WEW v WEX and another

• Jurisdiction: Singapore
• Judge: Shobha G. Nair
• Judgment Date: 05 July 2022
• Neutral Citation: [2022] SGFC 60
• Court: Family Court (Singapore)
• Docket Number: FC/OSM 202/2021
• Published date: 14 July 2022
• Year: 2022
• Hearing Date: 23 November 2021,24 November 2021,24 January 2022,14 February 2022,22 March 2022,04 April 2022,22 April 2022
• Plaintiff Counsel: Ushan Premaratne/Marc Goh/Chiam Jia-An (WithersKhattarWong LLP)
• Defendant Counsel: Aaron Lee/Lee May Ling/Marc Malone/Lim Wei Ying (Allen and Gledhill LLP),Christopher Daniel/Ganga Avadiar/Tan Shuling (Advocatus Law LLP)
• Subject Matter: Lasting Power of Attorney,Revocation,Assessment of mental capacity,Fraud and Undue Pressure
• Citation: [2022] SGFC 60

District Judge Shobha G. Nair: Introduction

It is uncommon for a family to find itself before the Courts repeatedly over decades, for the determination of various types of disputes. Such a situation signals deep divides. In this case, a family comprising a 93 year old gentleman (P), his 88 year old wife (the Intervener) and their only 2 children, the Plaintiff (daughter) and the Defendant (son) are not new to the Courts. There have been civil suits in the past primarily involving P and his children and a grandson (the only child of his daughter). These generally arose in the context of business dealings which the family members were involved in. Other than the present application, there is also a matter pending in the family courts involving a protection application filed by the daughter against her mother and brother.

In the matter before me, the daughter sought the revocation of a lasting power of attorney (LPA) where P had appointed his son as a donee of power. Having heard the matter, I dismissed the application. The daughter has in a separate application sought to be appointed as deputy of P. This has been stood down pending the appeal of the against my decision. The daughter also appeals against my order on costs of $65 000 (all in) to the Defendant and $20 000 (all in) to the Intervener.

Factual Landscape

P was described by his son as a shrewd businessman. P had incorporated a company (S) in 1968 which appears to be named after his 2 children. In the 1980s the daughter and son were granted 30 000 and 50 000 shares respectively, in this company. In 1994 when the Defendant’s marriage broke down, he transferred his 50 000 shares to the Plaintiff. The Plaintiff and her son moved to Singapore from Nigeria when her marriage faced challenges. The Defendant moved to Singapore from Nigeria too, which the Plaintiff suggested was the result of his involvement in fraud and forgery crimes in Nigeria. After his return to Singapore, P included the Defendant as a director and shareholder of S.

In 1998 the Defendant ran a separate business within S. This involved the importing and selling of cars. The Defendant also ran his own company (SI Pte Ltd).

Both the Plaintiff and Defendant spared no effort in alleging that the other was deceitful and greedy and pointed to various legal suits instituted by P. A central figure in the Intervener and Defendant’s versions of the nature of these suits was the son of the Plaintiff who they claimed had cheated P and will continue to do so if the Plaintiff has any control of P and the latter’s assets. The Defendant pointed to 3 suits brought against the Plaintiff’s son and/or the Plaintiff. The Plaintiff on the other hand, pointed to a 2003 suit by P against the Defendant which she said was started because P discovered the Defendant’s involvement in fraudulent business-related transactions. The Defendant was removed as director. He was at this time based in London. It was the Plaintiff’s position that the relationship between P and his son was poor for about 15 years after the suit was instituted and there were many disputes during this time.

By early 2017 however, P and the Defendant entered into an agreement where the Defendant was given limited powers in S. The Defendant had also come out of his bankruptcy status in 2018. In 2019 the Defendant was appointed the director of S and P and the Intervener were removed. The Intervener claimed that this was a voluntary step and was in fact P’s request to do so.¹ The shares P held were transferred to a trust. It was the Plaintiff’s position that at this time, P could no longer have had mental capacity.

The Plaintiff claimed that she was the primary caregiver of P and that she had been involved in the family business since the 1980s. She was company secretary between 2007 and 2013 and director from 1996 to 2013. The Defendant was quick to say that she hardly worked a day and that her directorship did not involve any executive functions. He alleged that P was tired of the Plaintiff’s poor work ethic and arranged for her to resign. The Intervener aligned herself with the position taken by the Defendant.

The Plaintiff also detailed that she attended to household matters and to P’s medical appointments. This was again, denied by her mother. The family is assisted by 3 domestic helpers and her mother shared that her daughter was married at 23 years of age and did not play a significant role in the running of the home or P's affairs generally.

It was the Plaintiff’s position that she noticed P’s mental capacity deteriorating since 2017 and concerns about severe deterioration in mental capacity led her to file an application to be appointed deputy of P’s affairs in March 2021. The Defendant rushed back to Singapore from the UK where he resides with his wife.² The Plaintiff claimed that she had no issue with her brother wanting to participate in the care of P but she feared him cutting her off and taking control of their father at a time when their father was not able to exercise independent thought.³

P was hospitalized at the Singapore General Hospital (SGH) in February 2020. It was the Plaintiff’s position that P’s doctor observed some “serious abnormalities” in his behaviour and a referral to a geriatrician was suggested. Dr [A] then made the referral to see Dr [B], a geriatrician who was working at the Department of Diabetes and Metabolism Centre at the SGH. On the 3rd visit, Dr [B] suggested that the Plaintiff bring P to see a psychiatrist and issued memorandums that alerted to the possibility of Alzheimer’s Disease. No diagnosis was made.

In November 2020, the Plaintiff brought P to see Dr [C] from the SGH’s Department of Psychiatry. P visited Dr [C] on 2 occasions in November 2020. The Plaintiff was present on both occasions although there were brief periods when the Plaintiff was asked to step out of the room. After the first visit, the doctor had asked that the Plaintiff bring her mother to see the doctor on the second visit. The mother did not attend and it was the Plaintiff’s position that her mother did not want to attend. Her mother stated instead that she was under the impression given by the Plaintiff that the appointment was a follow-up review with P’s regular doctor and was not aware that the psychiatrist wanted to meet with her. She also said that she received a call from the psychiatrist saying that she could provide the letter she had prepared to her lawyer.⁴ Dr [C] indeed handed to the Plaintiff a note addressed to the “lawyer in-charge” which stated “consider writing in for a mental capacity assessment report if required”. The Plaintiff claimed that she never requested for the letter to be issued and that the doctor’s letter confirmed her suspicions that P had lost mental capacity.⁵ This report could not be released according to the Plaintiff, because the Defendant was not consenting to its release. It was the Defendant’s position that the Plaintiff had orchestrated the visits to support her application for appointment as deputy and the Defendant only knew about P’s attendance at the psychiatrist’s clinic after the fact. The Defendant and the Intervener claimed that quite apart from the fact that they knew nothing of the appointment, it had little utility as the Plaintiff who was seeking appointment as Deputy was the one supplying the information to the psychiatrist. No medical report was prepared nor furnished at the time of this hearing.

On 26 November 2020, the Defendant’s business associate [T] and one of P’s domestic helpers had taken P to see a doctor (a general practitioner) who conducted an Abbreviated Mental Test (AMT) for which P scored 6 out of a maximum possible score of 10. She suggested that there is cognitive impairment which may require further tests by a psychologist/psychiatrist.

Dr [D], a psychiatrist with 42 years of clinical experience saw P on 2 December 2020 and certified P to be mentally fit to execute a LPA appointing his son and wife as donees of power. He saw P again on 22 January 2021 and certified fitness again, this time when P indicated that he wished for his son to be given donee powers solely on account of his wife’s poor health.

The Plaintiff’s position was that P did not have the mental capacity to execute a LPA in favour of the Defendant and that the certificate issuer had not conducted the proper procedures nor asked the necessary questions to determine capacity. In the alternative, she sought that the Court exercise its discretion to revoke the LPA on account of what she alleged was fraud or undue pressure by the Defendant to induce P into executing the LPA. She also asserted that a LPA where the Defendant was the donee, would not serve the interests of P.

Did P have mental capacity at the time the LPA was executed?

The Mental Capacity Act (2008) MCA is designed to support dignified living. To have the autonomy to decide how one should live and manage one’s assets is a fundamental aspect of dignified living. So too is the ability to choose who one would like to take care of those very same things should one lose one’s capacity.

The world of psychiatry and neuroscience and perhaps the interplay between the two, presents as a complex dance of art and science. Geriatric psychiatry is not a precise science. Infact the mastery of the field often comes from having vast experience in attending to thousands of patients over decades. It is vital that in making mental capacity assessments, the assessor is not quick to take away the autonomy of a patient to make decisions. This is especially so in the case of patients with neurocognitive disorders which are age related and take on a pattern of lucidity and absence of the same, at different points in time each day and with regard to different issues.

A person must be assumed to have capacity unless it is established that the person lacks capacity.⁶ In fact the MCA Code...