WKR v WKQ and another appeal

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 27 October 2023
• Neutral Citation: [2023] SGHC(A) 35
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 107 of 2022 and Civil Appeal No 108 of 2022
• Hearing Date: 21 August 2023
• Citation: [2023] SGHC(A) 35
• Year: 2023
• Plaintiff Counsel: Mohamed Hashim bin Abdul Rasheed and Sofia Bakhash (A Mohamed Hashim)
• Defendant Counsel: Kulvinder Kaur (I.R.B Law LLP)
• Subject Matter: Probate and Administration,Foreign domicile grants,Resealing,Caveat
• Published date: 27 October 2023

Valerie Thean J (delivering the grounds of decision of the court): Introduction

On 10 January 2021, a man who was born in Mulhouse, France, died intestate in Málaga, Spain (the “Deceased”). AD/CA 107/2022 (“AD 107”) and AD/CA 108/2022 (“AD 108”) are two related appeals concerning the administration of his estate. The appellant in both appeals is the Deceased’s father (the “Father”). The respondent contends she is the Deceased’s wife. Her status is disputed by the Father, and we refer to her in these grounds of decision as “Mdm WKQ”. The Deceased had two children with Mdm WKQ. The Deceased also had two other children, whose mother we refer to as “Mdm Y”.

Litigation in other jurisdictions preceded the Singapore proceedings between the Father and Mdm WKQ. In June 2021, the Father applied in the Ajman Federal Court for the Deceased’s Inheritance Certificate in the United Arab Emirates (“UAE”). This application was contested by Mdm WKQ. The Ajman Federal Court ruled in favour of the Father and issued a decree on 27 September 2021 (the “UAE Court Decree”) which stated that the Deceased’s estate was to be divided as follows: (a) one-sixth to the Father; (b) one-sixth to the Deceased’s mother; (c) one-eighth to Mdm WKQ; and (d) the remainder to the Deceased’s four children in the ratio of 2:1 in favour of the male children. The UAE Court Decree also granted the Father administrative rights of the assets for the Deceased’s four minor children, as well as guardianship over the four children. On 30 September 2021, Mdm WKQ filed an appeal against the UAE Court Decree. Her appeal was dismissed on 7 February 2022.

In the meantime, and without giving any notice to the Father, Mdm WKQ applied ex parte in Probate Case No 3163 of 2021 (“Probate Case 3163”) to administer the estate of the Deceased in the Supreme Court of the Republic of Vanuatu on 21 September 2021, premised on the Vanuatu citizenship that the Deceased and she had acquired on 27 February 2019. Mdm WKQ obtained a grant of letters of administration in Vanuatu on 10 November 2021 (the “Vanuatu Grant”). Under the Vanuatu Grant, Mdm WKQ was entitled to one-third share of the Deceased’s estate, and their two children were entitled to the remainder two-thirds of the estate in equal shares. In other words, the Father and the two children from Mdm Y were not given any share under the Vanuatu Grant.

On 22 February 2022, again without notice to the Father, Mdm WKQ filed an ex parte originating summons in the Family Justice Courts of Singapore, HCF/P 112/2022 (“P 112”), for the Vanuatu Grant to be resealed in Singapore. On 29 March 2022, the Father filed a caveat in HCF/CAVP 11/2022 (“CAVP 11”), and followed this with a summons for directions, HCF/SUM 123/2022 (“SUM 123”) filed on 27 April 2022. In SUM 123, the Father sought a stay of P 112 pending the conclusion of proceedings in Vanuatu challenging the Vanuatu Grant. On 24 November 2022, a Judge of the General Division of the High Court (Family Division) (the “Judge”) dismissed SUM 123 and granted Mdm WKQ’s resealing application in P 112.

AD 107 was the Father’s appeal against what he framed as the Judge’s decision to remove the caveat in CAVP 11. AD 108 was the Father’s appeal against the Judge’s decision to grant the resealing order in P 112.

We allowed both appeals on 21 August 2023 and directed Mdm WKQ to commence contentious probate proceedings which would involve the Father. We now furnish the full grounds of our decision.

Background

We set out the events leading up to the Judge’s orders on 24 November 2022 in fuller detail. On 29 March 2022, the Father filed a caveat in CAVP 11 objecting to Mdm WKQ’s resealing application in Singapore, on the following grounds:

The Caveator is the Deceased’s father and a rightful beneficiary of the Estate. The Caveator objects to application HCF/P 112/2022 to reseal the grant of probate from Vanuatu on the grounds [that] it was not lawfully obtained and the Applicant is not a lawful beneficiary.

On 27 April 2022, the Father then applied, by way of SUM 123 in CAVP 11, for a stay of proceedings in P 112 pending the conclusion of the proceedings in Vanuatu challenging the Vanuatu Grant. SUM 123 stated as follows:

The Caveator applies for the following orders; 1. That the application in HCF/P 112/2022 to reseal the grant of probate from Vanuatu be stayed until the proceedings contesting the grant in Vanuatu are concluded. 2. Any further orders that the Honourable Court deems fit. 3. That there be costs in the cause.

The grounds of the application are: 1. the Caveator is contesting the grant of probate in both Vanuatu and the resealing in Singapore.

[emphasis added]

At the time when the Father filed SUM 123, there were no ongoing proceedings in Vanuatu contesting the Vanuatu Grant. Eight days later, on 5 May 2022, the Father filed Civil Case No 832 of 2022 (“Civil Case 832”) in the Vanuatu Supreme Court to quash the Vanuatu Grant.

On 1 June 2022, the Father filed an affidavit dated 31 May 2022 in support of SUM 123. In his affidavit, he stated that the grounds of his challenge in Civil Case 832 were that: (a) the Deceased and Mdm WKQ were never married under the civil law or Sharia law in any jurisdiction; (b) Mdm WKQ had made a false declaration of marriage in Vanuatu; and (c) the Deceased was domiciled in UAE and not in Vanuatu.

On 11 August 2022, the Vanuatu Supreme Court struck out the Father’s application in Civil Case 832 for non-compliance with court orders in relation to service, and for want of prosecution. The Vanuatu Supreme Court further stated that “the Claim was misconceived as the decision in [Probate Case 3163] should instead be challenged by way of appeal”.

On 26 August 2022, the parties appeared before an assistant registrar (the “AR”) at a case management conference (“CMC”) for CAVP 11. The court was informed that the Father’s application in Civil Case 832 had been struck out by the Vanuatu Supreme Court. The court adjourned the CMC and asked the Father to revert on whether he still intended to proceed with SUM 123.

On 31 August 2022, the Father informed the court by way of a letter that he intended to proceed with SUM 123 and that he would be appealing against the Vanuatu Supreme Court’s decision to strike out Civil Case 832 in the Appeal Court of the Republic of Vanuatu (“Vanuatu Court of Appeal”).

At a further CMC on 5 September 2022, the Father informed the court that there was an appeal in the Vanuatu proceedings. Mdm WKQ indicated that she was not aware of any pending appeal in the Vanuatu courts. The AR granted leave to the Father to file an affidavit in relation to the stage of proceedings in Vanuatu and whether the proceedings challenging the Vanuatu Grant had been concluded. The learned AR also limited the scope of the affidavit, expressly stating that “[SUM 123] is phrased in such a way that inheritance laws and domicile are not relevant to whether proceedings are concluded” [emphasis added]. The AR then directed that a hearing be fixed before the Judge.

Subsequently, on 19 September 2022, the Father filed an affidavit from his Vanuatu lawyer, one Daniel Kaukare Yawha (“Mr Yawha”), stating that: “[a]n application has been made to address the dismissal of [Civil Case 832] which would set aside the Supreme Court decision of [Probate Case 3163]”.

However, no such appeal or application had been made. On 13 October 2022, the Father filed another affidavit from Mr Yawha dated 12 October 2022, explaining that: “The Application to address the dismissal of the [Civil Case 832] which would set aside the Supreme Court decision of [Probate Case 3163] was not filed as the presiding Judge was on bereavement leave at the time of intended filing”. Mr Yawha attached to his affidavit a document titled “Notice and Grounds of Appeal” dated 12 October 2022 which laid down the Father’s grounds of appeal against the decision in Probate Case 3163.

On 18 October 2022, the parties appeared before the Judge for the hearing of SUM 123. The learned Judge admitted the affidavit from Mr Yawha dated 12 October 2022 and granted Mdm WKQ leave to file a reply affidavit from her foreign lawyer.

On 31 October 2022, Mdm WKQ’s Vanuatu lawyer, Mr Mark Grant Fleming (“Mr Fleming”), filed a reply affidavit dated 27 October 2022. In that affidavit, he averred that the parties’ Vanuatu lawyers appeared before Goldsborough J in the Vanuatu Supreme Court on 21 October 2022. Goldsborough J made clear that the Father was not entitled to appeal against the decision of the Vanuatu Supreme Court. When Goldsborough J was apprised of the fact that the Father had represented to the Singapore courts that a lawful appeal had been filed in Vanuatu, he warned in strong terms that this amounted to misconduct. Mr Fleming further averred that on 26 October 2022, Mr Yawha filed a Notice of Discontinuance in the Vanuatu Court of Appeal indicating that the Father had discontinued proceedings against Mdm WKQ in Vanuatu.

On 24 November 2022, the parties appeared before the Judge again for SUM 123 (the “24 November 2022 Hearing”). The Judge was apprised of the fact that the Father had discontinued his appeal in Vanuatu. The Father informed the court that he had just filed an application to intervene in P 112 in which he intended to raise matters relating to the Deceased’s domicile. He also sought a further stay pending his intervention application. This was rejected by the Judge on the ground that SUM 123 only pertained to a stay pending the conclusion of the Vanuatu proceedings, which had already been concluded on 26 October 2022. Consequently, the Judge dismissed the Father’s stay application in SUM 123 and granted Mdm WKQ an order in terms for her resealing application in P 112.

On 25 November 2022, the Father, by way of letter, requested further arguments before the Judge. He stated that the 24 November 2022 Hearing was...