ULV v ULW

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 09 January 2019
• Neutral Citation: [2019] SGHCF 2
• Plaintiff Counsel: Tan Siew Tiong and Lee Kang Lin (LawHub LLC)
• Date: 09 January 2019
• Docket Number: HCF/District Court Appeal No 16 of 2018
• Hearing Date: 14 August 2018,05 September 2018
• Subject Matter: Later instrument,Testamentary capacity,Revocation,Succession and Wills
• Published date: 02 April 2019
• Defendant Counsel: Tay Choon Leng John and Conrad De Souza (John Tay & Co)
• Court: High Court (Singapore)
• Citation: [2019] SGHCF 2
• Year: 2019

Tan Puay Boon JC: Introduction

The parties to the appeal are brothers. Their mother, [T], passed away in 2016, having executed two wills, one on 13 December 2004 and one on 7 June 2008. I will refer to these as “the 2004 Will” and “the 2008 Will” respectively. The appellant propounds the 2008 Will and the respondent propounds the 2004 Will. It is not disputed that the 2004 Will is valid; the only question is whether it has been revoked by the 2008 Will.

The District Judge decided that the 2008 Will was not valid and therefore did not revoke the 2004 Will. Having considered the relevant facts and circumstances of the case, I agree with her decision on the basis that it has not been proved that [T] knew and approved of the contents of the 2008 Will. The reasons for my decision are set out herein.

Facts The two wills

The testatrix, [T], was born in 1929 and died a widow on 3 August 2016. She was succeeded by her five children: [L], a daughter, and [K], [J], the appellant and the respondent, all sons.¹ Besides [T]’s children, evidence was also received from two of [K]’s daughters, [N] and [C], as well as [T]’s caregiver. It is generally agreed that [C] was [T]’s favourite granddaughter. [C], though not [N], was a beneficiary under the 2004 Will and was also mentioned in the 2008 Will.

In 2004, [T] went by herself to M/s K K Yap & Partners.² She had previously told [C] of her intention to make a will, and [C] wrote the beneficiaries’ names on a piece of paper for [T] because [T] would otherwise not be able to spell them as she was illiterate.³ [C] was overseas at the time the 2004 Will was made but [T] showed it to her subsequently when she visited home.⁴ The 2004 Will states:⁵ 1. I appoint my son, [the respondent] to be my Executor and Trustees(“my Trustee”) of this my Will.

…

3. Subject to the payment of my just debts, funeral and testamentary expenses and all estate duties on any legacies or annuity given or on any gift made free of duty, I GIVE DEVISE and BEQUEATH all my movable and immovable property whatsoever and wheresoever not hereby or by any codicil hereto specifically disposed of including any property (both real or personal) over which I may have a general appointment or disposition by Will to my Trustee UPON TRUST to sell, call in and convert the same with power to postpone such sale, calling in and conversion for so long as my Trustee shall think fit without being liable for loss. 4. My Trustee shall stand possessed of the moneys arising therefrom together with any ready monies forming part of my estate UPON TRUST for the following beneficiaries in the following shares, namely:- (a) 12.5% to my daughter, [L]; (b) 12.5% to my son, [K]; (c) 37.5% to my son, [the respondent]; (d) 12.5% to my son, [J]; (e) 12.5% to my son, [the appellant]; and (f) 12.5% to my granddaughter, [C]

…

[emphasis in original]

The 2004 Will was stored in [T]’s security box at the respondent’s house, where she also kept her jewellery, other valuable possessions and important documents, such as certificates for fixed deposits.⁶ Nobody else had a key to this security box and [C] was the only person who knew the combination code.⁷

[T]’s husband passed away on 22 August 2007. Sometime in early 2008, [T] received news that her flat was subject to the Housing Development Board (“HDB”)’s Selective En Bloc Redevelopment Scheme, and that the replacement flat would be at Blk 79B Toa Payoh Central (“the Flat”). [T] then approached some of her children individually, including the appellant, the respondent and [K], to invite them to move into the Flat with her. (There is a dispute about whether she approached the appellant first or last, but nothing turns on this.) [T] offered to let [K] stay in the Flat either on condition that he pay rent of $500, or purchase the flat from her directly.⁸ According to the respondent, the condition was that he pay reasonable rent and help to pay for utilities.⁹ Both the respondent and [K] declined [T]’s offer. Eventually, [T] agreed to let the appellant and his family move into the Flat on condition that he give [T] the proceeds from the sale of his own HDB flat in Tampines, which were estimated at about $120,000 to $130,000.¹⁰ [T] moved into the Flat in April 2008 and the appellant and his family joined her sometime in May 2008.¹¹ It is undisputed that the appellant never paid [T] the proceeds of sale of his Tampines flat.¹² It appears that [T]’s relationship with the appellant deteriorated after they began living together in 2008. I elaborate on this later on in the judgment.

On 7 June 2008, [T] executed the 2008 Will at the office of M/s K K Yap & Partners, which was by then known as LawHub LLC. The 2008 Will was drafted by Ms Neo Shien Ching (“Ms Neo”). Ms Neo did not enquire as to whether there was any previous will, though she claimed that it was her usual practice to emphasise to the testator that the will would revoke all former wills.¹³ The 2008 Will states:¹⁴ 1. I appoint my son, [the appellant] to be the sole Executor and Trustee (“my Trustee”) of this my Will.

…

3. I wish to transfer my property ownership at [the Flat] to my son [the appellant]. 4. In exchange for the transfer abovementioned, I wish that my said son, [the appellant] to distribute S$130,000.00 from his own funds to the following: (a) [L] for the sum of S$20,000.00 (b) [K] for the sum of S$20,000.00 (c) [the respondent] for the sum of S$50,000.00 (d) [J] for the sum of S$20,000.00 (e) [C] for the sum of S$20,000.00 5. Subject to the payment of my just debts, funeral and testamentary expenses and all estate duties on any legacies or annuity given or on any gift made free of duty, I GIVE DEVISE and BEQUEATH all my cash in hand including savings and current accounts, fixed deposits with any bank or financial institution, stocks, shares and debentures which I may be possessed or to which I may be entitled at my death, and all my movable and immovable property including my property at [the Flat] whatsoever and wheresoever not hereby or by any codicil hereto specifically disposed of including any property over which I may have a general appointment or disposition by Will to my said son, [the appellant] for his sole use and benefit absolutely.

[emphasis in original]

The appellant was present when the 2008 Will was made. The will was kept in his custody until after [T]’s death. The other siblings deny all knowledge of the 2008 Will throughout this period, though the appellant claims that his brothers [K] and [J] knew of it.¹⁵

[T] passed away on 3 August 2016. The family met at [K]’s home on 19 August 2016, where the respondent produced the 2004 Will. The appellant then produced the 2008 Will, which appeared to take the other family members by surprise. The proceedings below were commenced on 13 March 2017.

The 2011 Document

When the appellant produced the 2008 Will, it was attached to another piece of paper. This was a document which had been prepared by [J] and which was signed by [T] in his and the appellant’s presence on 23 July 2011 (“the 2011 Document”). It states:¹⁶

I, [T] HEREBY DECLARE that I wish to transfer my property ownership at [the Flat] to my youngest son [the appellant].

In exchange for the transfer property abovementioned.

I have received from my said son, [the appellant] an amount CASH for the sum of S$150,000.00 for his sole use and benefit absolutely.

IN WITNESS WHEREOF I have hereunto set my hand this 23th day of July 2011.

The document was signed by the appellant and by [J] as witness. It also bore a thumbprint over the words “SIGNED BY the abovenamed [T] As having received S$150,000.00 CASH from said son [the appellant] to transfer her property of [the Flat]”. This was annotated with the following handwritten words: “In the presence of us both we being both present at the same time having read over and explained to her in Hokkien dialect wherein she understand and approve the contents.”

The evidence surrounding the 2011 Document is very unclear. [J] admitted to having prepared the document. He confirmed that the signature was his and that he had penned the handwritten clause at the foot of the 2011 Document. [J] claimed that, a few days before the 2011 Document was signed, the appellant called him and said that [T] had been chasing him for money. The appellant said he had borrowed $150,000 to pay [T], but was afraid that [T] would subsequently deny having received that money. [J] therefore did a Google search for “some template” and the appellant told him to write that the payment would be in exchange for the Flat.¹⁷

[J] said that he witnessed [T] receiving $150,000 from the appellant, though he could not remember if this was received in cash or by cheque.¹⁸ The respondent does not dispute that the sum of $150,000 was in fact received by [T].¹⁹ ([L] also testified to having received $20,000 from [T], though she did not know if this was from the $150,000 which the appellant gave [T], and was not asked when she had received it.²⁰ None of the other witnesses testified to receiving sums of money from [T] out of the $150,000 which the appellant had given her.) [J] said he did not know how much the appellant owed [T] or what the money was being paid for.²¹ It was “possible” that the sum of $150,000 was payment for the Flat.²² It is also unclear how to reconcile [J]’s evidence that he had prepared the 2011 Document with his evidence that the appellant was the one who brought the 2011 Document to meet [T] and [J]. According to [J], the appellant asked them to sign the 2011 Document without explaining the contents or giving them a chance to examine it.²³ I should also add that the appellant’s pleadings did not include any claim for this $150,000 in the event the 2008 Will was not upheld.

It should be noted that the...