Zailani Bin Abdullah Tan v K Jayakumar Naidu trading as Jay Associates

• Jurisdiction: Singapore
• Judge: Tan Puay Boon
• Judgment Date: 19 May 2017
• Neutral Citation: [2017] SGDC 127
• Court: District Court (Singapore)
• Docket Number: District Court Suit No. 3565 of 2016, Registrar’s Appeals No HC/RAS 14 & 16 of 2017
• Published date: 24 August 2017
• Year: 2017
• Hearing Date: 18 April 2017,09 February 2017,19 May 2017,17 January 2017,22 November 2016,27 March 2017,10 March 2017
• Plaintiff Counsel: Mr Rama Chettiar (Mr Justin Low in attendance) (M/s Central Chambers Law Corporation)
• Defendant Counsel: Mr Khwaja Imran Hamid with Ms Lucinda Lim (M/s Tan Rajah & Cheah)
• Subject Matter: Civil procedure,Pleadings,Amendment,Striking Out
• Citation: [2017] SGDC 127

District Judge Tan Puay Boon: The Facts

The Plaintiff (Zailani Bin Abdullah Tan), a Muslim, is the nephew of the Testator, Mohamed Sani Bin Osman @ Koh Dut Sent Sonny, who was also a Muslim.

Sometime on or about 21 April 2014, the Plaintiff accompanied the Testator to the office of the Defendant (K Jayakumar Naidu), an advocate & solicitor practising under the name and style of Jay Associates, a sole proprietorship. They were there for the Defendant to draw up the last will and testament of the Testator. The Testator had intended to devise his HDB flat to the Plaintiff absolutely.

The Will drawn up consisted of two pages. The first, the cover page, bore the date 21 April 2014, and the name, address and file reference number of the Defendant’s firm. It also bore the title of the document “LAST WILL AND TESTAMENT OF MOHAMED SANI BIN OSMAN @ KOH DUT SENG SONNY”. The second page of the Will reads as follows –

LAST WILL AND TESTAMENT

THIS IS THE LAST WILL AND TESTAMENT OF MOHAMED SANI BIN OSMAN @ KOH DUT SENG SONNY holder of NRIC no. [number] of [address].

1. I, MOHAMED SANI BIN OSMAN @ KOH DUT SENG SONNY holder of NRIC no. [number] HEREBY REVOKE all former Wills and Testamentary disposition (sic) made by me AND DECLARE this is to be my LAST WILL AND TESTAMENT. 2. I APPOINT ZAILANI BIN ABDULLAH TAN, holder of Singapore NRIC no [number] of [same address as above] to be my Sole Executor and Trustee of this my Last Will and Testament. 3. I give and bequeath my HDB flat known as [same address as above] to my nephew ZAILANI BIN ABDULLAH TAN, holder of NRIC no [number] absolutely.

IN WITNESS WHEREOF, I have hereunto set my hand on this 21st day of April 2014.

The Will was signed by the Testator, the Defendant and two witnesses, whose identities have no bearing on the present case.

The Testator passed away not long afterwards, on 20 May 2014. On 12 June 2014, the Plaintiff, as sole executor of the Testator’s Estate, applied to the Syariah Court for the Inheritance Certificate. This was issued on 18 June 2014, and listed 3 beneficiaries, each holding 5, 5 and 2 shares, respectively. None of them was the Plaintiff.

Grant of Probate was extracted and administration of the Estate was granted to the Plaintiff as sole executor. Eventually, the Plaintiff sold the HDB flat referred to in the will (the residential unit) on 24 June 2015 for $290,000. Of this sum, one-third ($96,667.67) was retained by the Plaintiff, and the remaining two-thirds were divided amongst the beneficiaries named in the Inheritance Certificate according to their respective shares.

The Plaintiff commenced the present suit on 26 November 2015. The writ named Jay Associates as the first Defendant and K Jayakumar Naidu as the second Defendant. After the Defendant entered appearance, he consented to the amendment of the writ and this was refiled on 26 January 2016 naming K Jayakumar Naidu trading as Jay Associates as the sole Defendant. The Statement of Claim was also amended by consent and refiled as the Statement of Claim (Amendment No. 1)¹ on the same day.

The Defence was filed on 10 February 2016. On 24 February 2016, the Plaintiff filed the Reply, and served on the Defendant the Interrogatories –

At the time of preparing the Will (i.e. on 21 April 2014), did you know of the provisions under Part VII of the Administration of Muslim Law Act?

The interrogatories remain unanswered until the present day. The Defendant has filed an application² for the Plaintiff to withdraw the Interrogatories. He was of the view that the Interrogatories were irrelevant to the Plaintiff’s claim.³

The Plaintiff’s case

It was the Plaintiff’s case that the Defendant – was negligent in the discharge of his duties as a solicitor to the Testator, resulting in the failure by the Plaintiff to receive the full benefit of the Testator’s estate as the intended sole beneficiary;⁴ owed him a duty of care, as the sole intended beneficiary of the Testator, that the Paramount Intention, which was stated as the Testator’s intention “to devise the residential unit to the Plaintiff absolutely”,⁵ would be achieved;⁶ and failed and/or neglected to advise the Testator that the Paramount Intention could not be achieved by way of the Will because the Testator was a Muslim and his estate would therefore be subject to Syariah law, and thereby failed to allow the Paramount Intention to be achieved by other means because: he failed to explain the legal principles of succession under Syariah law, their effect on the will, how his Paramount Intention would not be achieved, and rendered professional advice in offering other feasible alternatives for the Testator’s consideration on how he could achieve his Paramount Intention.⁷

The Plaintiff averred that he suffered a loss of $193,333.33, being two-thirds of the value of the residential unit which he did not receive. He claimed that sum, or alternatively, damages to be assessed.

The Defendant’s case

The Defendant admitted that he was informed by the Plaintiff that he was the nephew of the Testator, and that they had stayed together at the residential unit named in the Will. He maintained that he had discharged all his duties to the Testator, and acted as a reasonably competent solicitor.

He said that the Plaintiff had contacted him on 20 April 2014 to arrange for the drawing up of the Will, which was to transfer the residential unit to the Plaintiff as the sole beneficiary. On 21 April 2014, the Testator had told him, the Defendant, that he wanted to give the Plaintiff a roof over his head after his own death, and he wanted to make a Will to transfer the residential unit to the Plaintiff, that the Plaintiff was to be the sole executor of his Will, that he did not have any other surviving relatives, and that the residential unit was his sole asset.

The Defendant averred that the Testator did not identify himself as a Muslim, nor did he seek advice on Muslim inheritance law at any time. He had drawn up a Will based on the express instructions he received from the Testator, naming the Plaintiff as sole executor and trustee, and giving the entire residential unit to the Plaintiff absolutely. The Testator signed it after confirming the contents.

The Defendant also averred that the alleged loss suffered by the Plaintiff was not caused by any alleged breach of duties by the Defendant. This was because: if the Testator was a Muslim, only one-third of his estate could be distributed to his intended beneficiary under Islamic law; the Plaintiff had received one-third of the sale proceeds of the residential unit; the Plaintiff was not a beneficiary under the Inheritance Certificate; and he had not suffered any loss as the maximum benefit he could receive from the Testator’s estate was only one-third.

The Defendant denied that he owed the Plaintiff a duty of care. If he did owe such a duty to the Plaintiff, he averred that he had discharged that duty. He also maintained that the Plaintiff was not entitled to the damages claimed or at all.

The Plaintiff’s reply

In his reply, the Plaintiff joined issue with the Defendant, and also stated that: the Testator had handed over his NRIC to the Defendant to enable him to prepare the Will; the name on the NRIC would have prompted any reasonable and competent practising solicitor to question the Testator and verify whether he was of the Muslim faith before preparing the Will; as a reasonable and competent solicitor, the Defendant was expected to know the relevant provisions under Part VII of the Administration of Muslim Law Act (Cap 3) (AMLA), and therefore rendered the appropriate advice to the Testator on the effect of the Will being able to carry out his testamentary wishes to confer the full benefit of the residential unit to the Plaintiff; the Defendant failed to discharge his duties as a reasonable and competent solicitor in [considering] the effectiveness of the Will to Muslims, and what alternatives were available to the Testator to carry out the Paramount Intention; and the Plaintiff had suffered loss in that he did not receive the full benefit of the testamentary wishes of the Testator.

The Defendant’s application to strike out the Plaintiff’s claim

Grounds of the application

On 30 March 2016, the Defendant applied to strike out the Plaintiff’s claim under O.18, r.19 of the Rules of Court and/or the inherent jurisdiction of the Court.⁸ The grounds were – It discloses no reasonable cause of action; It is scandalous, frivolous or vexatious; and/or It is otherwise an abuse of the process of the Court.

The decision of the Deputy Registrar

The matter was heard by a Deputy Registrar, who allowed the application. She found that, going by the pleaded case, the claim was based on the professional negligence of the Defendant in the discharge of his duties to the testator in drafting the testator’s will, resulting in the Plaintiff’s failure to receive the full benefit of the testator’s estate despite being the testator’s sole beneficiary. However, since the testator was a Muslim, he could only dispose of up to one-third of his estate to a non-faraid beneficiary like the Plaintiff by will. She accepted the submission of the Defendant that the Plaintiff had received all that he could receive under the will, and held that “even if the facts of the claim are proved, though denied by the Defendant, the Plaintiff was not entitled to the remedy that he seeks, As such, the claim was legally unsustainable and should be struck out”.⁹ The Deputy Registrar struck out the Statement of Claim (Amendment No. 1), and ordered costs of the application and the action to be taxed if not agreed.

Based on the Deputy Registrar’s findings, the ground for striking out the claim was that it was “frivolous and vexatious”. No mention was made in the Notes of Evidence on whether the claim disclosed any reasonable cause of...