WDT v WDS and other matters

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 06 February 2023
• Neutral Citation: [2023] SGHC(A) 7
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 55 of 2022 and Summonses Nos 38 and 47 of 2022
• Hearing Date: 06 February 2023
• Citation: [2023] SGHC(A) 7
• Year: 2023
• Plaintiff Counsel: Lee Sien Liang Joseph, Muk Chen Yeen Jonathan and Wong Xiao Wei (LVM Law Chambers LLC)
• Defendant Counsel: Wah Hsien-Wen Terence and Mok Zi Cong (Dentons Rodyk & Davidson LLP)
• Subject Matter: Gifts,Incomplete,Civil Procedure,Appeals,Adducing fresh evidence on appeal
• Published date: 09 February 2023

Kannan Ramesh JAD (delivering the judgment of the court ex tempore):

This is an appeal from the decision of a judge of the General Division of the High Court (the “Judge”) in WDS v WDT [2022] SGHCF 12 (the “Oral Judgment”). We have also heard two applications by the appellant for permission to adduce further evidence on appeal. The applications for permission to adduce further evidence in AD/SUM 38/2022 (“SUM 38”) and AD/SUM 47/2022 (“SUM 47”) (collectively the “applications”) are dismissed. The appeal in AD/CA 55/2022 (“the appeal”) is also dismissed. These are our reasons.

Background facts

The deceased had four children, all of whom are beneficiaries under her will. The appellant was the Deceased’s youngest daughter. Until the deceased’s passing in 2016, the appellant lived with her in Toronto, Canada. In January 2015, the deceased suffered a serious stroke. For around a year after her discharge from hospital, the appellant took care of the deceased at home with hired help. Thereafter, the deceased moved into a private senior care home in Toronto with the appellant as her co-occupant.

WongPartnership LLP (“WongPartnership”) was the law firm that assisted the deceased with the preparation of her will in 2013. At that time, they also assisted the deceased with the making of a gift of S$2.5m to the appellant. Before taking instructions from the deceased in 2013, WongPartnership arranged for her mental capacity to be assessed by a psychiatrist in New York. This psychiatrist was present at the execution of the will and a deed of gift for the S$2.5m gift to the appellant. In March 2014, the deceased reviewed and confirmed the contents of these documents before a psychiatrist in Singapore. B was a close long-time friend of the deceased, and assisted her through this process.

On 25 June 2016, B wrote to WongPartnership to inform them that the deceased intended to make a gift of another US$1.5m to the appellant (the “Gift”). She mentioned that the deceased wanted to express her gratitude to the appellant for her hard work and sacrifice as her caregiver after her stroke. WongPartnership advised that they would arrange a video call to confirm the deceased’s instructions, following which they would prepare a deed of gift for her review and execution. They also advised that it would be prudent for the deceased to undergo a mental capacity assessment before executing the deed of gift, so that the Gift could not be challenged by the appellant’s siblings in the future.

WongPartnership confirmed the deceased’s instructions via video call on 25 August 2016. On or about 7 September 2016, during a phone conversation with B, the deceased asked whether the appellant had received the Gift. When B told her that the appellant had not, she urged B to make sure that the appellant received the Gift as soon as possible. This prompted B to suggest the preparing a letter of instruction to the deceased’s lawyers and bankers that was to be signed by the deceased. B prepared the letter and it was signed by the deceased on 14 September 2016. The letter (the “14 September Letter”) stated that the deceased gave instruction to her lawyers and bankers to execute all necessary funds transfers “now” for the Gift to the appellant. The next day, on 15 September 2016, WongPartnership sent a draft deed of gift to B for the deceased’s approval. They again advised that it would be prudent for the deceased to undergo a mental capacity assessment before executing the deed of gift. B did not hand the 14 September Letter to the deceased’s bankers and lawyers. She kept the 14 September Letter with her and only passed it to the appellant after the deceased passed away.

Thereafter, WongPartnership and B tried to make arrangements for the assessment of the deceased’s mental capacity before executing the deed of gift. Unfortunately, before the assessment could be done, the deceased passed away in New York.

There were disagreements between the respondent who is the executor of the will, and the appellant regarding whether the Gift should be recognised as a debt of the deceased’s estate. In the proceedings below, the respondent sought, amongst other things, a declaration that the appellant did not have a valid claim for the sum of US$1.5m as a creditor of the deceased’s estate.

The decision below

The Judge granted the declaration sought. The Judge’s finding that is relevant to this appeal is her rejection of the appellant’s argument that the rule in In re Rose; Rose v Inland Revenue Commissioners [1952] 1 Ch 499 (“Re Rose”) was applicable. The rule in Re Rose is that a gift will be regarded as complete if the donor has done all that is necessary and in her power to effect the gift. The Judge found that the deceased had not done all that was within her power to procure the transfer of US$1.5m to the appellant. She had not signed the deed of gift, provided it to the relevant bank, and given the relevant bank instructions to effect the Gift. While she had prepared the 14 September Letter, it was not given to B with instructions to convey it to WongPartnership or one of her banks. It also did not contain information as to the specific bank account from which the Gift was supposed to come – the deceased’s bankers or lawyers would have required...