017,21 November 2017,14 November 2017
• Plaintiff Counsel: Foo Soon Yien, Beverly Ng and Gemma Tse (Bernard & Rada Law Corporation)
• Date: 13 April 2017
• Court: High Court (Singapore)
• Docket Number: HCF/Suit No 3 of 2015
• Subject Matter: Extended doctrine of res judicata,Testamentary capacity,Revocation,Res Judicata,Defences,Later instrument,Issue estoppel,Abuse of Process,Equity,Succession and Wills,Laches

Valerie Thean JC: Introduction

This is a probate action seeking the revocation of an earlier grant of probate issued on 10 December 1990 in respect of a will of the mother of the plaintiff (“the mother”) dated 15 April 1980 (“the 1980 Will”). The plaintiff seeks in this action to pronounce against the validity of the 1980 Will and to pronounce in solemn form the mother’s later will dated 23 June 1981 (“the 1981 Will”). The 1981 Will appoints the plaintiff as the sole executor of the mother’s estate and devised her one-fifth share in a property to the plaintiff absolutely.

The 1980 Will, on the other hand, appointed the plaintiff’s late brother (“the brother”) and his wife, the 1st defendant, as co-executors, and devised the mother’s one-fifth share to the 2nd defendant (the son of the 1st Defendant) as the sole beneficiary. By their counterclaim, the defendants ask the court to pronounce against the validity of the 1981 Will and hold the 1980 Will valid.

The only asset in the mother’s estate is her one-fifth (1/5) share of the property just off Bukit Timah Road (“the Property”), upon which a bungalow stands. The plaintiff had, in various earlier actions, as a plaintiff in two writ actions filed in 2011 and 2012 (“Suit No.1” and “Suit No. 2”), which were consolidated and tried; and then as a defendant to an originating summons filed in 2014 (“Suit No.3”) and appellant in the appeal against that decision in the Court of Appeal, unsuccessfully sought to establish that he was the sole beneficial owner or otherwise had a right to lifetime exclusive possession of the Property.

For the reasons given below, I dismiss the plaintiff’s claim and allow the defendants’ counterclaim.

Background facts Parties and Property at stake

In 1966, the five members of the plaintiff’s family purchased the Property and held it as tenants-in-common in equal shares. The registered proprietors were the following: The father of the plaintiff (“the father”); The mother; The brother, the plaintiff’s late brother, who was the oldest of the father and mother’s three children; The plaintiff’s elder sister, the middle child of the father and mother; and the plaintiff, the youngest child of the father and mother.

The father ran a family business through a company (“the company”) with the help of his two sons. At the time, the family was living in various different properties. The father and mother lived at Queen Street. The brother and his family lived at Beach Road, near the company. The plaintiff’s sister had married and moved out of Queen Street. The plaintiff initially lived with his sister, and then moved into the Property in or around late 1966. Between 1968 to around 1978, the father and mother alternated from staying at Queen Street and the Property, and moved into the Property permanently in 1979 when the Queen Street property was acquired by the government. The father’s health began to deteriorate in 1979.

Discord within the family

The plaintiff and his brother were not close as children. There was a large age gap of 11 years between them and they did not live together when growing up.¹ They drifted apart even further when the plaintiff went to Australia for his university education,² and their relationship was volatile after the plaintiff returned from his education abroad in the 1960s.³

In or around 1978 to 1979, the plaintiff and his brother fell out with each other over certain potential Middle East business activities. The falling out was so severe that there were two police reports lodged by the brother: the first on 26 January 1979,⁴ and the second on 9 May 1979.⁵ According to the first report, the brother went to the Property to collect certain stationery items, but the plaintiff reportedly refused to allow him to do so, and ordered a dog to bite him. According to the second report, the brother was attacked by the plaintiff at the Property, causing him to sustain injuries on his face and bruises on his buttocks. The parties do not dispute the contents of the police reports. The plaintiff admits to these two altercations and claims his brother, during the first incident, accused him of cheating the brother of the Middle East transactions that did not come to fruition; and that his brother threatened him with a knife in the second incident, which ended up with the two of them exchanging blows.⁶

The plaintiff also fell out with his father because of the Middle East transaction. In early 1979, the father placed various notices in the English and Chinese newspapers to state that the plaintiff was not a representative of the company nor was he authorised to transact business on the company’s behalf. According to the 1st defendant, the father asked the plaintiff to vacate the Property, but the plaintiff refused. Instead, the parents moved out to a rented accommodation at Rangoon Road.

On 14 August 1979, the plaintiff received a letter from the law firm Donaldson & Burkinshaw purporting to act for his brother and their parents,⁷ alleging that the plaintiff was occupying the Property as a licensee since 1966 and demanded that the plaintiff vacate the Property by 30 September 1979 failing which they (his brother and parents) would commence proceedings against him and claim rental. The plaintiff replied on 23 August 1979, asking for the reasons for demanding that he vacate the Property.⁸ The plaintiff did not subsequently receive a reply, and he sent another letter to follow up on the matter on 7 September 1979. Again, there was no reply.⁹

On 15 March 1980, Drew & Napier sent the plaintiff a letter, purportedly acting for his brother and their parents, stating that the firm had been instructed to commence proceedings against the plaintiff in relation to the Property and that the plaintiff’s parents and brother were seeking a court order for the following reliefs: to sell the Property and divide the proceeds thereafter in equal shares; for the plaintiff to pay open market rental on the Property to the other registered co-owners in respect of the plaintiff’s occupation of the Property from 1974; and for a contribution from the plaintiff for all the expenses and interest paid for the upkeep, maintenance and renovation of the Property.¹⁰ The plaintiff did not reply to this letter, and there was no subsequent court action commenced against him in furtherance of this letter.¹¹

The 1980 Will

Both the father and the mother executed a will each on 15 April 1980. At that time, they were living in a rented accommodation at Rangoon Road while the brother and the 1st defendant lived at Beach Road.¹² Ms Momo Tay Ai Siew (“Ms Tay”), the solicitor who witnessed the execution of the 1980 Will, said that she received instructions for the wills from the brother.¹³ Both father and mother attended at Ms Tay’s office on 15 April 1980 for the execution of their respective wills, accompanied by the brother.¹⁴

The 1980 Will appointed the brother and the 1st defendant as co-executors, and devised the mother’s one-fifth share in the Property to the 2nd defendant as the sole beneficiary. The father’s will similarly appointed the brother and 1st defendant as co-executors, and devised his one-fifth share of the Property to the 2nd defendant’s elder brother. Ms Tay was unaware of the relationship between the brother and the two beneficiaries. She testified that she asked the father and the mother about their relationship with the beneficiaries, and was told that the beneficiaries were “their favourite grandchildren”. Both the father and the mother then signed their respective wills and an original carbon copy.

The plaintiff redeems the mortgage on the Property

In the meanwhile, an overdraft on the Property remained unserviced. On 29 November 1980, Chung Khiaw Bank’s solicitors wrote to the plaintiff and his brother demanding repayment of $47,850 and threatened foreclosure. The plaintiff wrote to the brother to ask him to repay but the brother refused. On 17 January 1981, the plaintiff paid the outstanding sum of $47,850 and the bank released to him the original certificate of title.

The mother’s departure from Ming Teck Park

The father and mother began staying with the brother’s family at Ming Teck Park on or around March 1981.¹⁵ Around June 1981, the mother moved out of Ming Teck Park to stay with the plaintiff’s elder sister instead. It seems the mother had, after a medical appointment, left by herself in a taxi without taking any of her belongings at Ming Teck Park.¹⁶ The father was still alive and continued to stay at Ming Teck Park. The brother, 1st defendant and their family members subsequently neither visited the mother nor brought her belongings that she left behind at Ming Teck Park to her.¹⁷

The Trust Acknowledgement and the 1981 Will

On 9 June 1981, the plaintiff visited his mother at his sister’s house and told the mother how he prevented foreclosure on the Property and about the problems that the plaintiff had with his brother.¹⁸ The plaintiff prepared two documents for his mother to sign: one was an acknowledgement that she held her one-fifth share in the Property on trust for the plaintiff and the other was a letter to discharge Drew & Napier from acting further for her. The mother signed both documents¹⁹ with a circle in the presence of the plaintiff and his wife.

The plaintiff further contends that around the same time, he met his mother at a coffee shop in Victoria Street where he brought up the topic of the letter from Drew & Napier (see [11] above).²⁰ The mother decided that she wanted all her assets to vest in the plaintiff upon her death. She informed him so, and asked that the plaintiff bring her to see lawyers in connection with this matter.²¹ The plaintiff thus brought his mother to People’s Park Centre as he knew that many lawyers’ offices were located there. They walked into one that they came across and executed the 1981 Will there.

The 1981...