UJT v UJR and another matter

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 27 February 2018
• Neutral Citation: [2018] SGHC 44
• Date: 27 February 2018
• Docket Number: Suit No 274 of 2017 and Originating Summons (Probate) No 9 of 2016
• Published date: 03 March 2018
• Plaintiff Counsel: Mr Tan Siah Yong (ComLaw LLC)
• Defendant Counsel: First defendant in HCF/OSP 9/2016, unrepresented.,Mr Johnny Seah (Seah & Co)
• Court: High Court (Singapore)
• Hearing Date: 01 December 2017,22 November 2017,21 November 2017
• Subject Matter: Resulting trusts,Powers,Personal representatives,Trusts,Common intention constructive trusts,Constructive trusts,Probate and administration

Valerie Thean J:

In Originating Summons (Probate) No 9 of 2016 (“the Probate Application”), the plaintiff (“the Grandson”) applies for a number of orders in relation to a two-storey terraced house (“the Property”) belonging to his late grandfather’s estate. The principal effect of these orders is to enable him as executor of the estate to sell the Property despite the three defendants’ continued occupation of it. The second defendant in the Probate Application, who is his grandmother (“the Grandmother”), has in turn brought Suit No 274 of 2017 (“the Suit”), seeking among other things a declaration that she has a beneficial interest in the Property, or otherwise a right to remain in the Property until her death.

As this judgment concerns both the Probate Application and the Suit, and as the former is a proceeding which is required under s 10 of the Family Justice Act (No 27 of 2014) (“the FJA”) to be heard in camera, the names and details of the parties have been redacted pursuant to r 672(2) of the Family Justice Rules 2014 (S 813/2014) (“the FJR”).

For the reasons that follow, I dismiss the Suit, and make orders pursuant to the Probate Application to facilitate the sale of the Property.

Background

The Grandmother’s husband, whom I shall refer to as the Grandfather, died on 5 June 2014 at the age of 84. He left a will by which he gave his fourth and youngest son (“the Fourth Son”) and the Grandson, the Property upon trust to sell and, after payment of his debts and funeral and testamentary expenses, to share in the proceeds of sale equally.¹ He also appointed them as the executors and trustees of his will. The Property is registered in the Grandfather’s sole name, and it was the matrimonial home of him and the Grandmother, who is today 83 years old. The property is now occupied by her, the Fourth Son, and the couple’s second son (“the Second Son”).

The Grandfather and the Grandmother married in 1949 when he was 19 and she was 14.² They had five children.³ Their eldest son (“the Eldest Son”), who is the father of the Grandson and not a party to these proceedings, was born in 1951 and is now 66 years old. The Second Son was born in 1954 and is now 63 years old. Their only daughter was born in 1955 and is now 62 years old. Like the eldest son, she is not a party to these proceedings. Their third son, born in 1957, passed away in 1982. The Fourth Son is their youngest. He was born in 1962 and is now 55 years old.

During the early years of their marriage, the Grandfather and the Grandmother lived in what has been referred to in these proceedings as a “zinc roof house” in the vicinity of Alexandra Avenue, near Alexandra Hospital where the Grandfather worked as a peon and she as an “amah”.⁴ Sometime in the 1960s, they were told that the Government intended to take back the land upon which their house was built.⁵ They were given notice to leave the zinc roof house, which they did. They turned down the option of being relocated to public housing because of the size of their family. The Government offered them a compensation sum for leaving the house and, according to the Grandmother, she and the Grandfather were each entitled to half the sum. The amount of the compensation sum is a matter of some uncertainty.

With the compensation they had received and with what they had saved, the Grandfather and the Grandmother decided in 1967 to buy the Property.⁶ There is some dispute about its purchase price, in particular, whether it was $33,900 or $36,500. The purchase was financed partly by a mortgage loan of $10,250 from Overseas Union Trust, Limited, which was fully redeemed in 1970.⁷ Whether and to what extent Mdm Lim contributed to the purchase price is a matter of dispute. At the time they moved into the Property, the couple were 39 and 34 years old respectively, and their five children, 16, 13, 12, 10 and 5.

Sometime after 1967, the Grandfather started a watch-selling business at Alexandra Avenue.⁸ In 1988, he took out a loan secured on the Property to finance his business and to invest in commercial properties.⁹ Those properties were placed under his and his children’s names, and they became the premises from which his business operated. The loan appears now to have been fully repaid.

The Grandson alleges that in the 1990s, the Grandfather and the Grandmother’s relationship began to deteriorate, and they began staying in separate rooms.¹⁰ This assertion is disputed by the Grandmother.

In 2002, the Grandfather had a will drafted by which he left the Property to the Fourth Son and the Grandson upon trust to sell and to share in the proceeds of sale equally. As I have mentioned, the Fourth Son and the Grandson were appointed the executors and trustees. About a decade later, the Grandfather was diagnosed with cancer and he passed away in June 2014. At the time of his passing, the Grandmother, the Fourth Son and the Second Son lived at the Property.

In October 2014, the Grandson applied for grant of probate in relation to the Grandfather’s will.¹¹ This was issued to him in November 2014. Under the grant, a power was reserved to the Fourth Son for him to apply for a similar grant of probate.¹² By April 2015, the Fourth Son still had not exercised that power. The Grandson therefore decided to issue a citation under r 244 of the FJR to the Fourth Son asking him to accept or refuse a grant of probate in respect of the Grandfather’s will.¹³

A number of hearings took place under those citation proceedings in which the Fourth Son’s counsel, Mr Johnny Seah, indicated that his client was interested to take part in the probate.¹⁴ The Fourth Son, however, did not eventually apply for a grant of probate. Accordingly, in August 2015, the court ordered that the Fourth Son would be deemed to have renounced his rights and title to the probate and execution of the will unless he filed an application for grant of probate or if he contested the Grandson’s grant of probate within seven days.¹⁵ Neither was done. In September 2015, the court ordered that the Fourth Son’s rights as an executor under the will had ceased.¹⁶

Separately, in March 2015, the Grandmother and the Second Son were sued by the Eldest Son, who sought a declaration that he had a beneficial interest in a commercial property registered in his and the Second Son’s name. The Grandmother was named a defendant in that suit because the Second Son had alleged that she had contributed to the purchase price of the property. In the event, the parties in that suit reached a settlement in February 2016 after mediation.

The Grandson then applied in May 2016 for orders to effect the sale of the Property. These include orders to declare that he now acts as sole executor of the Grandfather’s estate and to require the current occupants of the Property to grant him access to it. I shall examine these orders individually, but as I have said, their principal effect is to enable the Grandson to carry out the sale of the Property in accordance with the trust for sale established by the Grandfather’s will. In response, the Grandmother in March 2017 filed the Suit against the Grandson, seeking a declaration that she has a beneficial interest in the Property or otherwise that she has a right to remain in it.

The parties agreed that the trial of the Suit would take place first, and the Probate Application dealt with thereafter on the basis of written submissions. That is because the answer to whether the Grandmother has an interest in the Property will have an effect on the determination of the Probate Application. This judgment therefore also deals first with the Suit.

The Suit

I begin with an overview of the parties’ cases.

The parties’ cases

The Grandmother pleads that she is entitled to 60.3% of the beneficial interest in the Property.¹⁷ Her primary case is that the Grandfather’s estate holds that proportion of the Property’s beneficial interest on resulting trust for her because she contributed 60.3% of the Property’s purchase price. She claims that the Property was bought for $36,500¹⁸ and was paid for using (a) a compensation sum of $6,000 obtained from the Government when their land was acquired (see [7] above); (b) cash in the sum of $19,000; (c) cash of an unknown amount from the Grandfather, which was used to pay stamp and legal fees; and (d) a loan of $10,250 from Overseas Union Trust, Limited (see [7] above), which was repaid by the Grandfather.¹⁹

The Grandmother claims that her contribution comprised half the compensation sum from the Government and the $19,000 in cash.²⁰ In her pleadings, she states the total sum of her contribution to be $22,500,²¹ but this appears to be an arithmetic error. Half of $6,000 is $3,000, and adding that to $19,000 yields a total sum of $22,000. $22,000 and not $22,500 is 60.3% of $36,500. Thus, $22,000 appears to be the figure which the Grandmother intended to state in her pleadings as the total sum of her contribution. Separately, the sum of $19,000 is simply stated to come from the “savings and contributions from the family”.²² Given that the Grandmother is saying that it was she who contributed that $19,000, she can only be implying that the sum came from her savings or contributions which she gathered from the family. In this regard, her pleadings refer to the fact that she “supplemented the income of the family”²³ by working as an amah at the Alexandra Hospital²⁴ and by selling homemade rice wine.²⁵

The Grandmother’s alternative case is based on the existence of a common intention constructive trust.²⁶ This aspect of her case is poorly pleaded. In particular, it is not clear what she alleges to be the substance of the common intention. It is also not clear what are the specific facts that she relies upon to establish that common intention. She does however say that it was a common intention shared between her and the Grandfather at the time the Property was purchased in 1967....