With the growth of Singapore as a wealth hub in the last 10 years, there has been a corresponding growth and development in our law in related areas such as estate and trust administration, succession and mental capacity issues. This article is largely based on a 15-minute session at the Family Law Conference on 3 and 4 September 2024 on the development in the law relating to Estate and Mental Capacity practices in the last 10 years.
As with the session, it is a challenge to seek to properly capture the progress in these areas in this relatively short article. The objective is thus to provide a high-level view of the relevant case precedents in the last 10 years under each relevant topic and hopefully a springboard for further and more interesting development of the law in these areas.
Rectification of Wills
Section 28 was included in the Wills Act 18381This amendment was precipitated by the case Cheo Yeoh & Associates LLC v AEL (2015) 4 SLR 325, where beneficiaries who suffered losses because of an invalid Will sued the solicitor for professional negligence. On the issue of mitigation of damages, the Court of Appeal citing English cases, took the view that the claimant should seek rectification of the Will before proceeding on a claim for damages against the solicitor. The Court of Appeal however noted that the remedy of rectification was not available in Singapore. (See also, parliamentary comments by Ms Indranee Rajah on 9 May 2016, Parliament No 13, Session No 1, Volume No 94, Sitting No 20 at 4:04 pm and 4:32 pm) in 2016, after a period of almost 20 years without any amendments. There does not appear to be any Singapore reported decisions on rectification since the amendment.2In UK though, in Marley v Rawlings (2014) UKSC 2, a husband and wife had signed each other’s will. Rectification was allowed.
The Presumptions
Cheo Yeoh & Associates LLC v AEL3Cheo Yeoh & Associates LLC v AEL (2015) 4 SLR 325 importantly, set out the legal position in relation to the presumption of revocation, presumption of intestacy and doctrine of conditional revocation. The legal position is this: Firstly, the Court will determine if there is any evidence that the testator intended to revoke a will. If there is no such evidence, the question is whether the presumption of revocation is triggered (i.e. the will is burnt, torn or otherwise destroyed; or cannot be located upon the testator’s death, despite reasonable efforts).
Secondly, the presumption of revocation is rebuttable and the person seeking to rebut the presumption may rely on the doctrine of conditional revocation. It is for him to (i) show some evidence that the will has been destroyed; (ii) prove the existence of the condition upon which revocation was wholly and solely premised; and (iii) the non-fulfilment of that condition such that the will he is seeking to rely on is still valid.
Lastly, the presumption against intestacy operates as a rule of construction in a case where the testator’s intention is ambiguous and the presumption of revocation has not arisen or has been rebutted by the doctrine of conditional revocation.
These principles were applied in WEZ v WFA.4WEZ v WFA (2022) SGFC 62. In this case, the former wife and residuary legatee of the testator applied to admit a copy of the Will for Grant of Probate. The original of the Will could not be located. The Court took into account that the wife and the testator had divorced and the testator had in his last days asked his daughter to engage a lawyer in concluding that the former wife had failed to rebut the presumption of revocation.
Testamentary Capacity
On the issue of testamentary capacity, the law has not changed since Chee Mu Lin Muriel v Chee Ka Lin Caroline.5Chee Mu Lin Muriel v. Chee Ka Lin Caroline (2010) 4 SLR 373 This has been re-stated in cases such as ULV v ULW,6ULV v. ULW (2019) 3 SLR 1270 UWF v UWH7UWF v. UWH (2021) 4 SLR 314 (UWF) and WWI v WWJ8WWI v. WWJ (2024) SGFC 22 (affirmed on appeal (2024) SGHCF 28) (WWI).
For a valid Will, the testator must have the mental capacity to make a Will, have knowledge and approve of the contents of the Will, and be free from undue influence or the effects of fraud. The testator must also have testamentary capacity. That is, the testator must understand the nature of the act and consequences of executing the Will, know the extent of his property which he is disposing, know who his beneficiaries are, and appreciate their claims to his property and be free from an abnormal state.
In UWF, the Court clarified that undue influence in the probate context meant coercion, that is, the testator was coerced into making a Will, or part of it, which he did not want to make. The persuasion is of such intensity as to overpower his volition but without actually convincing him.
In WWI, the Court stated that an indication of testamentary capacity would be the rationality of the Will having regard to its terms and identities of the beneficiaries.
Executor, Administrator and Trustee
The division of roles between those of an administrator/executor and those of a trustee remains. The administrator/executor “calls in” the estate, collects and converts the assets into cash, and pays all the testamentary expenses, estate duty, debts and legacies. When this is done, his duty as the administrator/executor is discharged, he steps into the shoes of a trustee.9Foo Jee Boo v. Foo Jhee Tuang (2016) SGHC 260 and Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v. Ong Wui Swoon (2019) SGCA 61
The importance of this distinction is illustrated in UJT v UJR10UJT v. UJR (2018) 4 SLR 931 (UJT) and in VIK v VIL (VIK).11VIK v. VIL (2021) 3 SLR 857 In UJT, the Court pointed out that a sole personal representative of an estate has the power to sell land belonging to the deceased’s estate12see section 15(4) Trustees Act 1967 while by contrast, a trustee must exercise his power of sale with another trustee except where the trustee is a trust corporation.13see sections 15(2) and 15(3) of the Trustees Act 1967
In VIK, the issue arose as to whether the applicant was acting as an administrator or a trustee in their application to court for a power of sale. 14The Will of the testator provided the trustee (and not the administrator) with the power of sale. Section 56 of the Trustees Act 1967 (“TA”) however, applies to both an administrator and a trustee, by reason of sections 2(1) and (3) TA which defined trustee to include executors and administrators. The Court held that as not all liabilities of the estate has been paid, the applicant was acting in their role as administrators.
Whether the personal representative is an executor or an administrator affects the right of the party to litigate for the deceased’s estate. The general principle is stated by Chao Hick Tin JA in Teo Gim Tiong v Krishnasamy.15Teo Gim Tiong v. Krishnasamy Pushpavathi (legal representative of the estate of Maran s/o Kannakasabai, deceased) (2014) 4 SLR 15 Executorship takes effect from the moment of death and the executor can be substituted in place of the deceased in court proceedings, without a grant of probate. For intestacy cases, until such time as the grant of letters of administration is extracted, the cause of action of the deceased estate is vested in the Public Trustee.16See section 37 of the Probate and Administration Act 1934 The administrator could not lawfully commence or continue action on behalf of the estate, until the grant of letters of administration is extracted.17This was elaborated further in Phoa Eugene (personal representative of the estate of Evelyn Phoa (alias Lauw Evelyn Siew Chiang), deceased and personal representative of the estate of William Phoa, deceased) v Oey Liang Ho (alias Henry Kasenda) (sole executor of the estate of Wirio Kasenda (alias Oey Giok Tjeng), deceased) (2024) 4 SLR 1108 (Phoa Eugene) which held that when the grant of the application for letters of administration is obtained, the property of the intestate is vested in the administrator. The authority to administer the deceased’s estate is conferred upon the administrator only upon the extraction of the sealed grant of letters of administration. Likewise, until the reseal of a foreign grant is extracted in Singapore, the administrator has no authority to administer the deceased’s estate. See also China Taiping Insurance v Low Yi Lian Cindy (2018) 4 SLR 523. The proper party to obtain remedy on behalf of estate is the executor or administrator of the estate; on behalf and for a mentally incapable litigant is its donee or deputy. Dependents under the Workmen Injury and Compensation Act claim in their own capacity, and not that of the injured person.
The rule that only the executor or the administrator may sue is subject to the exception established locally in Wong Moy (administratrix of the estate of Theng Chee Khim, deceased) v Soo Ah Choy18Wong Moy (administratrix of the estate of Theng Chee Khim, deceased) v Soo Ah Choy (1996) 3 SLR(R) 27 (Wong Moy) which allows a beneficiary to sue on behalf of the estate. Crucially, there is no restriction as to the kinds of action that a beneficiary may institute to protect the estate’s assets, save that the beneficiary cannot be in a better position than a trustee carrying out his duties in a proper manner.19see Wong Moy at (12), (14), (24) and (28)
In Mustaq Ahmad v Ayaz Ahmed 20Mustaq Ahmad (alias Mushtaq Ahmad s/o Mustafa) v Ayaz Ahmed (2024) 1 SLR 1016 (Mustaq Ahmad) the High Court exercising its appellate jurisdiction allowed the beneficiary to commence minority oppression proceedings with respect to a company in which the estate is a shareholder (as the alleged wrongdoer was also the administrator of the estate). The Court reiterated that the test remains that in Wong Moy,21In Sia Chin Sun v Yong Wah Poh (2019) 3 SLR 1168, where the claimant had applied to pursue the estate’s pecuniary claim, the learned Judge in the High Court had held that the Wong Moy exception only permitted a beneficiary to bring “proprietary claims to protect and preserve the assets of the estate”. In Mustaq Ahmad at (104), the Court was of the view that Sia Chin Sun v Yong Wah Poh does not stand for any legal proposition regarding limits to the types of claims that a beneficiary may bring on behalf of the estate. that is, in considering whether a beneficiary should be allowed to commence or maintain proceedings for the estate, all the circumstances of the case should be considered, including the nature of the assets, the position of the personal representative and the reason for the default of the personal representative.22It would also be pertinent to consider whether the circumstances made it impossible or seriously inconvenient for the representative to take proceedings.
In Phoa Eugene,23Phoa Eugene (personal representative of the estate of Evelyn Phoa (alias Lauw Evelyn Siew Chiang), deceased and personal representative of the estate of William Phoa, deceased) v Oey Liang Ho (alias Henry Kasenda) (sole executor of the estate of Wirio Kasenda (alias Oey Giok Tjeng), deceased) (2024) 4 SLR 1108 the Court held that the Wong Moy exception applied and allowed a beneficiary to be added to proceedings, despite Order 15 rule 15(1) of the Rules of Court 2014 (RoC)24rule 364 of the Family Justice Rules 2014 (FJR) which only allowed one of the litigating parties to be appointed to represent the estate.
Duties of Personal Representatives
Lakshmi Prataprai Bhojwani v Moti Harkishindas Bjohwani25Lakshmi Prataprai Bhojwani (alias Mrs Lakshmi Jethanand Bhojwani) v MotiHarkishindas Bjohwani (2019) 3 SLR 356 (Lakshmi) deals with the duty of an executor and trustee to account to the beneficiaries. The Court made the distinction between (1) named beneficiaries whose benefits are to be paid out based on the discretion of the trustee; and (2) persons who are members of a beneficiary class and hence possible beneficiaries. Named beneficiaries are entitled to an account from the executor/ trustee as they have an identifiable interest in the estate regardless of the manner in which the trustee’s discretion may be exercised; but not persons who are possible beneficiaries as part of a beneficiary class. A trustee’s duty to account is limited to matters which occurred in their term as a trustee and assets which were in their control as trustee. The Court may also, in its discretion, decline to make an order for an account if it will be oppressive for the trustee to do so or if there are other good reasons.
In Mustaq Ahmad v Providentia Wealth Management Ltd26Mustaq Ahmad @ Mushtaq Ahmad s/o Mustafa v Providentia Wealth Management Ltd (2023) SGHCF 52 the Court stated that as a starting point, a beneficiary does not have any entitlement as of right to disclosure of trust documents. This, however, is to be balanced against the beneficiary’s right for an account and the need to maintain trust confidentiality. The Court refused the applicant’s request for disclosure of communication between the trustee and other beneficiaries.
GDR v GDL27GDR v GDL (2022) SGHC 30 dealt with the law of assent. It held that assent may be given notwithstanding that there are debts and other liabilities still outstanding. Executors, when they assent, should be satisfied that the transferee is entitled to the distribution, that a valid receipt can be obtained, and the estate has sufficient funds to meet any remaining liabilities after distribution.
GDR v GDL was followed by Mustaq Ahmad v Providentia Wealth Management Ltd28Mustaq Ahmad @ Mushtaq Ahmad s/o Mustafa v Providentia Wealth Management Ltd (2023) SGHCF 53. This is related to but a different decision from Mustaq Ahmad @ Mushtaq Ahmad s/o Mustafa v Providentia Wealth Management Ltd (2023) SGHCF 52 referred to above. wherein the applicant applied for interim distributions from the estate. The Court held, consistent with the decision in Ong Wui Teck v Ong Wui Soon,29Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Soon (2019) SGCA 61 that once an executor decides that he no longer requires the estate’s assets for the satisfaction of liabilities, he should assent to the legacy; delaying distribution where there is sufficient value and liquidity is a breach of duty.
In British and Malayan Trustees Limited v Ameen Ali Salim Talib,30British and Malayan Trustees Limited v Ameen Ali Salim Talib (2024) SGHC 203 (Ameen) the trustee had over the years, distributed the income of a trust based on an interpretation of a provision of the Will, which though supported by legal opinions, was held by the Court to be erroneous. The Court allowed the trustee’s application to court for recoupment of overpayment from the beneficiaries’ future distribution.
Administration Action
The Court in Ameen31This is an administration action which can be made under Order 80 rule 2(1) RoC or rule 786 FJR. The purpose of these administration actions is to provide guidance to personal representatives in the performance of their duties or protection to beneficiaries and creditors against the actions of personal representatives. affirmed the four categories of administration action32As stated in PT v Cooper (2001) WTLR 901 and accepted in Foo Jee Seng v Foo Jhee Tuang (2012) 1 SLR 211 – (1) where the issue is whether some proposed action is within the trustees’ powers; (2) where the issue is whether the proposed course of action is a proper exercise of the trustees’ powers; (3) where there is a surrender of discretion to the Court (eg where the trustees are deadlocked, conflicted from acting or other reasons); and (4) where the trustees have actually taken action and the action is attacked as being either outside their powers or an improper exercise of their powers.
Of interest is the second category – where the trustee’s decision is “particularly momentous”,33Such as on the facts of Ameen. it may be prudent for the trustee to obtain the blessing of the court for their proposed action.34An interesting illustration of this is the case of Grand View Private Trust Co Ltd v Wen-Young Wong (2022) UKPC 47, a Privy Council decision on appeal from the Court of Appeal for Bermuda.
Administration of Estate
In HSBC Trustee (Singapore) Limited v Carolyn Fong Wai Lyn (Carolyn Fong),35HSBC Trustee (Singapore) Limited v Carolyn Fong Wai Lyn (2016) SGHC 31 the estate was left with no liquidity after years of litigation. On the application of the administrator, the Court allowed the administrator to mortgage two properties instead of the option to sell one of the properties. A few years later, the case returned to the courts as VIK v VIL36VIK v VIL (2021) 3 SLR 857 with the administrator seeking a sale of one of the properties as they had not been able to procure any mortgages. The Court held that there was no res judicata in respect of its earlier decision37HSBC Trustee (Singapore) Limited v .Carolyn Fong Wai Lyn (2016) SGHC 31 declining to order a sale.
Removal of Personal Representatives
An application to remove a personal representative can be made at various junctures. In Chiang Shirley v Chiang Dong Pheng,38Chiang Shirley v Chiang Dong Pheng (2015) 3 SLR 770 the applicant objected to the grant being made to the executor named in the Will, under sections 8(1) and 55 of the Probate and Administration Act 1934 (PAA). For this, the test is whether there is evidence that it would be undesirable or unsafe for the estate to be in the hands of the named executor and whether there is someone else (not in an acrimonious relationship) to pass the administration to.
In Ong Wui Swoon v Ong Wui Teck,39Ong Wui Swoon v Ong Wui Teck (2015) SGDC 270 the application was made to revoke a grant to an executor under section 32 of PAA. The revocation is to be made with “sufficient cause”, which is “undue and improper administration of the estate in total disregard of the interests of the beneficiaries.” The Court will consider whether the revocation of the grant is in the interest of the beneficiaries.
In Carolyn Fong,40HSBC Trustee (Singapore) Limited v Carolyn Fong Wai Lyn (2016) SGHC 31 the sole administrator applied to be discharged due to unpaid fees. The Court considered the removal without a replacement as an extreme remedy which would be inappropriate in most cases. The court refused the application.41Query: whether it is even possible for a sole administrator/trustee to be discharged in view of section 40 Trustees Act 1967.
Trustee’s Liability
UVJ v UVH42UVJ v UVH (2020) 2 SLR 336 (lower court’s decisions at (2020) 3 SLR 1329, and (2020) 3 SLR 1355) stands for the proposition that there must be causation between breach of fiduciary duty and profit made for an account of profit.
Jurisdiction of Courts
It is important to be aware of the limits of the jurisdiction of the Family Courts.43Specifically, as stated in section 26(3A) of the Family Justice Act 2014, the jurisdiction of the Family Courts is set out in sections 17(1)(a), (d), (e) and (f) and 17A of the Supreme Court of Judicature Act 1969.
In URF v URH44URF v URH (2020) 3 SLR 314, in defending an application to propound a 2008 Will of the deceased, the defendant inter alia, challenged transfers of monies made by the deceased to the applicant in his lifetime. The Family Court held that such claims relating to inter vivos transfers are not within its jurisdiction.
Tan Zhi Wei Alan v Tan Jia Lin Jaylin45Tan Zhi Wei Alan v Tan Jia Lin Jaylin (2023) SGHC 271 was an application made to the General Division of High Court to remove a joint administrator. The High Court dismissed the application in light of section 26(3A) of the Family Justice Act 2014 (FJA). Section 26(3A) FJA provided that if any family proceedings may be heard and determined by the Family Court or by the Family Division of the High Court, those proceedings must in the first instance be commenced in a Family Court.
Other Estate Related Issues
The Court in UAM v UAN46UAM v UAN (2018) 4 SLR 1086 held that there is no limitation period applicable to probate claims. The defence of laches could be applied to probate proceedings, but given the policy to give effect to the wishes of the testator, the threshold for the defence of laches is higher than in others.
The Court in Chye Seng Kait v Chye Seng Fong47Chye Seng Kait v Chye Seng Fong (executor and trustee of the estate of Chye You, deceased) (2021) 2 SLR 1131 held that the deceased’s intention for the right of survivorship to apply was clear in clause 2 of the Will, and accordingly the jointly held assets were gifted to the surviving owner. The Court’s approach in a case where the Will provides for the application of resulting trust (so that the jointly held asset is to be dealt with according to the provisions of the Will) is less clear but definitely more interesting.48See for instance, Khoo Phaik Eng Katherine v Khoo Phaik Ean Patricia (2023) SGHC 314
In relation to claims by or against the estate, the Court stated that it is the duty of the executor to determine the extent of assets and liabilities of the deceased and act diligently and reasonably in realising the assets. It is for the executor to balance between whether there was a cause of action and the potential value of the cause given the costs to the estate.
The Court further endorsed the practice of including a condition of acceptance of the estate’s account in the final distribution of the residuary estate.
VTL v VTM49VTL v VTM (2021) SGHCF 30 held that a mutual will (i.e. a Will which is executed by a testator pursuant to an agreement not to revoke) takes precedence over subsequent wills.
Determination of Mental Capacity
The locus classicus remains set out in the Court of Appeal decision in Re BKR.50Re BKR (2015) 4 SLR 81 The test as to whether a person lacks capacity is set out in section 4 of the Mental Capacity Act 2008 (MCA). It is decision-specific and time-specific with a clinical component (impairment of, disturbance in the functioning of the mind or brain) and a functional component (inability to make that particular decision at the material time). The Court will require expert evidence for the clinical component while the functional component is a question for the Court51As the assessment as to whether a person has mental capacity is fact-driven, the Court is watchful as to the evidence before the Court. The Court placed little weight on video recordings which are edited or do not provide context (see WEW v WEX (2022) SGFC 60; (2022) SGHCF 32, but contrast with the weight placed on video recording in Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896), medical reports obtained from “doctor shopping” or where doctors are not properly briefed or even mis-represented to (see VKX v. VKW (2024) SLR(FC) 18). for which there is limited scope for medical experts.
The fact that a person has a medical impairment does not necessarily mean that he lacked mental capacity.52ULP v ULS (2021) 5 SLR 1291
In BUV v BUU,53BUV v BUU (2020) 3 SLR 1041 based inter alia, on P’s performance under cross examination, the Court held that P did not have the requisite mental capacity. The Court held that the “assistance” to be provided to P for his decision making in sections 3(3) and 5(2) MCA refers to “facilitative assistance” which is aimed at helping a person retain his decision-making ability. There must be a base level of capacity.54See also WWI v WWJ (2004) SGFC 22
Goh Yng Yng Karen v Goh Yong Chiang Kelvin55Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896 followed the approach in Re BKR as to the interaction between mental impairment and undue influence. The Court will have regard of the actual circumstances holistically and decide whether the undue influence caused P to be unable to make decisions.56In ULP v ULS (2021) 5 SLR 1291, it was held that though P had the mental capacity to execute her Lasting Power of Attorney (LPA), she was under undue influence from her son. Her LPA was revoked.
Choice of Deputies
VUW v VUT57VUW v VUT (2021) SGHCF 41 overruled the practice of appointing one plaintiff and one defendant as deputies.58The learned Debbie Ong J held that it is not appropriate or practical as the opposing interests of the deputies where trust was lacking may negatively impact the welfare of P. Given P’s need for consistent and constant care, neither was it in P’s interest for P to be cared for in alternate weeks by each deputy.
Statutory Wills
BHR v BHS59BHR v BHS (2013) SGDC 149 deals with the Court’s exercise of its power60Section 23(1)(k) MCA to execute a Will for P. The overarching principle is the best interest of P, including but not limited to the factors set out in section 6 MCA.61in particular sections 6(8) and (9) MCA The learned DJ Foo Tuat Yien held that the weight to be attached to the different factors may differ depending on the circumstances of each case and features or factors of “magnectic importance” will have decisive influence on its determination. These can include how P will be remembered62TCZ v TDA, TDB and TDC (2015) SGFC 63 and the provisions in P’s previous Will.63P’s previous Will is a relevant written statement, but the weight to be given to it will depend upon the circumstances under which it was prepared (for instance, whether P lacked capacity). The Court should not refrain from directing the execution of a statutory will where the validity of an earlier will is in dispute. The existence and nature of the dispute and the ability of court to investigate the issues which underlie it are relevant in deciding whether it is in P’s best interest to order the execution of a statutory Will.
Other Mental Capacity Related Issues
In Re TQR,64Re TQR (2016) SGFC 98 Colin Tan DJ set out the considerations in granting investment powers to the deputy.65These include whether P has enough assets for investment, the relationship between the deputy and P in particular, whether the deputy is a close relative or a future beneficiary of P, and the safeguards for bad investments.
WBK v WBL66WBK v WBL (2024) SLR(FC) 192 provided guidance as to the powers of a donee for personal welfare. The Court took into account that the donor has chosen to empower the donee. Accordingly, the donee may place restrictions on access to P so long as these are not unreasonable. The donee is not required to consult with others, including P’s family members, as to the medical care of P and may instruct doctors to communicate with the donee only.
The Court in ULP v ULS67ULP and others v ULS (2018) SGFC 43 set out the options available to an applicant to obtain a medical report on P.68Applications may be made under section 20(2) MCA for the Court to authorise, on P’s behalf, the release of P’s medical record; under section 18(2)(a) MCA for the Court to direct the donee of an LPA not to object to the release of medical records; under rule 495 FJR to administer interrogatories to non-party; and/or to issue a subpoena for the production of the medical records. Section 36 MCA is for situations where an order is needed urgently to protect P’s interests and not for the production of medical reports. Likewise, paragraph 19 of the First Schedule of the Supreme Court of Judicature Act 1969 allows orders to be made for medical examination of a person who is a party to the legal proceedings.69Goh Tze Chien v Tan Teow Chee (2024) SGHC 1
The Court in WLR v WLT70WLR v WLT (2023) 5 SLR 1372 held that section 23(1)(d) MCA does not give the Court power to appoint a deputy as a director.
Where tortfeasors apply to be joined as a party in legal proceedings for appointment of deputies, the court in TWD v UQE71TWD v UQE (2019) 3 SLR 662 held that the relevant provision is rule 178(2) of the Family Justice Rules 2014 (FJR) and not Order 15 rule 6(2)(b) RoC. To allow such joinders, the advantage of the joinder had to outweigh the disadvantages.
Practice Reminders
The various cases in these areas in the last 10 years also illustrated the unusual position which lawyers may find themselves in, whether dealing with other family members of the client, dealing with a client who may have been alleged to lack mental capacity or putting in place legal documentation to facilitate the intention of the client. While trite, it remains a good reminder that as an advocate and solicitor, the lawyer may owe other duties, in addition to the duty to act in the best interest of the client.
The Court of Appeal has stated in several cases72See for example, Kuek Siang Wei v Kuek Siew Chew (2015) 5 SLR 357, Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin (2015) 5 SLR 62 involving family arrangements that the solicitor acting for the administrator or executor may owe a duty to the beneficiaries and potential beneficiaries and there are possibilities of conflicts of interest. The solicitor should be conscious of these and consider the beneficiaries’ need for independent legal advice and/or full and frank disclosure of opinions rendered by the solicitors.
Powers of attorney, when executed, may be used against the interest of the donor. Accordingly, solicitors must be conscious of the standard expected of lawyers in discharging their duties to client in the execution of powers of attorney.73Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896. The solicitor is expected to speak with the client first, and take sufficient steps to satisfy himself that the client has mental capacity. Charging a small fee is not an excuse for cutting corners.
Endnotes
| ↑1 | This amendment was precipitated by the case Cheo Yeoh & Associates LLC v AEL (2015) 4 SLR 325, where beneficiaries who suffered losses because of an invalid Will sued the solicitor for professional negligence. On the issue of mitigation of damages, the Court of Appeal citing English cases, took the view that the claimant should seek rectification of the Will before proceeding on a claim for damages against the solicitor. The Court of Appeal however noted that the remedy of rectification was not available in Singapore. (See also, parliamentary comments by Ms Indranee Rajah on 9 May 2016, Parliament No 13, Session No 1, Volume No 94, Sitting No 20 at 4:04 pm and 4:32 pm) |
|---|---|
| ↑2 | In UK though, in Marley v Rawlings (2014) UKSC 2, a husband and wife had signed each other’s will. Rectification was allowed. |
| ↑3 | Cheo Yeoh & Associates LLC v AEL (2015) 4 SLR 325 |
| ↑4 | WEZ v WFA (2022) SGFC 62. In this case, the former wife and residuary legatee of the testator applied to admit a copy of the Will for Grant of Probate. The original of the Will could not be located. The Court took into account that the wife and the testator had divorced and the testator had in his last days asked his daughter to engage a lawyer in concluding that the former wife had failed to rebut the presumption of revocation. |
| ↑5 | Chee Mu Lin Muriel v. Chee Ka Lin Caroline (2010) 4 SLR 373 |
| ↑6 | ULV v. ULW (2019) 3 SLR 1270 |
| ↑7 | UWF v. UWH (2021) 4 SLR 314 |
| ↑8 | WWI v. WWJ (2024) SGFC 22 (affirmed on appeal (2024) SGHCF 28) |
| ↑9 | Foo Jee Boo v. Foo Jhee Tuang (2016) SGHC 260 and Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v. Ong Wui Swoon (2019) SGCA 61 |
| ↑10 | UJT v. UJR (2018) 4 SLR 931 |
| ↑11 | VIK v. VIL (2021) 3 SLR 857 |
| ↑12 | see section 15(4) Trustees Act 1967 |
| ↑13 | see sections 15(2) and 15(3) of the Trustees Act 1967 |
| ↑14 | The Will of the testator provided the trustee (and not the administrator) with the power of sale. Section 56 of the Trustees Act 1967 (“TA”) however, applies to both an administrator and a trustee, by reason of sections 2(1) and (3) TA which defined trustee to include executors and administrators. |
| ↑15 | Teo Gim Tiong v. Krishnasamy Pushpavathi (legal representative of the estate of Maran s/o Kannakasabai, deceased) (2014) 4 SLR 15 |
| ↑16 | See section 37 of the Probate and Administration Act 1934 |
| ↑17 | This was elaborated further in Phoa Eugene (personal representative of the estate of Evelyn Phoa (alias Lauw Evelyn Siew Chiang), deceased and personal representative of the estate of William Phoa, deceased) v Oey Liang Ho (alias Henry Kasenda) (sole executor of the estate of Wirio Kasenda (alias Oey Giok Tjeng), deceased) (2024) 4 SLR 1108 (Phoa Eugene) which held that when the grant of the application for letters of administration is obtained, the property of the intestate is vested in the administrator. The authority to administer the deceased’s estate is conferred upon the administrator only upon the extraction of the sealed grant of letters of administration. Likewise, until the reseal of a foreign grant is extracted in Singapore, the administrator has no authority to administer the deceased’s estate. See also China Taiping Insurance v Low Yi Lian Cindy (2018) 4 SLR 523. The proper party to obtain remedy on behalf of estate is the executor or administrator of the estate; on behalf and for a mentally incapable litigant is its donee or deputy. Dependents under the Workmen Injury and Compensation Act claim in their own capacity, and not that of the injured person. |
| ↑18 | Wong Moy (administratrix of the estate of Theng Chee Khim, deceased) v Soo Ah Choy (1996) 3 SLR(R) 27 |
| ↑19 | see Wong Moy at (12), (14), (24) and (28) |
| ↑20 | Mustaq Ahmad (alias Mushtaq Ahmad s/o Mustafa) v Ayaz Ahmed (2024) 1 SLR 1016 |
| ↑21 | In Sia Chin Sun v Yong Wah Poh (2019) 3 SLR 1168, where the claimant had applied to pursue the estate’s pecuniary claim, the learned Judge in the High Court had held that the Wong Moy exception only permitted a beneficiary to bring “proprietary claims to protect and preserve the assets of the estate”. In Mustaq Ahmad at (104), the Court was of the view that Sia Chin Sun v Yong Wah Poh does not stand for any legal proposition regarding limits to the types of claims that a beneficiary may bring on behalf of the estate. |
| ↑22 | It would also be pertinent to consider whether the circumstances made it impossible or seriously inconvenient for the representative to take proceedings. |
| ↑23 | Phoa Eugene (personal representative of the estate of Evelyn Phoa (alias Lauw Evelyn Siew Chiang), deceased and personal representative of the estate of William Phoa, deceased) v Oey Liang Ho (alias Henry Kasenda) (sole executor of the estate of Wirio Kasenda (alias Oey Giok Tjeng), deceased) (2024) 4 SLR 1108 |
| ↑24 | rule 364 of the Family Justice Rules 2014 (FJR) |
| ↑25 | Lakshmi Prataprai Bhojwani (alias Mrs Lakshmi Jethanand Bhojwani) v MotiHarkishindas Bjohwani (2019) 3 SLR 356 |
| ↑26 | Mustaq Ahmad @ Mushtaq Ahmad s/o Mustafa v Providentia Wealth Management Ltd (2023) SGHCF 52 |
| ↑27 | GDR v GDL (2022) SGHC 30 |
| ↑28 | Mustaq Ahmad @ Mushtaq Ahmad s/o Mustafa v Providentia Wealth Management Ltd (2023) SGHCF 53. This is related to but a different decision from Mustaq Ahmad @ Mushtaq Ahmad s/o Mustafa v Providentia Wealth Management Ltd (2023) SGHCF 52 referred to above. |
| ↑29 | Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Soon (2019) SGCA 61 |
| ↑30 | British and Malayan Trustees Limited v Ameen Ali Salim Talib (2024) SGHC 203 |
| ↑31 | This is an administration action which can be made under Order 80 rule 2(1) RoC or rule 786 FJR. The purpose of these administration actions is to provide guidance to personal representatives in the performance of their duties or protection to beneficiaries and creditors against the actions of personal representatives. |
| ↑32 | As stated in PT v Cooper (2001) WTLR 901 and accepted in Foo Jee Seng v Foo Jhee Tuang (2012) 1 SLR 211 |
| ↑33 | Such as on the facts of Ameen. |
| ↑34 | An interesting illustration of this is the case of Grand View Private Trust Co Ltd v Wen-Young Wong (2022) UKPC 47, a Privy Council decision on appeal from the Court of Appeal for Bermuda. |
| ↑35 | HSBC Trustee (Singapore) Limited v Carolyn Fong Wai Lyn (2016) SGHC 31 |
| ↑36 | VIK v VIL (2021) 3 SLR 857 |
| ↑37 | HSBC Trustee (Singapore) Limited v .Carolyn Fong Wai Lyn (2016) SGHC 31 |
| ↑38 | Chiang Shirley v Chiang Dong Pheng (2015) 3 SLR 770 |
| ↑39 | Ong Wui Swoon v Ong Wui Teck (2015) SGDC 270 |
| ↑40 | HSBC Trustee (Singapore) Limited v Carolyn Fong Wai Lyn (2016) SGHC 31 |
| ↑41 | Query: whether it is even possible for a sole administrator/trustee to be discharged in view of section 40 Trustees Act 1967. |
| ↑42 | UVJ v UVH (2020) 2 SLR 336 (lower court’s decisions at (2020) 3 SLR 1329, and (2020) 3 SLR 1355) |
| ↑43 | Specifically, as stated in section 26(3A) of the Family Justice Act 2014, the jurisdiction of the Family Courts is set out in sections 17(1)(a), (d), (e) and (f) and 17A of the Supreme Court of Judicature Act 1969. |
| ↑44 | URF v URH (2020) 3 SLR 314 |
| ↑45 | Tan Zhi Wei Alan v Tan Jia Lin Jaylin (2023) SGHC 271 |
| ↑46 | UAM v UAN (2018) 4 SLR 1086 |
| ↑47 | Chye Seng Kait v Chye Seng Fong (executor and trustee of the estate of Chye You, deceased) (2021) 2 SLR 1131 |
| ↑48 | See for instance, Khoo Phaik Eng Katherine v Khoo Phaik Ean Patricia (2023) SGHC 314 |
| ↑49 | VTL v VTM (2021) SGHCF 30 |
| ↑50 | Re BKR (2015) 4 SLR 81 |
| ↑51 | As the assessment as to whether a person has mental capacity is fact-driven, the Court is watchful as to the evidence before the Court. The Court placed little weight on video recordings which are edited or do not provide context (see WEW v WEX (2022) SGFC 60; (2022) SGHCF 32, but contrast with the weight placed on video recording in Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896), medical reports obtained from “doctor shopping” or where doctors are not properly briefed or even mis-represented to (see VKX v. VKW (2024) SLR(FC) 18). |
| ↑52 | ULP v ULS (2021) 5 SLR 1291 |
| ↑53 | BUV v BUU (2020) 3 SLR 1041 |
| ↑54 | See also WWI v WWJ (2004) SGFC 22 |
| ↑55 | Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896 |
| ↑56 | In ULP v ULS (2021) 5 SLR 1291, it was held that though P had the mental capacity to execute her Lasting Power of Attorney (LPA), she was under undue influence from her son. Her LPA was revoked. |
| ↑57 | VUW v VUT (2021) SGHCF 41 |
| ↑58 | The learned Debbie Ong J held that it is not appropriate or practical as the opposing interests of the deputies where trust was lacking may negatively impact the welfare of P. Given P’s need for consistent and constant care, neither was it in P’s interest for P to be cared for in alternate weeks by each deputy. |
| ↑59 | BHR v BHS (2013) SGDC 149 |
| ↑60 | Section 23(1)(k) MCA |
| ↑61 | in particular sections 6(8) and (9) MCA |
| ↑62 | TCZ v TDA, TDB and TDC (2015) SGFC 63 |
| ↑63 | P’s previous Will is a relevant written statement, but the weight to be given to it will depend upon the circumstances under which it was prepared (for instance, whether P lacked capacity). The Court should not refrain from directing the execution of a statutory will where the validity of an earlier will is in dispute. The existence and nature of the dispute and the ability of court to investigate the issues which underlie it are relevant in deciding whether it is in P’s best interest to order the execution of a statutory Will. |
| ↑64 | Re TQR (2016) SGFC 98 |
| ↑65 | These include whether P has enough assets for investment, the relationship between the deputy and P in particular, whether the deputy is a close relative or a future beneficiary of P, and the safeguards for bad investments. |
| ↑66 | WBK v WBL (2024) SLR(FC) 192 |
| ↑67 | ULP and others v ULS (2018) SGFC 43 |
| ↑68 | Applications may be made under section 20(2) MCA for the Court to authorise, on P’s behalf, the release of P’s medical record; under section 18(2)(a) MCA for the Court to direct the donee of an LPA not to object to the release of medical records; under rule 495 FJR to administer interrogatories to non-party; and/or to issue a subpoena for the production of the medical records. |
| ↑69 | Goh Tze Chien v Tan Teow Chee (2024) SGHC 1 |
| ↑70 | WLR v WLT (2023) 5 SLR 1372 |
| ↑71 | TWD v UQE (2019) 3 SLR 662 |
| ↑72 | See for example, Kuek Siang Wei v Kuek Siew Chew (2015) 5 SLR 357, Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin (2015) 5 SLR 62 |
| ↑73 | Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896. |
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