fc_judgments: 26

Data source: lawnet.sg/lawnet/web/lawnet/free-resources

This data as json

_id _item_id tags date court case-number title citation url counsel timestamp coram html _commit
26 c47df5046e942dab226e77ba4539882428436205 
[
    "Succession and Wills \u2013 Testamentary capacity \u2013 Undue Influence \u2013 Whether the testator lacked testamentary capacity at the time of making and executing will \u2013 Whether the testator understood the will \u2013 Whether the testator made and executed will under undue influence"
]
 2024-04-29 Family Court Suit No. 1 of 2022 WWI v WWJ [2024] SGFC 22 https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31439-SSP.xml 
[
    "Ms Hu Huimin of M/s CNPLaw LLP for the Plaintiff",
    "Mr Kang Kim Yang & Ms Mary Leong of Templars Law LLC for the Defendant."
]
 2024-05-03T16:00:00Z[GMT] Jason Gabriel Chiang <root><head><title>WWI v WWJ</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WWI <em>v</em> WWJ </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31439-SSP.xml')">[2024] SGFC 22</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Suit No. 1 of 2022</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">29 April 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Jason Gabriel Chiang </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Ms Hu Huimin of M/s CNPLaw LLP for the Plaintiff; Mr Kang Kim Yang &amp; Ms Mary Leong of Templars Law LLC for the Defendant. </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> WWI — WWJ </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Succession and Wills</span> – <span style="font-style:italic">Testamentary capacity</span> – <span style="font-style:italic">Undue Influence</span> – <span style="font-style:italic">Whether the testator lacked testamentary capacity at the time of making and executing will</span> – <span style="font-style:italic">Whether the testator understood the will</span> – <span style="font-style:italic">Whether the testator made and executed will under undue influence</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">29 April 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Jason Gabriel Chiang:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1       No one is ever fully prepared for the loss of a loved one. The making of a will is but one aspect in preparing for one’s parting. It is undoubtedly so, that one of the greatest legacies one could leave behind would be harmony in the family. This case, however, involved a family which was left in dispute over the validity of 3 different wills after the passing of the Matriarch of the family. This unfortunate circumstance was further complicated by issues of the Matriarch’s mental health in the latter days of her life, during which, 2 of the wills in question were executed. Each of these 2 wills presented a very different picture of what the Court had to interpret to be the will of the Matriarch for her estate.</p> <p class="Judg-1"><a id="p1_2"></a>2       During the Matriarch’s lifetime, 3 wills had been executed:</p> <p class="Judg-2"><a id="p1_2-p2_a"></a>(a)     The 1<sup>st</sup> Will, which was executed on 22 March 2005 (“<b>1<sup>st</sup> Will</b>”), bequeathed the Matriarch’s estate, which mainly consisted of the half share of a landed property (the “<b>Estate</b>”), to the Defendant after the making of gifts of S$5,000 to each of 7 named daughters. The Defendant was also appointed as her sole executor and trustee under the 1<sup>st</sup> Will;</p> <p class="Judg-2"><a id="p1_2-p2_b"></a>(b)     The 2<sup>nd</sup> Will, which was executed on 6 April 2017 (“<b>2<sup>nd</sup> Will</b>”), bequeathed the Matriarch’s Estate wholly to the Plaintiff, but if the Plaintiff were to predecease the Matriarch, this would go to the Plaintiff’s 1<sup>st</sup> Son. The Plaintiff was appointed as her sole executor and trustee under the 2<sup>nd</sup> Will; and</p> <p class="Judg-2"><a id="p1_2-p2_c"></a>(c)     The 3<sup>rd</sup> Will, which was executed on 19 June 2017 (“<b>3<sup>rd</sup> Will</b>”), largely mirrored the 1<sup>st</sup> Will, save that the gifts to the 7 named daughters was increased to S$10,000 each. The Defendant was likewise appointed as her sole executor and trustee under the 3<sup>rd</sup> Will.</p> <p class="Judg-1"><a id="p1_3"></a>3       In her sunset days, the Matriarch suffered from dementia, which got progressively worse. After her passing, the Plaintiff and the Defendant, who were both her sons, made different claims about the validity of the various wills. Based on their contentions, there were several possible outcomes:</p> <p class="Judg-2"><a id="p1_3-p2_a"></a>(a)     The 3<sup>rd</sup> Will is declared valid, and thus, revoked the prior 1<sup>st</sup> and 2<sup>nd</sup> Wills, regardless as to whether those wills were valid or not;</p> <p class="Judg-2"><a id="p1_3-p2_b"></a>(b)     The 3<sup>rd</sup> Will is declared invalid, but the 2<sup>nd</sup> Will is declared as valid, and thus, revoked the 1<sup>st</sup> Will, regardless of whether it was valid;</p> <p class="Judg-2"><a id="p1_3-p2_c"></a>(c)     The 2<sup>nd</sup> and the 3<sup>rd</sup> Wills are declared invalid, and the 1<sup>st</sup> Will is declared to be valid and effective; and</p> <p class="Judg-2"><a id="p1_3-p2_d"></a>(d)     The 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> Wills are all declared to be invalid and thus section 7 of the Intestate Succession Act 1967 (“<b>ISA</b>”) applies for the distribution of the estate to the various beneficiaries.</p> <p class="Judg-1"><a id="p1_4"></a>4       Ultimately, I held that both the 2<sup>nd</sup> and 3<sup>rd</sup> Wills were invalid as the Matriarch did not have the requisite testamentary capacity to execute those wills. I also held that the Plaintiff failed to make out his case that the 1<sup>st</sup> Will had been procured by undue influence to invalidate it. Therefore, the 1<sup>st</sup> Will was given effect. The Plaintiff and the Defendant, both dissatisfied with my decision, filed their respective appeals.</p> <p class="Judg-Heading-1">Facts</p> <p class="Judg-Heading-2">The parties </p> <p class="Judg-1"><a id="p1_5"></a>5       The Plaintiff and the Defendant were both Singaporeans, in their 50s and 60s, and were 2 of the 14 children of the Matriarch and the Patriarch, who predeceased her. The Matriarch and the Patriarch were married and their children are listed below according to their age:</p> <p class="Judg-2"><a id="p1_5-p2_a"></a>(a)     1<sup>st</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_b"></a>(b)     2<sup>nd</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_c"></a>(c)     3<sup>rd</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_d"></a>(d)     1<sup>st</sup> Son, the Defendant;</p> <p class="Judg-2"><a id="p1_5-p2_e"></a>(e)     4<sup>th</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_f"></a>(f)     2<sup>nd</sup> Son, who was given up for adoption to another family and was wholly uninvolved in these proceedings;</p> <p class="Judg-2"><a id="p1_5-p2_g"></a>(g)     5<sup>th</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_h"></a>(h)     6<sup>th</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_i"></a>(i)     7<sup>th</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_j"></a>(j)     8<sup>th</sup> Daughter;</p> <p class="Judg-2"><a id="p1_5-p2_k"></a>(k)     3<sup>rd</sup> Son, who was informally adopted into the family, being the son of the Patriarch with another woman;</p> <p class="Judg-2"><a id="p1_5-p2_l"></a>(l)     4<sup>th</sup> Son, the Plaintiff;</p> <p class="Judg-2"><a id="p1_5-p2_m"></a>(m)     9<sup>th</sup> Daughter; and</p> <p class="Judg-2"><a id="p1_5-p2_n"></a>(n)     10<sup>th</sup> Daughter.</p> <p class="Judg-2"><a id=""></a>(collectively referred to as the “<b>Children</b>”).</p> <p class="Judg-1"><a id=""></a>The 4<sup>th</sup>, 5<sup>th</sup>, 6<sup>th</sup>, 7<sup>th</sup>, 8<sup>th</sup>, 9<sup>th</sup> and 10<sup>th</sup> Daughters were the 7 named daughters in the 1<sup>st</sup> and the 3<sup>rd</sup> Wills.</p> <p class="Judg-1"><a id="p1_6"></a>6       The Plaintiff was a primary school teacher. He had inherited the other half of the abovementioned landed property under the Patriarch’s estate, i.e. 2 JM. Subsequently he and his family had moved from their residence to reside with the Matriarch at this property and occupied the 2<sup>nd</sup> floor, while the Matriarch occupied the 1<sup>st</sup> floor of the property.</p> <p class="Judg-1"><a id="p1_7"></a>7       The Defendant was a successful businessman, who at one point accumulated a fair bit of wealth and had multiple properties. At the time of the trial, there was some dispute as to how well the Defendant was doing financially. The Defendant and some of the other siblings assisted the Patriarch in the running of the Family Business and eventually took over management. The Defendant stayed separately from the Matriarch but would purportedly visit her regularly. Most of the siblings would meet often on Sundays, but the Defendant would not usually attend such sessions. The siblings however maintained a family WhatsApp chat group.</p> <p class="Judg-1"><a id="p1_8"></a>8       The Plaintiff had called 8 witnesses, one of whom was an expert witness, and they are listed below in the sequence of how they were called as witnesses:</p> <p class="Judg-2"><a id="p1_8-p2_a"></a>(a)     Himself, the Plaintiff;</p> <p class="Judg-2"><a id="p1_8-p2_b"></a>(b)     Dr FN, who had assessed P for issues of mental capacity in July 2017;</p> <p class="Judg-2"><a id="p1_8-p2_c"></a>(c)     3<sup>rd</sup> Daughter;</p> <p class="Judg-2"><a id="p1_8-p2_d"></a>(d)     8<sup>th</sup> Daughter;</p> <p class="Judg-2"><a id="p1_8-p2_e"></a>(e)     Estate Planner 1, who had drafted the 2<sup>nd</sup> Will and witnessed the execution of the same;</p> <p class="Judg-2"><a id="p1_8-p2_f"></a>(f)     Estate Planner 2, who had witnessed the execution of the 2<sup>nd</sup> Will;</p> <p class="Judg-2"><a id="p1_8-p2_g"></a>(g)     2<sup>nd</sup> Daughter; and</p> <p class="Judg-2"><a id="p1_8-p2_h"></a>(h)     3<sup>rd</sup> Son.</p> <p class="Judg-1"><a id="p1_9"></a>9       The Defendant had called 6 witnesses, 2 of whom were expert witnesses:</p> <p class="Judg-2"><a id="p1_9-p2_a"></a>(a)     Himself, the Defendant;</p> <p class="Judg-2"><a id="p1_9-p2_b"></a>(b)     Ms LKK, the lawyer who had dealt with the Matriarch’s execution of a Statutory Declaration relating to the said Transfer Instrument for 2 JM and related matters in September 2017;</p> <p class="Judg-2"><a id="p1_9-p2_c"></a>(c)     Dr JBL the doctor who assessed the Matriarch’s mental capacity before she executed the Transfer Instrument for 2 JM;</p> <p class="Judg-2"><a id="p1_9-p2_d"></a>(d)     Dr NBY, the doctor who assessed the Matriarch’s mental capacity before she executed the Statutory Declaration;</p> <p class="Judg-2"><a id="p1_9-p2_e"></a>(e)     Mr CJH, the lawyer who had drafted the 1<sup>st</sup> and the 3<sup>rd</sup> Wills and was also a named witness to the execution of these Wills; and</p> <p class="Judg-2"><a id="p1_9-p2_f"></a>(f)     Mr DK, the lawyer who had dealt with the execution on a Transfer Instrument for the Matriarch’s share of the landed property in July 2017.</p> <p class="Judg-1"><a id="p1_10"></a>10     Both the Plaintiff and the Defendant had their respective translators, but parties agreed that it was not necessary to call them as witnesses.</p> <p class="Judg-Heading-2">Background to the dispute</p> <p class="Judg-Heading-3">Brief history of the family</p> <p class="Judg-1"><a id="p1_11"></a>11     The Patriarch came from China to Singapore without any formal education, but through hard work, he set up the family business, which largely dealt with the cleaning and recycling of oil barrels/drums (the “<b>Family Business</b>”). The Family Business was largely managed with the assistance of the 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> Daughters, and the 3<sup>rd</sup> Son as well as the Defendant. Sometime in the 1990s, the 2<sup>nd</sup> Daughter left the business as she got married and the 3<sup>rd</sup> Sister left and became a real estate agent.</p> <p class="Judg-1"><a id="p1_12"></a>12     The Matriarch was a full-time housewife but would also independently go to the market to sell her own wares, such as plants, mangoes and items given to her by her friends. While she did not have a formal education, she was pretty savvy in the selling of her wares. She would independently do this even when she was subsequently in a wheelchair and she appeared to enjoy the interactions she had with the people in the marketplace.</p> <p class="Judg-1"><a id="p1_13"></a>13     It was undisputed that the Plaintiff, being the youngest son, was doted upon by the Patriarch and the Matriarch. They sponsored his pursuit of an undergraduate degree in Public Health in the University of North Carolina, Chapel Hill, UNC-Chapel Hill in the USA. The Matriarch visited the Plaintiff during his final year of school in 1992 to encourage him to return home after his studies. The Patriarch also separately visited the Plaintiff for his graduation and together they travelled to Washington DC. The Plaintiff returned to Singapore in 1992 and the Patriarch further took him on a trip to China with his friends. In 1993, before the Patriarch fell ill, the Plaintiff and his then girlfriend, who later became his wife, obtained a 5-room HDB close to the Patriarch and Matriarch’s residence.</p> <p class="Judg-1"><a id="p1_14"></a>14     The Defendant, being the eldest son, was given significant responsibilities of initially assisting the Family Business and then fully taking over management in 1995 after the Patriarch’s passing. Separately, the Defendant had independently set up his own businesses also dealing with matters related to the oil trade business. He was also very successful in investing in the purchase and sale of properties and at one point in time had multiple properties and significant profits from this to be able to live fairly lavishly. It was undisputed that the Defendant had become wealthy and there was some contention over the Defendant bearing the lion’s share of expenses given his good fortune. However, as of the time of the trial, the Plaintiff claimed that the Defendant’s businesses were failing and that he was in desperate need of funds and assets. The Plaintiff alleged that during the financial crisis of 1997, the Defendant was financially overstretched and had tried to use 2 JM to save his businesses and had approached the Plaintiff on this, even though the Defendant had 7 properties at that time that the Plaintiff believed he could utilize instead. The Defendant, on the other hand, strongly denied this and claimed to still be doing well financially. The Plaintiff further alleged that the Defendant later had tried to buy over the Plaintiff’s share of 2 JM, but he had denied this as the offer was an undervalue. The Defendant’s version of this was that the Matriarch had approached him to suggest that he buy off the Plaintiff’s share of 2 JM to help the Plaintiff deal with the Plaintiff’s own financial difficulties.</p> <p class="Judg-1"><a id="p1_15"></a>15     The Defendant claimed that the Patriarch would often visit him at his work at the factory when he was free and that every Sunday, he would bring his parents and some of his siblings out for a nice lunch. The Defendant stated that he would also visit the Matriarch often and that she would confide in him. He also assisted in certain medical check-ups for the Matriarch. It appeared that the Defendant did not have a particularly good relationship with the other Children, the manner he interacted with them in person or by correspondence, at times, did not endear himself to them.</p> <p class="Judg-1"><a id="p1_16"></a>16     The Plaintiff took the position that the Defendant harboured deep-seated resentment against the Matriarch for grievances when he was young. The Plaintiff claimed that the Matriarch had embarrassed him by writing some numbers on his school exercise book, and that the Matriarch had been disapproving of the Defendant’s previous female partner leading to the end of that relationship. The Plaintiff and other family members claimed that he would repeat such grievances loudly during arguments. The Plaintiff further averred that the Defendant only started treating the Matriarch better after her execution of the 1<sup>st</sup> Will. Based on the testimony evidence provided, it did appear that the Defendant’s siblings also shared similar feelings against the Defendant. The Defendant strongly objected to these allegations.</p> <p class="Judg-Heading-3">The Family Residence</p> <p class="Judg-1"><a id="p1_17"></a>17     Prior to the 1980s, the Patriarch and the Matriarch were already occupying a landed property, which was in the sole name of the Patriarch. This was a single storey detached house with 2 bedrooms (the “<b>old 4 JM</b>”). One bedroom was occupied by the Patriarch and Matriarch and another room was occupied by the Children. It was believed that the old 4 JM was mortgaged for the purposes of the Family Business.</p> <p class="Judg-1"><a id="p1_18"></a>18     While most of the family stayed together until some of them were married out, the Defendant had moved away from the rest of the family when he was about 14 years old to live with his cousin and thereafter, lived independently.</p> <p class="Judg-1"><a id="p1_19"></a>19     Sometime around 1980, the Patriarch purchased a house in the Defendant’s name (“<b>old 10 VR</b>”). This was a single-storey pre-war wooden house. The Defendant claimed that this was gifted to him, whereas the Plaintiff claimed that the Defendant was merely holding this on trust for the Defendant. The Defendant felt that it did not make business sense to just hold on to the property, especially when old 4 JM was insufficient for the needs of the family. Hence, instead of residing at 10 VR, the Defendant mortgaged the property and used the money to demolish 10 VR and rebuilt it into a pair of semi-detached houses, (i.e. “<b>new 10 VR</b>” and “<b>10A VR</b>”). The Defendant proceeded to sell new 10 VR and used the sale proceeds to fund the demolition and rebuilding of the old 4 JM to a pair of new double-storey semi-detached houses (i.e. “<b>2 JM</b>” and “<b>new 4 JM</b>”). While this was under construction, the family temporarily moved into 10A VR. The Defendant subsequently sold off 10A VR to fund the necessary construction loan for 2 JM and the new 4 JM.</p> <p class="Judg-1"><a id="p1_20"></a>20     Once 2 JM and the new 4 JM were constructed, each home had 4 bedrooms, a total of 8 bedrooms, which could accommodate the Patriarch, Matriarch and the Children (i.e. the 1<sup>st</sup> to 10<sup>th</sup> Daughters, and the 3<sup>rd</sup> and 4<sup>th</sup> Sons) cross the 2 houses. The Patriarch was the sole owner of both 2 JM and the new 4 JM. Generally, 2 JM was occupied by the Matriarch and the Patriarch and the new 4 JM was occupied by the 1<sup>st</sup> to 3<sup>rd</sup> Daughters and the 3<sup>rd</sup> Son, as the other Children progressively moved to their own residences. Subsequently, the new 4 JM was transferred to the 1<sup>st</sup> to 3<sup>rd</sup> Daughters and the 3<sup>rd</sup> Son on 26 August 1988, and they independently paid off the remaining loan on the property.</p> <p class="Judg-Heading-3">The Patriarch’s passing </p> <p class="Judg-1"><a id="p1_21"></a>21     Sometime around April 1993, the Patriarch fell seriously ill due to severe liver disease and was subsequently admitted to hospital in May 1993. The Patriarch entrusted the Defendant to manage his assets as his condition worsened. Based on where the Children were in their stages in life, the Defendant proposed to the Patriarch the following for the distribution of his estate:</p> <p class="Judg-2"><a id="p1_21-p2_a"></a>(a)     100% of cash or equivalent to the Matriarch;</p> <p class="Judg-2"><a id="p1_21-p2_b"></a>(b)     50% of 2 JM to the Matriarch and the other 50% of 2 JM to the Plaintiff; and</p> <p class="Judg-2"><a id="p1_21-p2_c"></a>(c)     25% of the Family Business to the Defendant, and 12.5% to each of the 1<sup>st</sup> Daughter and the 3<sup>rd</sup> Son as they were still involved in the management of the Family Business and the 1<sup>st</sup> and 2<sup>nd</sup> Daughters already had certain shares of the Family Business.</p> <p class="Judg-1"><a id=""></a>The Defendant acknowledged that he unfortunately neglected to consider his 7 younger sisters, i.e. the 4<sup>th</sup> to 10<sup>th</sup> Daughters, as he was not close to them. At that time, the Defendant was closer to the Plaintiff and had been remitting a monthly allowance to him for his studies when he was in USA and he suggested that the half share of 2 JM be given to him as he was early in his career and had not amassed any substantial assets.</p> <p class="Judg-1"><a id="p1_22"></a>22     The Defendant purportedly communicated his rationale to the Patriarch, who agreed and the Defendant arranged for Mr CJH to draft the Patriarch’s Will, and attended to him in the hospital for its execution on 13 June 1993. While some issues about the Patriarch’s will had been raised in these proceedings particularly by the Plaintiff, no one had taken up any legal action relating to the propriety of the Patriarch’s Will. One notable contention by the Plaintiff was that the Patriarch had intended to gift the whole of 2 JM to the Plaintiff but was convinced by the Defendant to share this with the Matriarch. Furthermore, the Plaintiff alleged that 2 JM was meant to be bequeathed as a joint tenancy to him and the Matriarch instead of tenants-in-common of 50% share each, such that by survivorship, he would inherit the whole of 2 JM upon the Matriarch’s passing. It was noted that in this regard, the Plaintiff merely had suspicions which were not supported by any documentation.</p> <p class="Judg-1"><a id="p1_23"></a>23     About a week later, the Patriarch passed away on 21 June 1993. The Patriarch’s estate was duly distributed to the various beneficiaries. Subsequently, sometime in 1995, the Defendant took out a loan to buy out the 1<sup>st</sup> 2<sup>nd</sup> and 3<sup>rd</sup> Daughter’s and the 3<sup>rd</sup> Son’s shares in the Family Business. The Defendant felt that the Family Business was a sunset business, but still provided his siblings with what he felt were substantial funds to buy them out.</p> <p class="Judg-Heading-3">Arrangements for the Matriarch after the Patriarch’s passing &amp; the execution of the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_24"></a>24     After the Patriarch passed away, the duty of caring for the Matriarch’s finances fell largely to the Defendant, but with some help from the other Children. Some gave sporadic sums of money and the 1<sup>st</sup> Daughter paid for the utility bills for the Matriarch. The expectation was that given how the Defendant was financially well off that he should be making the bulk of the contributions for the Matriarch. It was further alleged that on the Patriarch’s deathbed he had gotten the Defendant to promise him to make monthly allowances to the Matriarch. The Plaintiff alleged that the Defendant’s payments were irregular and insufficient, and that the Plaintiff only started being more regular in payments after the Matriarch had executed her 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_25"></a>25     Unbeknownst to the Defendant, it came out in the various witness testimonies by the other Children that the Matriarch had also extracted certain regular payments of allowance from them. Certain family members opined that the Matriarch had a tendency of playing her Children against each other to extract money for her benefit for her personal survival.</p> <p class="Judg-1"><a id="p1_26"></a>26     Even though the Plaintiff started residing with the Matriarch, he did not give the Matriarch a regular allowance but would buy food and other items for her. The Defendant and the 2<sup>nd</sup> Daughter claimed that the Plaintiff had instead obtained an allowance from the Matriarch during the initial years and subsequently still received periodic sums of money from her to help support his family. It was alleged that the Plaintiff had removed a sum of S$50,000 from the joint account that he shared with the Matriarch and did not account for it.</p> <p class="Judg-1"><a id="p1_27"></a>27     The Defendant asserted that sometime around 2005, the Matriarch shared with him that the Plaintiff was facing some cashflow problems and had expressed an intention to mortgage the 2 JM property and convert it into a childcare centre for him to manage and generate income. The Defendant claimed that the Matriarch expressed concerns over the Plaintiff’s plans as she did not want to lose 2 JM in the event that this business venture failed. She was purportedly also fearful that such plans would devalue 2 JM. She was further allegedly worried that while she was away on her frequent travels to China for extended period of 3 to 4 weeks, that the Plaintiff may deal with 2 JM without her to her prejudice. To address these issues, the Defendant purportedly suggested to the Matriarch to execute the 1<sup>st</sup> Will. In this regard, it is noteworthy that the execution of a will would not directly address the claimed fears that the Matriarch had raised to the Defendant. In any event, the Defendant asserted that the Matriarch sought the execution of the 1<sup>st</sup> Will and he contacted Mr CJH to draft the 1<sup>st</sup> Will for her. He purportedly conveyed the Matriarch’s instructions to appoint him as her sole executor, to bequeath S$5,000 to each of the 4<sup>th</sup> to 10<sup>th</sup> Daughters and that the remainder would go to him. Mr CJH then attended to the Matriarch for the execution of the 1<sup>st</sup> Will at the Defendant’s home on 22 March 2005.</p> <p class="Judg-1"><a id="p1_28"></a>28     The Plaintiff alleged that 1<sup>st</sup> Will was procured by undue influence of the Defendant. This included the allegation that the Defendant had reached an arrangement with the Matriarch to provide her with regular maintenance sums in exchange for her willing the residuary of her estate to him. This is elaborated on below.</p> <p class="Judg-1"><a id="p1_29"></a>29     The other Children subsequently came to know of the 1<sup>st</sup> Will. There were some discussions over executing a new will to replace the 1<sup>st</sup> Will, particularly with the 8<sup>th</sup> Daughter having conversations with the Matriarch over this. However, the Matriarch did not change the 1<sup>st</sup> Will.</p> <p class="Judg-Heading-3">The Matriarch’s dementia and the execution of the 2<sup>nd</sup> Will</p> <p class="Judg-1"><a id="p1_30"></a>30     In 2016, the Matriarch suffered a deterioration in her health condition. She often complained of shortness of breath and feeling weak. She also had chronic diabetes and incontinence issues. The Matriarch showed one-sided weakness, would fall often and required the assistance of a wheelchair. There were also concerns over her mental health.</p> <p class="Judg-1"><a id="p1_31"></a>31     Unbeknownst to either the Plaintiff or the Defendant, it was suddenly revealed in the testimony of the 3<sup>rd</sup> Son that the Matriarch had some time back suffered a minor stroke, was treated by Bedok Polyclinic and hospitalized for a period of time. Neither the Plaintiff nor the Defendant were able to produce such medical records, however, Dr FN had noted that the Matriarch appeared to exhibit signs consistent to having suffered a stroke in the past.</p> <p class="Judg-1"><a id="p1_32"></a>32     She would usually go to the nearby polyclinic for follow-up. However, the Plaintiff decided that he wanted the Matriarch to be seen by Hua Mei Clinic, which provided subsidized medical care for the elderly. The Matriarch began seeing a geriatrician from June 2016 for about 5 consultations. In the last consultation on 28 March 2017, Dr TST of Hua Mei Clinic did a Mini-Mental State Examination (“<b>MMSE</b>”) of the Matriarch and she scored 14/28. Dr TST recommended that the Matriarch be formally assessed by DR FN to determine whether the Matriarch had the requisite mental capacity.</p> <p class="Judg-1"><a id="p1_33"></a>33     Notwithstanding this recommendation, the Plaintiff followed through with arrangements for the Matriarch to execute a Lasting Power of Attorney (“<b>LPA</b>”) and the 2<sup>nd</sup> Will with FortisWills. The Plaintiff brought the Matriarch to FortisWills to execute these documents on 7 April 2017, just 9 days after this recommendation, without submitting the Matriarch for a formal assessment of her mental capacity. The Plaintiff also neglected to inform Estate Planner 1 and/or Estate Planner 2 that there were concerns about the Matriarch’s mental health and that she had previously executed a will many years ago (i.e. the 1<sup>st</sup> Will). While the Plaintiff claimed that he had left the Matriarch to speak privately with Estate Planner 1, this was inconsistent with Estate Planner 1’s recollection that the Plaintiff was present throughout her meeting with the Matriarch. She claimed this was to ensure that the Matriarch felt more comfortable. The Estate Planner went through with the Matriarch on her intentions to bequeath her half share of 2 JM to the Plaintiff and in the alternative to the Plaintiff’s 1<sup>st</sup> Son, whom the Plaintiff had to explain who he was to Estate Planner 1. It was also purportedly confirmed that the Matriarch desired for the Plaintiff to be appointed as her sole executor and trustee. Estate Planner 1 asked the Matriarch some questions as to her family background, and even though the Matriarch answered some of those questions incorrectly, Estate Planner 1 was unaware of its inaccuracy as the Plaintiff did not highlight that the responses provided wrong information. Estate Planner 1 found that the Matriarch appeared to understand the contents of the draft will and filled out the standard checklist. To Estate Planner 1, this was just a run-of the-mill case and Estate Planner 1 did not take any additional precautions. Estate Planner 1 then called her colleague Estate Planner 2 to jointly be the witnesses for the Matriarch’s execution of the 2<sup>nd</sup> Will.</p> <p class="Judg-1"><a id="p1_34"></a>34     It is notable, that on this same day, it is an undisputed fact that the Matriarch also executed the LPA before a lawyer of FortisLaw. However, the Plaintiff failed to call this lawyer as a witness. This was despite the fact that this lawyer would have had to make an assessment on the Matriarch’s mental capacity to execute the LPA. The Plaintiff also neglected to provide any details of this meeting, even though it is presumed that the Plaintiff was at least present for a portion of this encounter.</p> <p class="Judg-1"><a id="p1_35"></a>35     The Plaintiff had claimed that the Matriarch had for several years prior to 2017 told him that she wanted to make a new will, purportedly because she was concerned the Defendant would want to force a sale of 2 JM, even though the Defendant was not authorized to deal with the property. The Plaintiff alleged that the Matriarch wanted to leave 2 JM to him to avoid acrimony with his other siblings and for him to look after the other siblings, even though none of them resided at 2 JM. The Plaintiff also asserted that the Matriarch wanted to gift him her share of 2 JM as she loved him and did not think it was appropriate to gift her daughters. Additionally, by gifting it to the Plaintiff this would ensure that the property would not be sold, and it would be retained by the family. The Plaintiff said that he had put off making the necessary arrangements as the Matriarch appeared to be very capable and he failed to notice her deterioration of her mental health.</p> <p class="Judg-Heading-3">The Matriarch’s execution of the 3<sup>rd</sup> Will, Transfer Instrument &amp; Statutory Declaration</p> <p class="Judg-1"><a id="p1_36"></a>36     Around 15 June 2017, the Defendant had taken the Matriarch for a medical appointment. It was at this time that the Matriarch informed him that she had been brought by the Plaintiff to a tall building recently to sign a document before 2 ladies. She was purportedly unsure as to what the document was about. She initially thought that this was related to certain renovations that the Plaintiff wanted to do on 2 JM, i.e. a “<em>renovation permit</em>”. The Defendant found this unusual and conveyed his sentiments to the Matriarch. She became concerned that the document that she had signed related to dealing with her half share of 2 JM. The Matriarch purportedly asked the Defendant to help her arrange for a lawyer to assist her in preparing a fresh will with similar contents as the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_37"></a>37     The Defendant reapproached Mr CJH, who had helped prepare the Patriarch’s will and the Matriarch’s 1<sup>st</sup> Will, to assist the Matriarch for the 3<sup>rd</sup> Will. Purportedly on behalf of the Matriarch, the Defendant informed Mr CJH to prepare a fresh will which was similar to the 1<sup>st</sup> Will save that the gifts to each of the 4<sup>th</sup> to 10<sup>th</sup> Daughters was increased from S$5,000 to S$10,000. Mr CJH made the necessary preparations.</p> <p class="Judg-1"><a id="p1_38"></a>38     On 19 June 2017, the Defendant brought the Matriarch to Mr CJH’s office to execute the 3<sup>rd</sup> Will. As the Matriarch had mobility issues, Mr CJH and his colleague came down from their office to meet the Matriarch in the Defendant’s car. The Defendant gave them privacy and left for a walk while Mr CJH and his colleague attended to the Matriarch. During the discussion with Mr CJH, the Matriarch was able to independently explain why she was willing to give the bulk of her estate to the Defendant as he had helped maintain and care for her. Mr CJH felt this was pertinent to include in the 3<sup>rd</sup> Will, and amended the draft based on this. Thereafter, the Matriarch executed the 3<sup>rd</sup> Will in the presence of Mr CJH and his colleague in the Defendant’s car. Mr CJH recalled that at least after the 3<sup>rd</sup> Will was executed, he suggested to the Defendant that it might be prudent to have the Matriarch assessed for mental capacity as he was under the impression that the Matriarch was younger in her early 80s, when she was actually in her late 80s.</p> <p class="Judg-1"><a id="p1_39"></a>39     Upon this recommendation, the Defendant on 21 June 2017 sought the consultation of Dr JBL. The Defendant explained to Dr JBL that what he understood from the Matriarch was that she had executed a “<em>renovation permit</em>” and she had felt uneasy about it. The Defendant further explained that the Matriarch was illiterate and did not understand English. The Defendant, however failed to mention that the Matriarch had recently executed the 3<sup>rd</sup> Will. On this basis, Dr JBL proposed for the mental capacity assessment of the Matriarch in relation to the giving of her half share of 2 JM to the Defendant. Dr JBL also suggested that the Defendant consult with a lawyer familiar with such matters, and recommended Mr DK of Ho &amp; Wee LLP (“<b>HW</b>”).</p> <p class="Judg-1"><a id="p1_40"></a>40     Having discussed the matter Mr DK suggested if the Matriarch was worried with the Plaintiff dealing with her half share of 2 JM and she intended to gift this to the Plaintiff, that the Matriarch could execute a Transfer Instrument of her half share of 2 JM to the Defendant.</p> <p class="Judg-1"><a id="p1_41"></a>41     Hence, the Defendant arranged for the Matriarch to be at his home and for Dr JBL to attend to her. When Dr JBL arrived, the Defendant left the home so that Dr JBL could perform his assessment privately. Dr JBL was satisfied that the Matriarch had the requisite mental capacity to execute the Transfer Instrument. Thus, Mr DK was contacted to come down to attend to the Matriarch at the Defendant’s home. Hence, the Transfer Instrument was executed on 25 June 2017.</p> <p class="Judg-1"><a id="p1_42"></a>42     The next day on 26 June 2017, the Matriarch purportedly contacted the Defendant stating that she was feeing unwell and asked him to visit her. It is alleged that the Matriarch claimed that the Plaintiff made a slew of negative comments about how her house was being stolen from her. The Defendant assured the Matriarch that no such thing would happen and that he had only made the arrangements because she had requested for it.</p> <p class="Judg-1"><a id="p1_43"></a>43     Thereafter on 3 July 2017, Dr JBL issued his medical report certifying that the Matriarch had the requisite mental capacity to execute the Transfer Instrument.</p> <p class="Judg-1"><a id="p1_44"></a>44     On the basis of the Transfer Instrument, the Defendant sought to transfer the Matriarch’s half share of 2 JM to himself. However, his instructed counsel, HW, were unable to do so as the Plaintiff refused to provide the original certificate of title. For the purposes of obtaining a replacement certificate of title, Singapore Land Authority (“<b>SLA</b>”) required that the Matriarch execute a statutory declaration and to file up a form, “<em>Application for Replacement of Certificate of Title</em>”. Hence, the Defendant made arrangements for this.</p> <p class="Judg-1"><a id="p1_45"></a>45     At around this time, there was concern over the Matriarch’s behaviour, whereby she appeared to be confused and hysterical about losing 2 JM. The Plaintiff decided to follow through with the previous recommendation of Hua Mei Clinic and arranged for the Matriarch to be reviewed by Dr FN. Dr FN saw the Matriarch at his clinic on 2 occasions on 10 and 17 July 2017. Dr FN assessed the Matriarch to be suffering dementia of moderate severity. Given that it would have taken a period of time to progressively advance to such severity, Dr FN determined that the Matriarch’s cognitive decline had been ongoing for at least a year. Dr FN further opined that any decision that the Matriarch had made in the preceding year should be “<em>considered invalid in view of a high likelihood of being susceptible to manipulation and influence</em>”. Dr FN provided this medical report on 18 August 2017. It is notable that Dr FN’s expert opinion was not in support of the Plaintiff’s position on the validity of the 2<sup>nd</sup> Will and was also not in support of the Defendant’s position on the validity of the 3<sup>rd</sup> Will.</p> <p class="Judg-1"><a id="p1_46"></a>46     Around 20 August 2017, the 8<sup>th</sup> Daughter, who had been provided with Dr FN’s report from the Plaintiff also forwarded this to the Defendant. The 8<sup>th</sup> Daughter also informed the Defendant that the document that the Matriarch had executed in April 2017 was not in relation to any intended renovation, but for the 2<sup>nd</sup> Will and an LPA. This was the 1<sup>st</sup> time that the 2<sup>nd</sup> Will appeared to be confirmed to have been executed. In this regard, the Defendant also had evidence of a video clip around that time where the Matriarch continued to express that she believed to have only executed a document on the renovation of 2 JM.</p> <p class="Judg-1"><a id="p1_47"></a>47     Given this, the Defendant attempted to engage the services of Dr JBL again to assess the Matriarch, however, he was unavailable. In the circumstances, the Defendant approached Dr NBY to assess the Matriarch in relation to the execution of the Statutory Declaration. Dr NBY was provided with Dr JBL’s and Dr FN’s medical reports and also reviewed P on 13 September 2017 and found the Matriarch to have the requisite mental capacity to execute the Statutory Declaration. Hence, the Defendant proceeded to have Ms LKK, a lawyer and commissioner for oaths of KK Lee Law Corporation (“KKL”), to attend to the Matriarch for the execution of the Statutory Declaration. Ms LKK went through the Statutory Declaration with the Matriarch alone and no concerns were raised. The Matriarch, thus, executed the Statutory Declaration on that day. It is noted that the Matriarch’s agreeableness to proceed with the Statutory Declaration appeared to be at odds with the other witness accounts that the Matriarch was hysterical over potentially losing her share of 2 JM at around this same time.</p> <p class="Judg-1"><a id="p1_48"></a>48     On the basis of the Statutory Declaration, HW further corresponded with SLA on the issuance of the replacement certificate of title, however, SLA sought that an order of court be provided for this issuance.</p> <p class="Judg-1"><a id="p1_49"></a>49     The Defendant was reluctant to do so as he did not want the family dispute to be litigated in public. Separately, witness accounts continued to attest that the Matriarch was hysterical at the potential loss of 2 JM. The Defendant decided to abort the transfer and instead sought to only rely on the 3<sup>rd</sup> Will upon the Matriarch’s passing.</p> <p class="Judg-Heading-3">The Matriarch’s passing and the application for a grant of probate.</p> <p class="Judg-1"><a id="p1_50"></a>50     The Matriarch passed away on 2 December 2019. The Defendant claimed to have maintained a close relationship with her up to her passing with regular telephone calls which were supported by telephone records provided. The Defendant attested that he continued to pay maintenance to the Matriarch and paid for her domestic helper’s fees. However, certain other family members claimed that the Defendant failed to make regular maintenance payments once the Matriarch’s dementia condition had worsened.</p> <p class="Judg-1"><a id="p1_51"></a>51     On 11 February 2020, another law firm engaged by the Defendant then, Wee, Tay &amp; Lim LLP (“<b>WTL</b>”) to apply for a grant of probate for the Matriarch’s estate, wrote to the other Children on this stated intention.</p> <p class="Judg-1"><a id="p1_52"></a>52     On 13 February 2020, the Defendant followed up with an email to the other Children. The 8<sup>th</sup> Daughter was the only one who replied on the same day noting that the rest of the family had a lost of grievances to bring up with him that was documented in a lengthy WhatsApp exchange and that she would need to see the legal documents on the 3<sup>rd</sup> Will, failing which there may be a contest of the validity of the 3<sup>rd</sup> Will. The Defendant rebutted in an email on 14 February 2020, that he was willing to share his 50% of the Matriarch’s share of the 2 JM without asking for anything in return, however, he could not give them something that he was not yet a legal owner of and that there may be stamp duties involved in any transfer and also other requirements. Additionally, the Defendant conveyed that it was not necessary to get the family’s consent before making an application for a grant of probate. On 15 February 2020, the 8<sup>th</sup> Sister and the Defendant arranged to have a discussion.</p> <p class="Judg-1"><a id="p1_53"></a>53     The Plaintiff separately replied on 18 February 2020 stating that the Matriarch had willed her half share of 2 JM to him. The next day on 19 February 2020, WTL replied seeking for the provision of a copy of the 2<sup>nd</sup> Will and followed up with another reminder on 20 February 2020. The Plaintiff provided a copy of the 2<sup>nd</sup> Will on 24 February 2020. On this same day, the Plaintiff also filed a caveat against the estate of the Matriarch, FC/CAVP 16/XXXX through his then solicitors Gloria James-Civetta &amp; Co (“<b>GJC</b>”).</p> <p class="Judg-1"><a id="p1_54"></a>54     On 21 February 2020, the 8<sup>th</sup> Daughter, speaking purportedly on behalf of the 7 daughters (i.e. 4<sup>th</sup> to 10<sup>th</sup> Daughters), then requested for the Defendant to instruct his lawyers to draft a deed of family arrangement to share half of the Matriarch’s 50% share of 2 JM (i.e. 25%) if 2 JM were to be sold on the open market, and also discuss how the parties would hold their shares in the event hat 2 JM were not sold. The 8<sup>th</sup> Daughter also clarified that the Matriarch’s bequeaths of S$10,000 to each of the 7 daughters (i.e. 4<sup>th</sup> to 10<sup>th</sup> Daughters) should not be mutually exclusive from the Defendant’s intention to share half of the Matriarch’s share of 2 JM. The Defendant replied that it would be better if they commissioned a lawyer to draft this family arrangement and then his lawyer review to see if the request was reasonable. The Defendant reminded them that this further division of his share of 2 JM was above and beyond what he was required to do and that if the request from them was too demanding that it would cause discord between them. The 8<sup>th</sup> Daughter replied on 21 and 22 February 2020 for the Defendant to consider all the unmarried Children and that while he gave the Matriarch an allowance, that was just being a filial son. Further correspondence was exchanged between these siblings particularly about the historical matters relating to the family being raised, but eventually on 6 March 2021, the Defendant, amongst other things, insisted the 3<sup>rd</sup> Will was the Matriarch’s true will and that he was no longer willing to gift his half share of 2 JM to the 4<sup>th</sup> to 10<sup>th</sup> Daughters beyond what the 3<sup>rd</sup> Will provided and stated:</p> <p class="Judg-Quote-1">I originally planned to gift half of the [2 JM] share upon completion of the administration of the Estate unconditionally to 7 beneficiaries because they were ignored when Dad passed away, but there are many things happened that disappoint me. The biggest irony is that the gift-giver gives unconditionally, but the recipient made many rules and conditions, even threats. Because of the threat, I had to lay aside the &quot;Deed of family arrangements.</p> <p class="Judg-1"><a id=""></a>Further correspondence was exchanged but this did not progress any further negotiations on a Deed of Family Arrangement.</p> <p class="Judg-1"><a id="p1_55"></a>55     Separately, in order to fulfil the requirements of providing an original copy of the will for the Court to inspect upon the making of an application for grant of probate, the Defendant on 19 March 2020 requested for the Plaintiff to return the original copy of the 3<sup>rd</sup> Will, which the Defendant had left in the possession of the Plaintiff’s wife when he was questioned on the same back in 2017. On 24 March 2020, the original copy of the 3<sup>rd</sup> Will was sent to the Defendant by way of registered mail. However, this document appeared to be wet and stained by watermarks making the thumbprint of the Deceased and the lawyer’s stamp eligible. On this basis, the Defendant filed a police report on the alleged attempt by the Plaintiff to destroy the original copy of the 3<sup>rd</sup> Will. The Defendant subsequently obtained a certified true copy of the will from Mr CJH and proceeded on 1 April 2020 to apply for a grant of probate based on the 3<sup>rd</sup> Will in FC/P 1753/XXXX (“<b>P 1753</b>”). The Defendant also subsequently filed a warning to the caveator on 15 July 2002 and served the same on him. An appearance was later filed by the Defendant on 22 July 2020.</p> <p class="Judg-1"><a id="p1_56"></a>56     Then on 19 August 2020, the Defendant filed a summons application, FC/SUM 2342/XXXX (“<b>SUM 2342</b>”) for the caveat to cease to have effect. On 26 September 2020, the Plaintiff then filed FC/SUM 2873/XXXX (“<b>SUM 2873</b>”) for leave to file a further affidavit and requested for the Court to invalidate the 3<sup>rd</sup> Will and to reinstate the 2<sup>nd</sup> Will as the Matriarch’s true will. In these summonses, the Plaintiff alleged, amongst other things, that the Matriarch had no mental capacity to execute the 3<sup>rd</sup> Will and, in any event, the 3<sup>rd</sup> Will was procured by undue influence of the Defendant and that the Matriarch had executed the 2<sup>nd</sup> Will to bequeath her half share of 2 JM to the Plaintiff instead.</p> <p class="Judg-1"><a id="p1_57"></a>57     Having heard the matter, on 19 November 2020, the Court made no order for SUM 2342, as it was determined that the caveat had expired and did not have effect. Costs of S$400 was ordered against the Plaintiff. On SUM 2873, the Court dismissed the application in whole and ordered the Plaintiff to pay the Defendant a further S$800. These decisions have not been appealed by either party. Hence, on 10 December 2020, the Court issued a Grant of Probate on the basis of the 3<sup>rd</sup> Will in FC/PRG 5965/XXXX.</p> <p class="Judg-Heading-3">Events after the grant of probate</p> <p class="Judg-1"><a id="p1_58"></a>58     On 4 January 2021, the Defendant sought, through new solicitors, Lai Mun Onn &amp; Co (“<b>LMO</b>”) to furnish the Plaintiff with the Grant of Probate and a draft transfer instrument for the Matriarch’s half share of 2 JM and to request for the original certificate of title of 2 JM. The Plaintiff failed to respond and a further reminder was sent by LMO on 21 January 2021. There was still no response, the Defendant then sent a WhatsApp message to the Defendant on 3 March 2021 on the matter, but there was no response.</p> <p class="Judg-1"><a id="p1_59"></a>59     On 5 March 2021, LMO sent another letter to the Plaintiff informing him that given his lack of response, the Defendant was proceeding to make an application for a replacement certificate of title of 2 JM from SLA. Then on 22 March 2021, LSA wrote to LMO and copied the Plaintiff and directed LMO to give notice of the application for a replacement certificate of title of 2 JM by publishing the details in the Straits Times, and that only if no valid objections were raised, then SLA would issue a replacement certificate of title for 2 JM.</p> <p class="Judg-1"><a id="p1_60"></a>60     The Defendant proceeded to place the notice and then on 29 March 2021, the Plaintiff raised an objection. SLA replied on 5 April 2021 informing the Plaintiff that the application for a replacement certificate of 2 JM was in order and that the Registrar of Titles intends to register the application and issue the replacement certificate of title unless there was an order of court provided that the Registrar shall not do so within 30 days of the letter. In this regard, the Defendant through LMO sent a letter on 12 April 2021 requesting that the Plaintiff provide a proposal of how 2 JM should be dealt with as co-owners and demanded that the Plaintiff provide the Defendant with rental of S$2,450 per month.</p> <p class="Judg-1"><a id="p1_61"></a>61     On 3 May 2021, the Plaintiff instructed Kalco Law LLC (“<b>KL</b>”) to seek an extension of time from SLA until 3 June 2021. On 2 June 2021, SLA notified the Plaintiff and the Defendant that a replacement certificate of title for 2 JM was issued but that SLA would retain this copy and only release it when the old certificate of title was provided to SLA. SLA also registered the transfer of the Matriarch’s half share to the Defendant.</p> <p class="Judg-1"><a id="p1_62"></a>62     On 5 June 2021, the Defendant sent the Plaintiff an email stating that they should try to resolve how to divide their half shares of 2 JM by drawing lots on who gets to occupy the upstairs or downstairs area and that if the Plaintiff chooses not to participate, then the Defendant would decide for himself. The Defendant stated he would meet the Plaintiff on the next day at 4 pm.</p> <p class="Judg-1"><a id="p1_63"></a>63     The Defendant did go down to see the Plaintiff on 6 June 2021 to negotiate on his proposal for division of the 2 JM property. The upper level has 3 bedrooms and the lower level only had 1 bedroom which was previously occupied by the Matriarch. The Plaintiff decided not to engage with the Defendant and refused to respond. In the circumstances, the Defendant declared that he would take over the upstairs in that case. The Plaintiff claimed that the Defendant attempted to get the Plaintiff to sign a contract on this and would taunt him on this.</p> <p class="Judg-1"><a id="p1_64"></a>64     On 9 June 2021, LMO wrote to the Plaintiff requesting that the original certificate of title of 2 JM be delivered to SLA with no response received. On 5 July 2021, the Defendant proposed to the Plaintiff through LMO that either the Plaintiff buy over the Defendant’s half share of 2 JM, parties sell 2 JM to a 3<sup>rd</sup> party or if the Plaintiff was unwilling to engage in any discussions, the Defendant would need to apply for an order for 2 JM to be sold and the proceeds be divided equally between the parties. The Plaintiff failed to respond.</p> <p class="Judg-1"><a id="p1_65"></a>65     Given the delay in the matter, the Defendant, on 24 August 2021 filed HC/OS 801/XXXX (“<b>OS 801</b>”) for an order for 2 JM to be sold forthwith with vacant possession. At the 1<sup>st</sup> Pre-Trial Conference (“<b>PTC</b>”) for OS 801, the Plaintiff was directed to file and serve his reply affidavit by 15 September 2021, which he did. At the 2<sup>nd</sup> PTC, OS 801 was fixed for hearing on 2 November 2021. Both the Plaintiff and the Defendant confirmed at the 3<sup>rd</sup> PTC for OS 801 on 26 October 2021 that they were ready for the hearing to proceed.</p> <p class="Judg-1"><a id="p1_66"></a>66     However, at the hearing of OS 801 before Justice Pang Khang Chau (“<b>Justice Pang</b>”), the Plaintiff informed the Court that he had engaged KL to commence an action to revoke the grant of probate for the Matriarch’s estate. Justice Pang directed that any such application be filed by 2 December 2021 and adjourned the hearing of OS 801 to 6 December 2021. However, by 6 December 2021, the Plaintiff had still not filed the application. Justice Pang adjourned the matter to 12 January 2022 and ordered the Plaintiff to pay the Defendant costs of S$2,000. The Plaintiff filed FC/S 1/2022 (“<b>Suit 1</b>”) on 23 December 2021, and OS 801 was stayed pending the outcome of these proceedings.</p> <p class="Judg-Heading-3">Brief Chronology of Suit 1 leading up to the trial</p> <p class="Judg-1"><a id="p1_67"></a>67     At the 1<sup>st</sup> Probate Case Conference (“<b>PCC</b>”) on 15 February 2022 before Assistant Registrar Miranda Yeo (“<b>AR Yeo</b>”), among other things, parties were directed to identify all the potential beneficiaries pursuant to the 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> Wills and in accordance with the ISA.</p> <p class="Judg-1"><a id="p1_68"></a>68     The Defendant had been initially represented by Sim Chong LLC for this matter but changed counsel to IRB Law LLP (“<b>IRB</b>”) on 28 February 2022.</p> <p class="Judg-1"><a id="p1_69"></a>69     At the 2<sup>nd</sup> PCC on 19 April 2022 before AR Yeo, parties were directed to service notices of action to all potential beneficiaries (i.e. the Children save for the 2<sup>nd</sup> Son who had been adopted out of the family). On 5 May 2022, the Plaintiff issued his notices, and on 7 May 2022, the Defendant issued his notices. The Defendant filed his affidavit of service on 13 May 2022 and the Plaintiff file his on 19 May 2022, verifying that all potential beneficiaries had been served. It is noted that when several of these beneficiaries were questioned as witnesses on this notice, they did not appear to have a clear recollection of having received it even though there was documentation showing otherwise. In any event, none of the other beneficiaries raised personal objections or sought to be joined in Suit 1.</p> <p class="Judg-1"><a id="p1_70"></a>70     At the 3<sup>rd</sup> PCC on 23 June 2022 before AR Yeo, parties were directed to exchange requests for documents and proposals for settlement of the matter and to confirm whether parties were seeking to attend mediation.</p> <p class="Judg-1"><a id="p1_71"></a>71     At the 4<sup>th</sup> PCC on 11 August 2022 before AR Yeo, parties updated the Court that timelines had been complied for the exchange of documents and proposals and directions were sought for trial. AR Yeo directed for the filing of List of Documents and affidavits verifying the lists by 19 September 2022, to confirm the list of witnesses and extract an order on the list of witnesses by 10 October 2022, then to exchange Affidavits of Evidence in Chief (“<b>AEICs</b>”) by 21 November 2022, then to file objections by 5 December 2022 before filing for the set down of trial on 19 December 2022. The Parties complied with the filing of List of Documents with the accompany affidavit, albeit a few days later, but not the other directions</p> <p class="Judg-1"><a id="p1_72"></a>72     The Defendant then filed a notice of change of solicitors from IRB to Templars Law LLC (“<b>Templars</b>”) on 2 December 2022.</p> <p class="Judg-1"><a id="p1_73"></a>73     At the 5<sup>th</sup> PCC before AR Yeo on 17 January 2023, it was updated that parties had agreed to an extension of time for the filing of the AEICs and that they were still settling certain witnesses. AR Yeo directed for the order with the names of witnesses was to be extracted and for the AEICs to be filed by 3 February 2023. At that point in time, it was indicated that the Plaintiff had 4 witnesses and the Defendant had 7 witnesses, which included medical experts and a translator. AR Yeo further directed for objections to be taken by 17 February 2023 and for set down to be filed by 3 March 2023.</p> <p class="Judg-1"><a id="p1_74"></a>74     At the 6<sup>th</sup> PCC on 7 February 2023 before AR Yeo, nothing had been filed in the interim month. The Plaintiff requested for a further extension of time, as they had initially lined up a medical expert who subsequently pulled out and they had to confirm Dr FN to be a witness. The Defendant noted that they had been trying to exchange AEICs for 4 months and that if the Court was minded to allow for an extension of time, that this should be the last one. AR Yeo directed for AEICs to be exchanged by 21 March 2023 and for the order of court with the names of the witnesses to be extracted by 24 February 2023. Objections were to be taken by 4 April 2023 and set down to be done by 18 April 2023.</p> <p class="Judg-1"><a id="p1_75"></a>75     On 24 February 2023, Order of Court FC/ORC 887/XXXX was extracted confirming the list of witnesses. Between 21 and 27 March 2023, the Plaintiff filed 6 AEICs and the Defendant filed also filed 7 AEICs which included 1 affidavit of translation.</p> <p class="Judg-1"><a id="p1_76"></a>76     At the 7<sup>th</sup> PCC before Assistant Registrar Colin Tan (“<b>AR Tan</b>”) on 28 March 2023, parties updated that all AEICs had been exchanged and sought an extension of time to take objections, which was allowed by 10 April 2023 and AR Tan further directed for set down to be done by 18 April 2023.</p> <p class="Judg-1"><a id="p1_77"></a>77     On 4 April 2023, the Defendant filed a Notice to Produce documents referred to in affidavits and on 6 April 2023, the Defendant also filed a Supplementary List of Documents. On 13 April 2023, both the Plaintiff and the Defendant filed their respective Notices of Objections to the Contents in the AEICs. The Plaintiff then set down the matter for trial with the set down bundle on 18 April 2023. The Plaintiff also filed a Notice of where the documents may be inspected and a Notice to Produce documents referred to in the affidavits on 24 April 2023.</p> <p class="Judg-1"><a id="p1_78"></a>78     At the 8<sup>th</sup> PCC on 24 April 2023 before AR Yeo, given the number of witnesses on each side, dates for trial were considered and AR Yeo directed that the registry will fix the trial dates and will inform parties of this and the date for the Judge Pre-Trial Conference (“<b>JPTC</b>”).</p> <p class="Judg-1"><a id="p1_79"></a>79     On 29 May 2023, the Plaintiff filed a notice of intention to act in person. Correspondence was filed by the Plaintiff on seeking to introduce a further witness, the 3<sup>rd</sup> Son, who had previously not been listed as a witness.</p> <p class="Judg-1"><a id="p1_80"></a>80     On 5 June 2023, parties were informed that trial for Suit 1 was fixed on 14 to 18 and 22 to 24 August 2023, gave further directions for the trial. Additionally, parties were informed of the JPTC being fixed before me on 26 June 2023. The Court also indicated that the issues raised by parties in correspondence would be dealt with at the JPTC and an extension of time was granted for parties to file their Notice to Admit Hearsay Evidence by 19 June 2023, and any issue with this could be raised at the JPTC.</p> <p class="Judg-1"><a id="p1_81"></a>81     On 7 June 2023, the Plaintiff filed the AEIC of the 3<sup>rd</sup> Son and the Defendant filed his Notices to Admit Documentary and Non-Documentary Hearsay evidence. On 12 June 2023, the Defendant further raised objections to the Plaintiff unilaterally filing the 3<sup>rd</sup> Son’s AEIC and introducing him as a witness after setting down the matter for trial. The Court replied that this matter would be addressed in the JPTC. On 14 June 2023 the Plaintiff requested for Mandarin and Hokkien Interpreters for some of his witnesses, which was allowed.</p> <p class="Judg-1"><a id="p1_82"></a>82     At the JPTC on 26 June 2023 before me, several key matters were attended to:</p> <p class="Judg-2"><a id="p1_82-p2_a"></a>(a)     the Plaintiff attended in person and informally requested for a McKenzie Friend, being either his wife or a friend who was a retried lawyer. I directed that unless the Defendant agreed to it, the Plaintiff must apply for this by way of summons for the Court’s determination and if he intended his wife to be a McKenzie Friend that it must be considered whether the Plaintiff’s wife could potentially be called as a witness;</p> <p class="Judg-2"><a id="p1_82-p2_b"></a>(b)     I further directed for the Plaintiff to file a summons application for leave to introduce this additional witness by 3 July 2023. I directed parties to consider the cases of <b><em>Auto Clean ‘N’ Shine Services (a firm) v Eastern Publishing Associates Pte Ltd </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/Judgment/3640-M.xml')">[1997] SGCA 27</a>; 2 SLR(R) 427</b> and <b><em>Basil Anthony Herman v Premier Security Co-operative Ltd and others </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2010] SGCA 0015.xml')">[2010] SGCA 15</a>; <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2010] 3 SLR 0110.xml')">[2010] 3 SLR 110</a></b> on this matter. The Defendant was directed to file a reply affidavit by 17 July 2023 and the Plaintiff was to file his final response by 24 July 2023;</p> <p class="Judg-2"><a id="p1_82-p2_c"></a>(c)     I further clarified that in relation to the AEICs, that the Objections to AEICs that parties had filed were not them seeking that the evidence be expunged or for less or no weight to be placed on such statements, but just that parties were raising issues over the accuracy and reliability of the statement;</p> <p class="Judg-2"><a id="p1_82-p2_d"></a>(d)     With regard to hearsay evidence, parties were highlighted to section 32 of the Evidence Act 1893 and I sought that parties clarify whether they were seeking the court to allow certain hearsay evidence based on whether it fit into the allowed categories or whether they were raising issues of how much weight to be placed on such evidence. Parties were unclear on their positions and I directed for them to exchange correspondence on this by 17 July 2023:</p> <p class="Judg-2"><a id="p1_82-p2_e"></a>(e)     I further directed that submissions on hearsay evidence and the adding of a new witness be filed by 4 August 2023, and that these issues and any other similar issues would be heard as preliminary matters on the 1<sup>st</sup> day of trial on 14 August 2023; and</p> <p class="Judg-2"><a id="p1_82-p2_f"></a>(f)     I also discussed the tentative division of the days of trial for the various witness and the sequencing and scheduling of such witnesses. I also confirmed with parties that they were not intending to call on the Defendant’s translator who filed 2 affidavits on the translation of documents enclosed in the AEICs.</p> <p class="Judg-1"><a id="p1_83"></a>83     On 3 July 2023, instead of filing the summons application for leave to admit a new witness, the Plaintiff filed an Other Hearing Related Request (“<b>OHRR</b>”) enclosing a Summons for Directions to admit his new witness. The Court promptly replied on 4 July 2023, that the Plaintiff was to reply by 10 July 2023 on whether the request for Summons for Directions filed in the OHRR was in compliance with FJR 480 and/or whether this was meant to be a Summons Application with a Supporting Affidavit on the issue of the admission of a further witness (as I had directed on 26 June 2023 to be filed by 3 July 2023) and to take any necessary corrective action to make the proper filing by 10 July 2023. The Plaintiff was also directed to reply by 10 July 2023 as to whether including the Offer to Settle by the Defendant in the OHRR was in compliance with FJR 449 and 450. The Defendant was granted an extension of time for the filing of the Reply Affidavit by 21 July 2023 and the Plaintiff was granted an extension of time for the filing of his Final Reply Affidavit by 28 July 2023. The deadline for submissions for this and other preliminary matters by 4 August 2023 was to stand. The Defendant was at liberty to file an OHRR on the objections to the Plaintiff's OHRR filed on 3 July 2023.</p> <p class="Judg-1"><a id="p1_84"></a>84     On 5 July 2023, the Plaintiff sent an email to the Court stating that he was engaging new legal counsel and was seeking an adjournment of the trial dates that had already been fixed for a couple of months. The Court replied seeking that the Plaintiff file the proper notice of the appointment of new solicitors and that unless there were compelling reasons or parties agreed, the trial dates would stand. It was further emphasized that any urgent request needed to be made by the proper channels instead of sending emails to the Court. It was directed that parties were at liberty to argue on costs for any delay or further work necessary in light of such requests.</p> <p class="Judg-1"><a id="p1_85"></a>85     On 17 July 2023, the Defendant and the Plaintiff file their objections to the categorization of hearsay evidence.</p> <p class="Judg-1"><a id="p1_86"></a>86     On 18 July 2023, the Plaintiff filed a summons for the admission of the 3<sup>rd</sup> Son as an additional witness in FC/SUM 2268/XXXX (“<b>SUM 2268</b>”). The next day, 19 July 2023, the Plaintiff filed a notice of appointment of solicitor being CNPLaw LLP (“<b>CNPLaw</b>”). Given such new representation, there was no longer a need to consider any application of the Plaintiff for a McKenzie Friend.</p> <p class="Judg-1"><a id="p1_87"></a>87     Separately, the Plaintiff sent further correspondence on 14 and 18 July 2023 trying to seek an adjournment of the trial of Suit 1. In this regard the Court reiterated the previous instructions on the trial to stand and granted leave to the Plaintiff to file a fresh Notice to Admit Non-Documentary Hearsay Evidence to correct errors noted by the Plaintiff’s new solicitors. Any issue of costs would be addressed at trial.</p> <p class="Judg-1"><a id="p1_88"></a>88     On 25 July 2023, the Defendant filed an objection to the Plaintiff’s sought adjournment and extension of time. The Court replied on 1 August 2023, that the Court’s previous directions for the trial were to stand unless otherwise updated by further Registrar’s Directions.</p> <p class="Judg-1"><a id="p1_89"></a>89     On 28 July 2023, the Plaintiff, through CNPLaw, filed an OHRR stating that Parties consented to the admission of the 3<sup>rd</sup> Son as a further witness for the Plaintiff and sought for SUM 2268 to be granted. The Court replied on 1 August 2024 stating that if consent had been reached the Court will record the order on the 1<sup>st</sup> day of trial and no submissions were required.</p> <p class="Judg-1"><a id="p1_90"></a>90     On 31 July 2023, the Plaintiff further requested for administrative support of a Mandarin and Hokkien interpreter for the Plaintiff’s witnessed, the 3<sup>rd</sup> Daughter and the 3<sup>rd</sup> Son respectively. This was allowed.</p> <p class="Judg-1"><a id="p1_91"></a>91     On 2 August 2023, the Plaintiff filed a Supplemental List of Documents with a supporting affidavit.</p> <p class="Judg-1"><a id="p1_92"></a>92     Then, on 7 August 2023, parties filed the following:</p> <p class="Judg-2"><a id="p1_92-p2_a"></a>(a)     The Defendant filed 2 volumes of Bundle of Affidavits, the 2<sup>nd</sup> Supplementary List of Documents, an Opening Statement and a Bundle of Authorities;</p> <p class="Judg-2"><a id="p1_92-p2_b"></a>(b)     The Plaintiff filed an OHRR on the provision of physical documents, as well as filed 2 volumes of Bundles of Affidavits, an Opening Statement, a Bundle of Authorities, and a Notice to admit non-documentary hearsay evidence.</p> <p class="Judg-1"><a id="p1_93"></a>93     On 10 August 2023, an Agreed Bundle Volume 2 was filed and a physical copy provided to the Courts. Parties had previously filed the Set Down Bundle in April and provided the Agreed Bundle by way of a CD provided to the Court.</p> <p class="Judg-1"><a id="p1_94"></a>94     On 11 August 2023, the Defendant also wrote in to request for a Mandarin and Hokkien interpreter for the Defendant when he was on the witness stand as a witness, which was allowed. On 13 August 2023, the Sunday before the trial, the Defendant also filed a 3<sup>rd</sup> Further Supplementary List of Documents, which contained the attendance notes of Mr CJH and a purported English version of previously submitted WhatsApp Chats.</p> <p class="Judg-Heading-3">The trial of Suit 1</p> <p class="Judg-1"><a id="p1_95"></a>95     The trial of Suit 1 commenced on 14 August 2023 with the following:</p> <p class="Judg-2"><a id="p1_95-p2_a"></a>(a)     We began with certain preliminary issues regarding the Defendant’s 3<sup>rd</sup> Further Supplementary Bundle, where the metadata on Mr CJH’s attendance notes was sought for the Plaintiff to review the authenticity of the attendance notes and for an official translation for the WhatsApp chats. The Plaintiff also raised a contention over the English translation of a certain word stated in Hokkien, “<em>Ah Chek</em>” in the recording of the Matriarch and to whom this referred to. I directed for the Plaintiff to provide their translation to confirm if this was an outstanding issue and also directed for a CD/DVD-Rom of the audio and video clips to be provided with a cover letter, as psychical copies had not been previously provided to the Court;</p> <p class="Judg-2"><a id="p1_95-p2_b"></a>(b)     I confirmed the sequence and scheduling of the witnesses and marked the relevant documents;</p> <p class="Judg-2"><a id="p1_95-p2_c"></a>(c)     For the Notice of Objections for admission of Hearsay evidence, the Defendant’s objection was that the categorization was pursuant to a non-existent paragraph h(i) of section 32(1) of the Evidence Act, which was corrected to paragraphs (h) and (j). For the Plaintiff’s objections, they appear to be just trying to refute the points. As no submissions were filed on 4 August 2023 on this, I confirmed with both sides’ counsel that there were no further issues to be discussed, which they responded in the affirmative;</p> <p class="Judg-2"><a id="p1_95-p2_d"></a>(d)     I granted order-in-terms for SUM 2268, allowing the 3<sup>rd</sup> Son to appear as a witness for the Plaintiff. However, I heard parties on costs and ordered that the Plaintiff pay costs of S$1,000 (all-in) for the application, given that it was only applied so late in the proceedings;</p> <p class="Judg-2"><a id="p1_95-p2_e"></a>(e)     Parties delivered their oral opening statements. Issues were noted and the Plaintiff sought to amend the Statement of Claim to include the allegation that the Matriarch lacked the knowledge and understanding of the 1<sup>st</sup> and 3<sup>rd</sup> Will. I further fixed costs of S$1,000 (all-in) payable by the Plaintiff to the Defendant for this last-minute oral application to amend the pleadings;</p> <p class="Judg-2"><a id="p1_95-p2_f"></a>(f)     I discussed the ground rules for the trial, including that the Plaintiff and the Defendant should not be speaking with the witnesses on what they intended to present on the witness stand before their testimony is provided; and</p> <p class="Judg-2"><a id="p1_95-p2_g"></a>(g)     The Plaintiff was then called as the 1<sup>st</sup> witness at around 4 pm and completed his evidence-in-chief before cross-examination commenced.</p> <p class="Judg-1"><a id="p1_96"></a>96     On the 2<sup>nd</sup> day of trial, 15 August 2023, updates were provided on the preliminary issues and the amended statement of claim was filed. The Plaintiff’s cross-examination continued for half a day, but due to scheduling issues and agreement between parties, the testimony of Dr FN was conducted in the 2<sup>nd</sup> half of day. The Plaintiff’s further cross-examination was directed to be completed on the next day. However, during Dr FN’s testimony he sought to refer to his clinical notes. Parties were in agreement on Dr FN being able to refer to them and Dr FN was directed to disclose such clinical notes.</p> <p class="Judg-1"><a id="p1_97"></a>97     On the 3<sup>rd</sup> day of trial, 16 August 2023, there were further updates on the outstanding preliminary issues. I asked parties to consider whether they would only be making oral closing arguments at the end of trial or seeking to file written submissions. Additionally, whether submissions would be held in abeyance pending the provision of transcripts of trial. Both sides’ counsel were to come back on this subsequently. The testimony of the 3<sup>rd</sup> Daughter was heard before coming back to complete the cross-examination and re-examination of the Plaintiff.</p> <p class="Judg-1"><a id="p1_98"></a>98     On the 4<sup>th</sup> day of trial, 17 August 2023, further updates were obtained on the outstanding preliminary issues. Parties also discussed obtaining the disclosure of Dr JBL’s and Dr NBY’s clinical notes and other supporting documents for their assessment of the Matriarch’s mental capacity at the material times. Given parties agreement, I made the orders for disclosure their disclosure by the following Monday. Additionally, the Plaintiff’s Counsel, as an officer of the Court had to update that she witnessed the Plaintiff speaking with the 8<sup>th</sup> Daughter who was due to testify that day. This was notwithstanding my previous directions on not discussing the witness’s evidence before they take the witness stand. The Plaintiff informed the court that when he was informing the 8<sup>th</sup> Daughter that the courtroom could be cold and to bring a bottle of water, the 8<sup>th</sup> Daughter asked the Plaintiff on how the previous day of trial went and presented him with further evidence she wanted to present. There was a bit of a conversation on this as the 8<sup>th</sup> Daughter was upset but the Plaintiff’s Counsel intervened to stop the conversation. When the 8<sup>th</sup> Daughter took the witness stand, she addressed the issue and that she wanted to disclose photographs/screenshots of further WhatsApp messages on the discussions between herself and the Defendant on the proposed Deed of Family Arrangement which she had not included in her AEIC. I directed that this document be provided to the Defendant’s Counsel first before hearing arguments on whether this should be admitted into evidence. After parties came back from a break, I questioned counsel on whether translations would be necessary, as well as a supplemental AEIC from the 8<sup>th</sup> Daughter and how this would affect the 8 days of trial that had already been fixed. Faced with this, the Plaintiff’s Counsel withdrew their oral request to adduce this evidence. Once this issue was settled, the 8<sup>th</sup> Daughter was then called back to the witness stand where she finished her testimony. We then progressed to the testimonies of Estate Planners 1 and 2 and concluded the day with the testimony of the 2<sup>nd</sup> Daughter.</p> <p class="Judg-1"><a id="p1_99"></a>99     On the 5<sup>th</sup> day of trial, 18 August 2023, a further update was provided on the outstanding preliminary issues. We then progressed for a half a day of testimony from the 3<sup>rd</sup> Son, before starting with half a day of testimony of the Defendant.</p> <p class="Judg-1"><a id="p1_100"></a>100    On the 6<sup>th</sup> day of trial, 22 August 2023, a further update was provided on the outstanding preliminary issues. It was noted that translators’ affidavits were provided over the dispute of the translation of “<em>Ah Chek</em>” that were filed on 21 August 2023. Additionally, Dr NBY’s clinical notes were shared with the other side on 19 August 2023, and Dr JBL’s clinical notes were shared on 20 August 2023. There were certain eligible words in the handwritten notes of Dr JBL, which I sought for the Defendant to obtain a marked up copy from Dr JBL to explain these unintelligible markings. We then continued with the testimony of the Defendant which was paused at 5 pm by agreement, so that we could proceed to the testimony of Ms LKK, who had been scheduled for that day.</p> <p class="Judg-1"><a id="p1_101"></a>101    On the 7<sup>th</sup> day of trial, 23 August 2023, Parties undated on the outstanding preliminary issues including the provision of a marked-up version of Dr JBL’s clinical notes. There were also mandarin words in the notes, which Dr JBL was allowed to explain on the witness stand with the assistance of the interpreter. We proceeded with the expert witness testimony of Dr JBL, which concluded around 12.28 pm, and then we transitioned to some further cross-examination of the Defendant before braking for lunch. In the latter half of the day, we proceeded with the expert witness testimony of Dr NBY, which concluded around 4.04 pm. We then went back to complete the cross-examination of the Defendant.</p> <p class="Judg-1"><a id="p1_102"></a>102    On the last and 8<sup>th</sup> day of trial, 24 August 2023, all preliminary issues were dealt with. Then we had the testimony of Mr CJH, which concluded by about 11.39 am. Further cross-examination of the Defendant was conducted before breaking for lunch. When Parties returned, we had the testimony of Mr DK which concluded around 3.57 pm, before going back to conclude the cross-examination and re-examination of the Defendant.</p> <p class="Judg-1"><a id="p1_103"></a>103    While it was unusual to intersperse the Defendant’s cross-examination, this was done with the agreement of Parties, and I had emphasized that all questioning of the Defendant pertaining to the witness that was interspersed be asked to the Defendant before that witness took the stand.</p> <p class="Judg-1"><a id="p1_104"></a>104    Parties had elected for written submissions after transcripts were made available. I had previously directed that parties were to make their requests for transcripts urgently. Hence, I further directed that Parties file all the documents referred to that were marked that were not previously filed on e-Litigation to be included in an OHRR to be filed by 25 August 2024 and that Written Submissions were due by 8 November 2023 with skeletals for oral rebuttals to be filed by 16 November 2023. I then fixed a full day of oral arguments on 20 November 2023. On 25 August 2025, both sides file the relevant OHRR as directed.</p> <p class="Judg-1"><a id="p1_105"></a>105    Certified true copies of the Notes of Evidence for the trail were released to parties on 31 October 2023. On 7 November 2023, the Defendant’s Counsel sought an extension of time by consent due to certain personal matters. I allowed for Closing Arguments to be submitted by 13 November 2023 with Skeletal Reply Submissions by 17 November 2023 so that the hearing on 20 November 2023 could proceed as planned. Both sides’ Closing Arguments and Skeletal Rebuttal Submissions were duly filed.</p> <p class="Judg-1"><a id="p1_106"></a>106    On 20 November 2023, I heard a full day of oral arguments, and noted that there was a specific question posed to counsel which neither had addressed. Given that oral arguments only concluded late, I directed that Supplementary Submissions be filed and exchange by 8 January 2024 for a decision hearing on 15 January 2024. Such Supplemental Submissions were duly filed by both sides.</p> <p class="Judg-1"><a id="p1_107"></a>107    In a half-day decision hearing on 15 January 2024, I delivered my oral grounds of decision and ordered that:</p> <p class="Judg-2"><a id="p1_107-p2_a"></a>(a)     the 3<sup>rd</sup> Will executed on 19 June 2017 was pronounced to be invalid;</p> <p class="Judg-2"><a id="p1_107-p2_b"></a>(b)     the 2<sup>nd</sup> Will executed on 6 April 2017 was pronounced to be invalid;</p> <p class="Judg-2"><a id="p1_107-p2_c"></a>(c)     the 1<sup>st</sup> Will executed on 22 March 2005 was pronounced to be valid;</p> <p class="Judg-2"><a id="p1_107-p2_d"></a>(d)     Grant of Probate (Order No. FC/PRG 5965/XXXX) issued to the Defendant on 10 December 2020 on the 3<sup>rd</sup> Will was revoked; and</p> <p class="Judg-2"><a id="p1_107-p2_e"></a>(e)     the Defendant was entitled to apply for Grant of Probate for the estate of the Matriarch, deceased, on the basis of the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_108"></a>108    I asked Parties to submit on costs, but there was an indication that parties would like to have a negotiation on the relevant costs orders. In the circumstances, I gave them some time to discuss, but they were unable to reach a consensus. I then heard arguments on costs and by the time this concluded, it had gone past work hours. Hence, I informed parties that I would provide my decision on costs by way of Registrar’s Notice, which was sent the next day on 16 January 2024. I also directed for parties to file OHRRs to enclose the authorities they had relied on for costs, which was done by 16 January 2024 as well. There was also some correspondence thereafter to clarify a typographical error in the costs orders.</p> <p class="Judg-1"><a id="p1_109"></a>109    Being dissatisfied with decision, the Plaintiff filed a notice of appeal on 29 January 2024 in HCF/DCA 10/2024 and shortly thereafter, the Defendant also filed a notice of appeal on the same day, in HCF/DCA 11/2024.</p> <p class="Judg-1"><a id="p1_110"></a>110    On 1 March 2024, the Order of Court, FC/ORC 1010/2024 was extracted by the Defendant. This related to my orders made on 15 January 2024 with the further decision on costs provided in the Registrar’s Notice on 16 January 2024 with further clarifications. Thereafter on 18 April 2024, the Defendant changed counsel from Templars to Chung Ting Fai &amp; Co.</p> <p class="Judg-Heading-1">Issues to be determined</p> <p class="Judg-1"><a id="p1_111"></a>111    Positionally, the Plaintiff took the position that the Matriarch had mental capacity to execute the 2<sup>nd</sup> Will, and that subsequent to that, in the 2 months thereafter, she lost the requisite mental capacity to execute the 3<sup>rd</sup> Will, which was in any event, purportedly procured through undue influence and the Matriarch did not have knowledge or approved of the contents of this Will. Alternatively, the Plaintiff’s secondary position was that if the Matriarch was affected by dementia when she executed the 2<sup>nd</sup> Will, that she had done so in a moment of lucidity.</p> <p class="Judg-1"><a id="p1_112"></a>112    Additionally, the Plaintiff claimed that for the 1<sup>st</sup> Will, while the Matriarch had mental capacity to execute the document, she either did not have knowledge or did not approve of the contents of the 1<sup>st</sup> Will and/or it was procured by way of undue influence of the Defendant.</p> <p class="Judg-1"><a id="p1_113"></a>113    On the other hand, the Defendant initially took the position that:</p> <p class="Judg-2"><a id="p1_113-p2_a"></a>(a)     With regard to the 1<sup>st</sup> Will, it was valid as the Matriarch had the requisite testamentary capacity to execute the Will, had understanding and approval of the contents of the 1<sup>st</sup> Will, and there was no fraud or under influence in the procurement of the same;</p> <p class="Judg-2"><a id="p1_113-p2_b"></a>(b)     In relation to the 2<sup>nd</sup> Will, the Matriarch did not have the requisite testamentary capacity, did not understand or approve of the contents of the 2<sup>nd</sup> Will and that there was undue pressure placed by the Defendant in tis execution; and</p> <p class="Judg-2"><a id="p1_113-p2_c"></a>(c)     For the 3<sup>rd</sup> Will, the Matriarch had the requisite testamentary capacity, had understanding and approval of the contents of the 3<sup>rd</sup> Will, and there was no fraud or under influence in the procurement of the same.</p> <p class="Judg-1"><a id="p1_114"></a>114    I had questioned whether the positions on testamentary capacity of the Matriarch for the 2<sup>nd</sup> and 3<sup>rd</sup> Will were inconsistent, given that it was never part of the Defendant’s case that the Matriarch had fluctuating mental capacity. The Defendant clarified his position at the oral closing arguments that the Matriarch had the requisite testamentary capacity up to the execution of the 3<sup>rd</sup> Will, and in fact, till the execution of the Transfer Instrument in July 2017 and Statutory Declaration in September 2017. The Defendant abandoned the position that the Matriarch did not have the requisite mental capacity to execute the 2<sup>nd</sup> Will but instead claimed that:</p> <p class="Judg-2"><a id="p1_114-p2_a"></a>(a)     That the Matriarch did not understand and approve of the contents of the 2<sup>nd</sup> Will; and</p> <p class="Judg-2"><a id="p1_114-p2_b"></a>(b)     There was undue influence by the Defendant, even though this was not specifically pleaded in the pleadings;</p> <p class="Judg-2"><a id="p1_114-p2_c"></a>(c)     In the alternative, the Defendant claimed that the 1<sup>st</sup> Will was valid, should both the 2<sup>nd</sup> and 3<sup>rd</sup> Will be invalidated.</p> <p class="Judg-1"><a id="p1_115"></a>115    As I had reiterated to Parties during the hearings, notwithstanding the positions that they had taken, the Court was at liberty to reach a position that was not the same as either one of their stated primary and/or secondary positions, based on the Court’s assessment of the evidence at hand and the law.</p> <p class="Judg-1"><a id="p1_116"></a>116    Hence, the issues that the Court needs to determine are as follows:</p> <p class="Judg-2"><a id="p1_116-p2_a"></a>(a)     Whether the 1<sup>st</sup> Will was valid and effective;</p> <p class="Judg-2"><a id="p1_116-p2_b"></a>(b)     Whether the 2<sup>nd</sup> Will was valid and effective, and therefore revoked the 1<sup>st</sup> Will;</p> <p class="Judg-2"><a id="p1_116-p2_c"></a>(c)     Whether the 3<sup>rd</sup> Will was valid and effective, and therefore revoked the 2<sup>nd</sup> Will and/or 1<sup>st</sup> Will; and</p> <p class="Judg-2"><a id="p1_116-p2_d"></a>(d)     Whether neither the 1<sup>st</sup>, 2<sup>nd</sup> nor 3<sup>rd</sup> Will were valid and effective, and therefore the ISA should apply.</p> <p class="Judg-2"><a id=""></a>In considering the above, whether the Matriarch had the requisite testamentary capacity to make a will, whether the Matriarch must have had the knowledge and understanding of the contents of the will and approved of it and whether the Matriarch was free from undue influence or the effects of fraud, as elaborated below.</p> <p class="Judg-Heading-1">The Applicable Law </p> <p class="Judg-1"><a id="p1_117"></a>117    It was agreed between Parties that the applicable law on the validity of Wills was pronounced in the case of <b><em>Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/SLR/[2010] 4 SLR 0373.xml')">[2010] 4 SLR 373</a></b> (“<b><em>Muriel Chee</em></b>”) that 3 elements need to be satisfied:</p> <p class="Judg-2"><a id="p1_117-p2_a"></a>(a)     the testator must have the requisite testamentary capacity to make a will;</p> <p class="Judg-2"><a id="p1_117-p2_b"></a>(b)     the testator must have knowledge and understanding of the contents of the will and approved of it; and</p> <p class="Judg-2"><a id="p1_117-p2_c"></a>(c)     the testator must be free from undue influence or the effects of fraud.</p> <p class="Judg-Heading-3">Testamentary Capacity</p> <p class="Judg-1"><a id="p1_118"></a>118    With regard to testamentary capacity, pursuant to the elaboration of <em>Muriel Chee</em> in <b><em>ULV v ULW </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/SLR/23265-SSP.xml')">[2019] 3 SLR 1270</a></b> (“<b><em>ULV v ULW</em></b>”) at [25], the propounder of a will bears the burden to prove that:</p> <p class="Judg-2"><a id="p1_118-p2_a"></a>(a)     the testator understands the nature of the act and what its consequences are;</p> <p class="Judg-2"><a id="p1_118-p2_b"></a>(b)     the testator knows the extent of his property of which he is disposing;</p> <p class="Judg-2"><a id="p1_118-p2_c"></a>(c)     the testator knows who his beneficiaries are and can appreciate their claims to his property; and</p> <p class="Judg-2"><a id="p1_118-p2_d"></a>(d)     the testator is free from an abnormal state of mind that might distort feelings or judgments relevant to making the will.</p> <p class="Judg-1"><a id="p1_119"></a>119    As held at [217] to [219] of <b><em>UWF &amp; Anor v UWH &amp; Anor </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/Judgment/25432-SSP.xml')">[2020] SGHCF 22</a>; <a class="pagecontent" href="javascript:viewPageContent('/SLR/26192-SSP.xml')">[2021] 4 SLR 314</a></b> (“<b><em>UWF v UWH</em></b>”), an indication of testamentary capacity would be the rationality of the Will having regard to its terms and the identities of the beneficiaries. If a duly executed will was rational on its face, the testator was presumed to have had testamentary capacity. The party challenging the Will might rebut this presumption by adducing evidence to the contrary, such as evidence that the testator was suffering from a medical illness that was serious enough for the court to find that the testator lacked testamentary capacity. The burden of proving the unsoundness of mind would lie with the person alleging it.</p> <p class="Judg-1"><a id="p1_120"></a>120    Where the testator suffers from a mental disability or illness, it has to be shown that the testator was lucid at the execution of the Will. The severity of the illness will affect the threshold of proof required. The more serious the illness prior to the making of the Will, the higher should be the threshold of proof.</p> <p class="Judg-1"><a id="p1_121"></a>121    Pursuant to <em>Muriel Chee</em> at [42], the Court should not abdicate its fact-finding role to experts, especially when there is conflicting medical evidence on the testamentary capacity, and the Court would have to decide on this issue, taking into consideration the opinions of the medical experts as well as nonmedical testimony on the behaviour of the testator before, during or after the execution of the Will.</p> <p class="Judg-1"><a id="p1_122"></a>122    It should be noted, that in <b><em>BUV v BUU &amp; Anor </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/Judgment/23303-SSP.xml')">[2019] SGHCF 15</a>; <a class="pagecontent" href="javascript:viewPageContent('/SLR/24563-SSP.xml')">[2020] 3 SLR 1041</a></b>, albeit a case pertaining to whether a person lacked capacity to make decisions on her personal welfare and property instead of testamentary capacity, Justice Aedit Abdullah elaborated on the tests discussed on <b><em>Re BKR </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/Judgment/17323-SSP.xml')">[2015] SGCA 26</a>; [2015] 4 SLR</b> that mental capacity under section 4(1) of the Mental Capacity Act 2008 (“<b>MCA</b>”) had a functional and clinical component. Additionally, the requirements under s 5(1) of the MCA, which defined the inability to make a decision, was to be read conjunctively (i.e. whether the person was unable to understand the information relevant to the decision; to retain that information; to use or weigh that information as part of the process of making the decision; or to communicate his or her decision (whether by talking, using sign language or any other means). It was further clarified that the inability to make a decision was also to be considered with whether the decision could be made by P with “<em>assistance</em>” as defined under section 3(3) of the MCA: “<em>[a] person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success</em>”. In this regard, Justice Aedit Abdullah held at [109] to [110] that:</p> <p class="Judg-Quote-1">109    Considering the evidence as a whole, I was satisfied that the second defendant’s mental abilities fell short of what was stipulated in ss 5(1)(a) to 5(1)(c) of the MCA. Section 5(1)(d) of the MCA, which concerned the second defendant’s ability to communicate decisions, was not at issue here. But this was not determinative; as noted in Re BKR (HC) ([31] supra) at [71], the requirements in ss 5(1)(a) to 5(1)(c) are usually considered together.</p> <p class="Judg-Quote-1">110     <em>The nature of the second defendant’s difficulties also put into doubt the possibility that assistance of the sort contemplated under s 3(3) of the MCA would have made a difference. Section 3(3) states that a person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been unsuccessful.</em> I read this stipulation as geared towards facilitative assistance, ie, that which enables a person to make a decision. This could entail the use of simplifying language, memory aides, and the like: see also s 5(2) of the MCA. In other words, the assistance conceived of in ss 3(3) and 5(2) of the MCA is aimed at helping a person retain her existing decision-making ability. Given the second defendant’s performance in court, I had grave doubts that such facilitative assistance would be helpful to her. What was of concern here was that the second defendant’s ability was compromised to begin with: her inability to understand and retain information and to remember what was said minutes or hours before would prevent her from benefiting from any level of assistance that fell short of a substitution of judgment on her behalf. <em>What she needed was not assistance under s 3(3) of the MCA, but a deputy to make decisions concerning her property and affairs on her behalf</em>.</p> <p class="Judg-Quote-1">[emphasis added]</p> <p class="Judg-Heading-3">Knowledge and Approval of Contents</p> <p class="Judg-1"><a id="p1_123"></a>123    Where testamentary capacity is established there is a rebuttable legal presumption arises that the testator knew and approved of the contents of the will at the time of execution. While the legal burden of proof lies, at all times, with the propounder of the will, the evidential burden of proof shifts in ordinary circumstances to the opponent of the Will to rebut this presumption.</p> <p class="Judg-1"><a id="p1_124"></a>124    This is unless there are well-grounded suspicious circumstances surrounding the execution of the will, then this presumption does not arise and the propounder of the will must still produce affirmative evidence of the testator’s knowledge and approval.</p> <p class="Judg-1"><a id="p1_125"></a>125    Whether testator approved of or had knowledge of the contents of the will is based on whether the Testator understood:</p> <p class="Judg-2"><a id="p1_125-p2_a"></a>(a)     what was in the will when he/she signed it; and</p> <p class="Judg-2"><a id="p1_125-p2_b"></a>(b)     what its effect would be.</p> <p class="Judg-Heading-3">Undue influence</p> <p class="Judg-1"><a id="p1_126"></a>126    As held in <em>UWF v UWH</em> at [221] to [222], in the context of a will, undue influence cannot be presumed and the burden of proof is on the party alleging the undue influence and in such a context, it means coercion, i.e. the testator is coerced into making a will (or part of a will), which he/she does not want to make. It is not mere persuasion, appeals to ties of affection or pity for a future destitution, but the persuasion or pressure must have been of such an intensity as to overpower the volition of the testator without actually convincing him or her. It must be shown that the party accused of undue influence dominated the testator to such an extent that the testator’s independence was so undermined that the accused party’s domination caused the testator to execute the will. This is a high burden of proving undue influence to vitiate any testamentary disposition.</p> <p class="Judg-1"><a id="p1_127"></a>127    The Plaintiff has also cited the UK case of <b><em>Edwards v Edwards </em></b><b>[2007] WTLR 1387</b>, where beyond undue influence would is the separate claim of fraud, where the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In this case I do not think either have gone as far as to fraud in their arguments.</p> <p class="Judg-1"><a id="p1_128"></a>128    The Defendant further highlighted the UK Case of <b><em>Wingrove v Wingrove </em></b><b>(1885) 11 P D 81</b> at 83 that even if the intention was brought about by unconscientious exploitation of influence over the testator, that will not amount to probate undue influence in the absence of coercion.</p> <p class="Judg-1"><a id="p1_129"></a>129    Overall, the Court is not to consider whether the testator’s testamentary dispositions were fair, as a testator may dispose of his or her estate as he or she wishes as a free agent.</p> <p class="Judg-Heading-1">Preliminary issue: Questions of the Matriarch’s Purported Testamentary Wishes</p> <p class="Judg-1"><a id="p1_130"></a>130    In this regard, I deal with the arguments over the development of the various properties and the general management of the business and whether this gives any indication on The Matriarch’s testamentary wishes.</p> <p class="Judg-Heading-3">10 &amp; 10A VR &amp; Renovations of 2 &amp; 4 JM</p> <p class="Judg-1"><a id="p1_131"></a>131    The Plaintiff had raised arguments about 10 and 10A VR and the consequential redevelopment of 2 and 4 JM.</p> <p class="Judg-1"><a id="p1_132"></a>132    The Plaintiff claims that the Patriarch must have not meant to gift the Defendant with the property of 10 VR, but it should be noted that when there is financial contribution by a father towards the acquisition of property placed in his son’s name, there would be a rebuttable presumption of advancement. However, as clarified through the trial process, neither side is seeking a declaration on this, and in any event, this would be outside the purview of the FJC.</p> <p class="Judg-1"><a id="p1_133"></a>133    I further find that the Plaintiff has taken an inconsistent position between 10 VR being purchased by the Patriarch and placed in the Defendant’s name for the benefit of the whole family (inclusive of sons and daughters) and argument that Father was a traditionalist who only wanted the sons to inherit. The fact that the Defendant was able to make unilateral decisions does appear to suggest that the property was not just held on trust.</p> <p class="Judg-1"><a id="p1_134"></a>134    While neither side has provided evidence to support the sale of 10 &amp; 10A VR, and the nett sale proceeds obtained, it is not the purpose of this trial to determine such historical issues. It does, however, appear undisputed that a sum was channelled to the renovations of 4 &amp; 2 JM, and a sum of S$160,000 being either a loan or return of monies to the Patriarch’s company.</p> <p class="Judg-1"><a id="p1_135"></a>135    In any event, this is not a question for this Court to determine, and that if a declaration of trust was sought on this, this would have to be pursued in High Court for any such <em>inter vivos</em> gift or trust.</p> <p class="Judg-1"><a id="p1_136"></a>136    This further did not shed light on what the Matriarch, The Matriarch’s testamentary wishes would be.</p> <p class="Judg-Heading-3">Issues of Business Management</p> <p class="Judg-1"><a id="p1_137"></a>137    Much evidence has been led about the allegations regarding the Defendant’s business dealings and the management of the Patriarch’s companies and business. The Plaintiff’s submission was because of the Defendant’s conduct, this led to the demise of the Patriarch’s business and thus, the Matriarch had no intention to benefit the Defendant under her Will.</p> <p class="Judg-1"><a id="p1_138"></a>138    However, the Plaintiff has not provided sufficient evidence of this purported mismanagement of the business. In any event, this is not what the trial is about, and these company issues are outside the scope of this court’s purview.</p> <p class="Judg-1"><a id="p1_139"></a>139    More importantly, the Plaintiff has not provided sufficient evidence to show that the Matriarch also had the same sentiments as the Plaintiff about the purported mismanagement of the business and consequentially that she would have never intended for the Defendant to benefit under her Will.</p> <p class="Judg-1"><a id="p1_140"></a>140    The Plaintiff’s case runs contrary to the evidence that the Matriarch, The Matriarch, perceived the Defendant to be a successful businessman, calling him “<em>Towkay Besar</em>” and would seek money from him. Her seeking of money from him, was perhaps not exclusive to him, but he would appear to have been to be a significant contributor of money to the Matriarch, The Matriarch, as his payments were more regular and the other children who did provide some money as and when and did not appear to be that substantial.</p> <p class="Judg-1"><a id="p1_141"></a>141    There was also nothing to suggest that the Matriarch would not want to gift the Defendant any further inheritance just because he appeared to be successful with his finances. The Plaintiff’s own case is that there was only an appearance of success, but that the Defendant had quite a few business crises and was in fact in financial trouble, but even if this was the case, the Matriarch, The Matriarch appeared to be unaware of this.</p> <p class="Judg-1"><a id="p1_142"></a>142    All evidence from 2<sup>nd</sup>, 3<sup>rd</sup> and 8<sup>th</sup> Daughters on the Matriarch’s, The Matriarch’s intentions appear to come from purported recounts from the 3<sup>rd</sup> Son, who admitted on the witness stand that he did not hear or see certain things, aside from a couple of purported discussions, which he peeped in on, and more importantly, he claimed that he did not discuss any such allegations with his siblings. I delve further into this subsequently.</p> <p class="Judg-1"><a id="p1_143"></a>143    The claims that the Matriarch, was superstitious and would not have intended to make a Will with the Defendant, did not appear to be consistent with the positions of the Plaintiff, who was relying on the 2<sup>nd</sup> Will.</p> <p class="Judg-1"><a id="p1_144"></a>144    In the circumstances, there was no significant evidence that the making of a Will in favour of the Defendant and the 7 daughters (i.e. the 4<sup>th</sup> to 10<sup>th</sup> Daughters) was inherently irrational. The Matriarch, The Matriarch was a free agent, who was at liberty to make whatever bequest she wanted. I will elaborate on this further down in this decision.</p> <p class="Judg-1"><a id="p1_145"></a>145    Having dealt with that I went chronologically backwards to consider the validity of the most recent 3<sup>rd</sup> Will executed in June 2017 to the validity of the 1<sup>st</sup> Will executed in March 2005.</p> <p class="Judg-Heading-1">Validity of the 3<sup>rd</sup> Will</p> <p class="Judg-1"><a id="p1_146"></a>146    With regard to the validity of the 3<sup>rd</sup> Will, I first considered whether the Matriarch had the requisite testamentary capacity to make this 3<sup>rd</sup> Will. If such testamentary capacity was found to be absent, it would not be necessary for the Court delve further as whether there was undue influence or even fraud.</p> <p class="Judg-1"><a id="p1_147"></a>147    Thus, in this analysis of testamentary capacity, it was pertinent to review the evidence of the persons who had witnessed the execution of the 3<sup>rd</sup> Will and other related documents, the opinions of medical professionals who made assessments of the Matriarch’s mental capacity around the time of the execution of the 3<sup>rd</sup> Will and the further witness accounts of the Matriarch after the execution of the 3<sup>rd</sup> Will.</p> <p class="Judg-Heading-3">Mr CJH</p> <p class="Judg-1"><a id="p1_148"></a>148    The execution of the 3<sup>rd</sup> Will was only witnessed by Mr CJH and his associate. Mr CJH recounted having explained the 3<sup>rd</sup> Will to the Matriarch, in mostly Mandarin, but her responses were in Hokkien. Mr CJH did not note any issues of mental capacity and also made a revision in the draft 3<sup>rd</sup> Will based on his conversation with the Matriarch to note that she was bequeathing her half of 2 JM to the Defendant as he had been taking care of her and paying for her living and medical expenses. Mr CJH did not explore whether the other children were also paying for such expenses or taking on such responsibilities.</p> <p class="Judg-1"><a id="p1_149"></a>149    The contents of the 3<sup>rd</sup> Will were largely similar to the 1<sup>st</sup> Will with the main difference being the increase in the quantum of the gifts to the 4<sup>th</sup> to 10<sup>th</sup> Daughters from S$5,000 to S$10,000. Though Mr CJH recalled pointing out this difference to the Matriarch, he did not recall asking her for the rationale behind this. It is noted, that, generally, when there are no mental capacity issues, there is no obligation to delve into the rationale for the gifts made in a will, so long as it is clear that the testator understood the contents and approved of the Will. However, in this case, it is evident that at the very least there was a concern over the Matriarch’s mental capacity.</p> <p class="Judg-1"><a id="p1_150"></a>150    Mr CJH had noted that the Matriarch was more progressed in years than he initially thought, being 87 years old instead of being in her early 80s. However, besides that, he was unaware of the Matriarch’s potential dementia issues. Given her age, Mr CJH did, however, indicate in his attendance notes that a mental capacity test should be conducted on the Matriarch as a precaution. Mr CJH could not recall if he told the Defendant this before the 3<sup>rd</sup> Will was executed, but he definitely recalled telling him after the Matriarch had signed the 3<sup>rd</sup> Will. Mr CJH did not do any specific tests on her memory or to see if she could weigh information, but just had a general conversation with her about her diabetes, leg weakness and high blood pressure and assessed her to be coherent. And while the issue of mental capacity should be seen with the view of providing assistance in the making of the decision, Mr CJH did not take any exceptional measures to try to provide such assistance as he was unaware that such help might have been needed.</p> <p class="Judg-1"><a id="p1_151"></a>151    When questioned as to a hypothetical question of if he were informed that the Matriarch had been suffering from moderately severe dementia whether he would believe that she would be incapable of understanding and approving of the contents of the 3<sup>rd</sup> Will, Mr CJH opined that he was not in a position to answer that, as he was not a psychiatrist, which suggests that if he were told, he would not be confident in assessing the Matriarch’s mental capacity without a psychiatrist.</p> <p class="Judg-Heading-3">Dr FN</p> <p class="Judg-1"><a id="p1_152"></a>152    Dr FN, a specialist in Geriatric Psychiatry, who did a mental capacity assessment of the Matriarch on 10 and 17 July 2017, determined that the Matriarch lacked mental capacity and that any decisions made in the preceding year would be questionable and “<em>considered invalid in view of the high likelihood of being susceptible to manipulation and influence</em>”.</p> <p class="Judg-1"><a id="p1_153"></a>153    The Defendant argued that Dr FN based his opinion on there having been a record of stroke for the Matriarch, which was purportedly informed to him by the Plaintiff, even though the medical documents provided had not disclosed that.</p> <p class="Judg-1"><a id="p1_154"></a>154    In any event, Dr FN did perform the recommended standard of mental capacity assessment, including the clock face test and interlocking pentagons test, which both indicated a severe level of disorientation. The Matriarch also gave inaccurate information on when her late husband had passed, her home address and also misidentified, the 1<sup>st</sup> Daughter as her elder sister and the Plaintiff as her elder brother. She also claimed that her 6<sup>th</sup> son took the house that belonged to her entirely, when she only had 4 sons even accounting for one that had been given up for adoption (i.e. the 2<sup>nd</sup> Son) and one who was informally adopted (i.e. the 3<sup>rd</sup> Son). The Matriarch also mixed up the order of her children.</p> <p class="Judg-1"><a id="p1_155"></a>155    Dr FN also clarified that even if he was not informed of the Matriarch having suffered a prior stroke that he would maintained the diagnosis of vascular dementia, in light of The Matriarch’s other medical conditions of diabetes, hypertension and hyperlipidemia. Additionally, in subsequent testimony, the 3<sup>rd</sup> Son revealed on the witness stand that the Matriarch had been purportedly hospitalized for a minor stroke and treated at Bedok Polyclinic, from which no records were provided.</p> <p class="Judg-1"><a id="p1_156"></a>156    The Defendant further argued that Dr FN’s testing was in relation to whether the Matriarch lacked mental capacity for the purposes of a deputyship application, and that it did not go into specific knowledge or memory in relation to her assets, identity of beneficiaries and understanding of the will and rationale for distribution. While those specific questions were not delved into, Dr FN gave a clear opinion that the Matriarch lacked the capacity to make decisions relating to her property and affairs, as:</p> <p class="Judg-2"><a id="p1_156-p2_a"></a>(a)     she was unable to understand the information relevant to the decision;</p> <p class="Judg-2"><a id="p1_156-p2_b"></a>(b)     she was unable to retain information long enough to make the decision; and</p> <p class="Judg-2"><a id="p1_156-p2_c"></a>(c)     she was unable to weigh the information as part of the process of decision-making.</p> <p class="Judg-1"><a id="p1_157"></a>157    This clearly extends to the making of a will. In fact, the MCA, under section 25(3)(d), specifically excludes a Deputy assisting a person lacking mental capacity to execute a statutory will and this can only be made by the Court making an order. Additionally, given Dr FN’s assessment of susceptibility of manipulation and influence, it did not seem apparent that the Matriarch would be able to make such decision with assistance, as she wasn’t able to properly understand, retain and weigh the necessary information to make such a decision. Testamentary capacity is a subset of mental capacity to make decisions on a person’s property and affairs in relation to the specific decision of estate planning.</p> <p class="Judg-1"><a id="p1_158"></a>158    I, therefore, found the Defendant’s position that Dr FN’s evidence somehow lent support to the argument that the Matriarch had testamentary capacity, knowledge and approval to make the 3<sup>rd</sup> Will to be wholly unfounded.</p> <p class="Judg-1"><a id="p1_159"></a>159    While Dr Ngui did concede that there could be good days for the Matriarch where the 3<sup>rd</sup> Will could have been executed during moments of lucidity, there was no evidence to show that the Matriarch was in a moment of lucidity when she executed the 3<sup>rd</sup> Will. Furthermore, at no material time was it the Defendant’s case that the Matriarch had fluctuating mental capacity, even when I had specifically questioned the Defendant’s Counsel on this.</p> <p class="Judg-Heading-3">Dr JBL &amp; Mr DK</p> <p class="Judg-1"><a id="p1_160"></a>160    Dr JBL only reviewed the Matriarch, when she was about to execute the Transfer Instrument on 25 June 2023, 6 days after execution of 3<sup>rd</sup> Will on 19 June 2017. Mr DK, in concert with Dr JBL, only attended to the execution of the Transfer Instrument and not the 3<sup>rd</sup> Will. Dr NBY also only did a review on 14 September 2017 (i.e. about 3 months after) with regard to the Matriarch’s mental capacity to execute the Statutory Declaration and also admitted that he did not test for testamentary capacity which would be “<em>more complicated</em>”. Dr NBY also appears to have relied heavily on Dr JBL’s assessment, which is elaborated on below. The Statutory Declaration did not confirm the execution of the 3<sup>rd</sup> Will, and on the evidence, neither Dr JBL nor Dr NBY were informed of this 3<sup>rd</sup> Will. Hence, there was no assessment of testamentary capacity when the Matriarch executed the 3<sup>rd</sup> Will.</p> <p class="Judg-1"><a id="p1_161"></a>161    The Defendant sought the Court to make an inference that if the Matriarch was assessed to have mental capacity for similar decisions after the execution of the 3<sup>rd</sup> Will and was found to have the requisite mental capacity by medical professionals, the fair assumption would be that the Matriarch had capacity when executing the 3<sup>rd</sup> Will. This would invariably be on the basis that the Matriarch’s mental capacity was not fluctuating but in general decline only. To consider whether the Court should make such an inference, it would be important to review the basis of Dr JBL’s and Dr NBY’s assessments.</p> <p class="Judg-1"><a id="p1_162"></a>162    Dr JBL admitted on the witness stand that he did not regularly do mental capacity assessments for person with dementia that often and that his work was more commonly with working adults or students. Notwithstanding this, Dr JBL, in his assessment, did delve into the extent of the Matriarch’s knowledge of her assets to the extent of her half share of 2 JM and that the Plaintiff owned the other half. Additionally, that she had stated that she wanted to provide her half of 2 JM to the Defendant when she passed away.</p> <p class="Judg-1"><a id="p1_163"></a>163    However, the Matriarch was inconsistent as to whether she was able to speak in Hokkien (i.e. claiming she could not speak Hokkien when speaking in Hokkien) and she was inconsistent as to where her home was (i.e. she could not state where it was located but instead asked Dr JBL to ask the Defendant instead). When suggested locations, she answered yes to staying in Sembawang, MacPherson and Toa Payoh, when only one of this was correct. Additionally, she was unable to state that she had inherited her half share of 2 JM from her late husband and that she had been residing there since 1986 instead of just staying there for the last 10 years as she had claimed.</p> <p class="Judg-1"><a id="p1_164"></a>164    Dr JBL also did not delve into whether the Matriarch could recall who her other children were and why she was not bequeathing her half share of 2 JM to them instead of the Defendant. However, Dr JBL did get her to disclose 3 stated reasons for her decision being:</p> <p class="Judg-2"><a id="p1_164-p2_a"></a>(a)     the Plaintiff already has half of 2 JM;</p> <p class="Judg-2"><a id="p1_164-p2_b"></a>(b)     the Defendant was the eldest son and thus there was an assumption made by Dr JBL that he was also the favourite of her late husband, the Patriarch, as she had informed Dr JBL that the Patriarch used to bathe the Defendant, as a child and generally, given the significance certain Asian families place on being the eldest son; and</p> <p class="Judg-2"><a id="p1_164-p2_c"></a>(c)     her daughters did not count to the Matriarch when it came to bequeathing or giving significant gifts. The Matriarch only appeared to want to give her substantial assets to the sons.</p> <p class="Judg-1"><a id="p1_165"></a>165    The assumption that the Defendant was the favourite child was however not tested by any questioning by Dr JBL. The Matriarch was noted to be oriented to time, place and person, identifying that she was at the Defendant’s Home, that it was daylight and could identify Dr JBL as a doctor, the Defendant and the domestic helper. However, it is noteworthy that these 3 reasons did not go into why the gift was being made at that juncture, and that after the transfer was effected that the Matriarch understood that she would no longer have any title or rights to 2 JM, and thus, no power to make any decisions on the property and that her stay there would be subject to the discretion of the owners which would be the Plaintiff and the Defendant. The Matriarch had only, at best, expressed to Dr JBL that she wanted to give her half share to the Defendant when she was no longer around. It does not appear evident from Dr JBL’s assessment, that the Matriarch understood the effect of the Transfer Instrument, or was able to weigh such information in her decision-making.</p> <p class="Judg-1"><a id="p1_166"></a>166    Mr DK though, purportedly went through with the Matriarch the 3 implications of a transfer of her half share of 2 JM, that:</p> <p class="Judg-2"><a id="p1_166-p2_a"></a>(a)     she would no longer be an owner of the property, which Mr DK believed she understood;</p> <p class="Judg-2"><a id="p1_166-p2_b"></a>(b)     she would no longer have legal rights to reside there, which Mr DK believed she was not concerned about; and</p> <p class="Judg-2"><a id="p1_166-p2_c"></a>(c)     her 2 sons would be the owners and could deal with the house without her permissions, which MR DK also believed she understood.</p> <p class="Judg-1"><a id="p1_167"></a>167    Mr DK asked the Matriarch whether she intended to continue living in 2 JM after the transfer and he recalled that he did not have an impression that the Matriarch thought her life would change in any way after the signing. However, based on the nature of the Transfer Instrument and what appears to have happened afterwards, it very well could have been a significant change.</p> <p class="Judg-1"><a id="p1_168"></a>168    Dr JBL noted that the Matriarch had incoherent responses to his questioning due to dementia and that she was “<em>suggestible</em>” based on her responses, which he noted in his notes that “<em>caution needed when understanding</em>”. Dr JBL tried to counter this suggestibility with tailoring his questioning. Overall, Dr JBL took the position that if questions were focused and targeted in the area of decision-making bearing in mind the impairments of the Matriarch’s dementia, there can be mental capacity for the specific decision.</p> <p class="Judg-1"><a id="p1_169"></a>169    I agree that just because a person suffers from dementia, that does not mean that the person lacks mental capacity, it depends on the severity of mental condition and the type of decisions. Additionally, it depends on whether with proper assistance, whether the person could be able to make the decision.</p> <p class="Judg-1"><a id="p1_170"></a>170    The Matriarch’s dementia was assessed by Dr FN to be moderately severe about 2 weeks after Dr JBL’s assessment. Additionally, by the time of Dr JBL’s assessment, the Matriarch had already scored 14/28 for MMSE with Dr TST from Hua Mei Clinic indicating mental capacity impairment. And nothing from Dr JBL’s assessment appears to contradict this, save that perhaps an MMSE may not be the best tool for assessment when it relates to a person who is illiterate, such as the Matriarch.</p> <p class="Judg-1"><a id="p1_171"></a>171    The disposition of property without any compensation, while she was still alive and had continuing needs, would have been quite a significant decision for the Matriarch. Even the Court in dealing with Deputyship applications under the MCA, would be particularly circumspect on such types of transactions.</p> <p class="Judg-1"><a id="p1_172"></a>172    If I were to go by Dr JBL’s reasoning, by analogy, this would mean that for a person that the Court had declared to lack mental capacity in relation to personal welfare and property and affairs under MCA (which is what Dr FN had tested), that the Deputy could argue that P was still able to exercise specific decision making ability to a targeted question and therefore allow P to make a disposition of a large gift to the Deputy (which is what Dr JBL purported to test). This did not seem to be consonant with the law and the necessary protection of a person who purportedly lacked mental capacity.</p> <p class="Judg-1"><a id="p1_173"></a>173    In the circumstances, if I were to prefer one expert’s opinion over the other, I would prefer Dr FN over Dr JBL and Dr NBY. Dr FN was experienced in this field, and he had conducted 2 occasions of assessment as opposed to Dr JBL who conducted an assessment on 1 occasion and Dr NBY who had the shortest assessment, which I will elaborate on later.</p> <p class="Judg-1"><a id="p1_174"></a>174    In any event, Dr JBL also could not speak to the Matriarch’s testamentary capacity to execute the 3<sup>rd</sup> Will, but his assessment only went to the execution of the Transfer Instrument. Dr Lee also stated in his testimony that if he were to have tested for testamentary capacity, he would have to assess whether the person (1) understood what the decision making was about, (2) appreciate how it related to him/her and (3) recognized the choices that he/she had and (4) the reason why he/she made the choice. So, while it is not necessary to interview other persons, Dr JBL was of the view that if the responses were not satisfactory, he may speak with other persons to check.</p> <p class="Judg-1"><a id="p1_175"></a>175    It can be argued that since this assessment by Dr JBL was done 6 days after the execution of the 3<sup>rd</sup> Will and therefore it should apply to purportedly prove the Matriarch, had testamentary capacity when she executed the 3<sup>rd</sup> Will. However, given the Matriarch’s condition, there was insufficient evidence provided that she was in a moment of lucidity when she executed the 3<sup>rd</sup> Will.</p> <p class="Judg-Heading-3">Dr NBY &amp; Ms LKK</p> <p class="Judg-1"><a id="p1_176"></a>176    Dr NBY appears to have had the briefest assessment of the Matriarch as he was only approached when Dr JBL was unavailable and appeared to have relied on Dr JBL’s assessment, a couple of months prior, to determine that the Matriarch understood the Statutory Declaration she was executing. This assessment only took about 46 minutes with the MMSE portion only taking up 15 to 20 minutes. However, he also understood that mental capacity could fluctuate and even though he was provided with Dr FN’s Medical Report, Dr NBY felt that Dr FN’s assessment was too broad and not focused on the specific task.</p> <p class="Judg-1"><a id="p1_177"></a>177    Dr NBY even assessed the Matriarch’s MSSE to be 11/30. Dr NBY opined that MMSE was probably not the appropriate tool to assess cognitive functions as she was illiterate and lacked formal education. However, even if we were accounting for the Matriarch’s lack of education affecting the scores, the MMSE score in September 2017 was lower than previously assessed in March 2017 indicating a significant decline.</p> <p class="Judg-1"><a id="p1_178"></a>178    Ms LKK, appeared to rely on the assessments done and did not do further significant investigation, but noted that the Matriarch was coherent and seemed to understand what was explained to her in Hokkien.</p> <p class="Judg-1"><a id="p1_179"></a>179    In any event, as stated earlier, this only went to historical recounting of signing the Transfer Instrument and not to the execution of the 3<sup>rd</sup> Will, as this was wholly absent from the recounting of facts in the Statutory Declaration. Moreover, the transfer was eventually aborted and title was never transferred from the Matriarch to the Defendant during her lifetime.</p> <p class="Judg-Heading-3">Corroboration by other persons</p> <p class="Judg-1"><a id="p1_180"></a>180    There was another doctor who did a medical assessment of the Matriarch, but either refused to be called as a witness or it was decided that he would not be called as a witness, i.e. Dr CS. Dr CS did execute a medical report on 15 September 2017 certifying that the Matriarch lacked mental capacity and scored even lower on the MMSE. Very little weight is placed on this document, as Dr CS was not made available for cross-examination, but the presence of a report, as a document, does appear to corroborate the Matriarch’s mental capacity issues.</p> <p class="Judg-1"><a id="p1_181"></a>181    While the Defendant had in his possession the Transfer Instrument and Statutory Declaration executed by the Matriarch, given SLA’s position of seeking an order of court, the Defendant purportedly aborted taking further legal action as he purportedly did not want the family matter to be litigated. To the rest of the family, the Defendant’s decision not to proceed with this appeared to be in response to the Matriarch’s distress after the fact, where witnesses recounted her appearing not to understand what she had signed and being worried that she would be homeless and even threatening to commit suicide.</p> <p class="Judg-1"><a id="p1_182"></a>182    Evidence had been provided that the Matriarch could not recall appointing lawyers for the transfer of her half share of 2 JM and that she wanted to jump down from the balcony on the upper floor because over this transfer. This led the 8<sup>th</sup> Daughter to bring the Matriarch to see another set of lawyers, Tan Kim Seng &amp; Partners, where the Matriarch did not appear to be able to recall what documents she had executed and placed her thumbprint on.</p> <p class="Judg-1"><a id="p1_183"></a>183    The Matriarch also recounted to Dr FN about feeling depressed and anxious about the document she was made to execute in July 2017. The Matriarch’s distress precipitated family WhatsApp conversations which were at least in part, put into evidence, culminating in the 8<sup>th</sup> Daughter getting the Defendant’s agreement not to proceed with the transfer of the Matriarch’s share of 2 JM, purportedly given how distraught she was.</p> <p class="Judg-1"><a id="p1_184"></a>184    In support of the Defendant’s assertion that the Matriarch had the requisite mental capacity, he had provided videos of conversations that the Matriarch had with a waitress sometime around this period. However, this did nothing to show the Matriarch’s testamentary capacity or whether she was in a moment of lucidity when the 3<sup>rd</sup> Will was executed. It should be noted that Dr FN did not base his assessment on the Matriarch being unable to communicate, but on the basis that she was unable to understand, retain and weigh information relevant for decision-making. The Matriarch, appearing to recall the Defendant’s birthday to provide him with a Red Packet also does little to prove that she had the requisite mental capacity, particularly with regard testamentary capacity to execute the 3<sup>rd</sup> Will.</p> <p class="Judg-1"><a id="p1_185"></a>185    In the circumstances, I found that the Defendant had not discharged his burden of showing that the Matriarch had testamentary capacity to execute the 3<sup>rd</sup> Will, and consequently could not understand and approve of the contents of the Will.</p> <p class="Judg-1"><a id="p1_186"></a>186    Having made this determination, it was unnecessary for me to delve further as to whether there was undue influence, but I will note that at this stage, the Matriarch had noticeable memory issues and breathing difficulties, and from a purported discussion between the Defendant and the Matriarch on 15 June 2017, the Will was rapidly prepared for execution on 19 June 2017, without any formal mental capacity assessment.</p> <p class="Judg-Heading-1">Validity of the 2<sup>nd</sup> Will</p> <p class="Judg-1"><a id="p1_187"></a>187    Moving on to the circumstances surrounding the execution of the 2<sup>nd</sup> Will, while the Plaintiff is correct that pursuant to <b><em>Rajaratnam Kumar (alias Rajaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2010] SGHC 0164.xml')">[2010] SGHC 164</a></b> at [40], [57] and [58], the lack of an assessment for a testator’s testamentary capacity by an appropriate medical practitioner is not fatal as it is the function of the court to decide whether the testator had testamentary capacity at the time of the wills’ execution. In this case, the Matriarch suffered from dementia, and even the Plaintiff’s expert opined that all decisions made in the preceding year from July 2017 would be questionable, there was also a significant question about her testamentary capacity when any will was executed around that time.</p> <p class="Judg-1"><a id="p1_188"></a>188    The Plaintiff claimed that the consultations done on the Matriarch in June to September 2016 (i.e. about 7 months prior) were contemporaneous evidence on the Matriarch’s mental capacity just prior to 7 April 2017 when the 2<sup>nd</sup> Will was executed, and at the same time, the Plaintiff claimed that the Matriarch’s mental capacity had changed so drastically in the 2 months after that, such that by the time she executed the 3<sup>rd</sup> Will, she had lacked the requisite mental capacity.</p> <p class="Judg-1"><a id="p1_189"></a>189    As early as 3 February 2017, it was raised by St Luke’s Eldercare that the Matriarch may have mental capacity issues. Subsequently, The Matriarch scored 14/28 for her MMSE on 28 March 2017 with the Hua Mei Clinic, which was an indication of concern over mental capacity, even if the Dr did not formalize an opinion on her mental capacity and instead recommended a full assessment by psychiatrist Dr FN. It bears emphasizing that 14/28 is not a passing grade for an MMSE. Generally, a score below 25/30, or in this case, 23/28 (given the 2 excluded questions, which may not have been applicable to the Matriarch’s circumstances) would be abnormal.</p> <p class="Judg-1"><a id="p1_190"></a>190    Knowing at least that there was a question on the Matriarch’s mental capacity, the Plaintiff still went ahead with making arrangements for the Matriarch’s execution of the 2<sup>nd</sup> Will.</p> <p class="Judg-1"><a id="p1_191"></a>191    In fact, even though the Plaintiff has submitted Dr FN as his expert, I failed to see how Dr FN’s assessment of the Matriarch’s mental capacity helped the Plaintiff’s case. Dr FN’s opinion was that the Matriarch suffered from vascular dementia, which presents itself with a more dramatic decline in cognition over time than the more common Alzheimer’s dementia, which is more gradual over years. He opined that her dementia would have been present for at least a year prior to the assessment and that this was a conservative estimate. Hence, she would not have the capacity to make a will in April 2017 or June 2017, unless she was in a moment of lucidity and that evidence was presented to support this.</p> <p class="Judg-1"><a id="p1_192"></a>192    In <b><em>UWF and another v UWH and another </em></b><b><a class="pagecontent" href="javascript:viewPageContent('/SLR/26192-SSP.xml')">[2021] 4 SLR 314</a></b> at [213] and [214], the Court held that “<em>If during the period prior to the execution of his or her will the testator was shown to have suffered from an incapacitating mental illness prior to the execution of the will that resulted in a loss of testamentary capacity, a presumption would arise that the testator continued to lack testamentary capacity. This presumption might be rebutted by the person propounding the will by establishing that the testator made the will during a lucid interval or after recovery from the illness, and the element of whether the testator had the mental capacity to understand the nature of the will and its consequences was not necessarily determined by the existence of some form of mental impairment.</em>”</p> <p class="Judg-1"><a id="p1_193"></a>193    However, there is no evidence to show that the Matriarch was in a lucid episode as part of the Plaintiffs’ alternative argument. Both of the employees of FortisWills, Estate Planners 1 and 2, who had witnessed the execution of the 2<sup>nd</sup> Will, were non-lawyers but estate planners, and were not particularly learned on the relevant law on testamentary capacity. While there is no requirement that wills have to be drafted by lawyers or witnessed by them, lawyers who specialize in this area would be more likely to be equipped and qualified to advise on this area of law.</p> <p class="Judg-1"><a id="p1_194"></a>194    I would agree with the Defendant that given what they had stated during their testimony, there was concern over whether the Estate Planners 1 and 2 were equipped to assess the situation or that they were even highlighted to a potential issue of the Matriarch’s mental capacity:</p> <p class="Judg-2"><a id="p1_194-p2_a"></a>(a)     even though the Matriarch was 87 years old, it was not asked if any mental capacity assessment has been conducted recently;</p> <p class="Judg-2"><a id="p1_194-p2_b"></a>(b)     both Estate Planners 1 and 2 had not been highlighted to the concerns by the Matriarch’s doctors that a further formal mental capacity test needed to be performed;</p> <p class="Judg-2"><a id="p1_194-p2_c"></a>(c)     they did not appear to apply any additionally safeguards other than a general will template checklist. Estate Planner 1 admitted that this case was, to her, a run-of-the-mill ordinary case, not meriting much attention;</p> <p class="Judg-2"><a id="p1_194-p2_d"></a>(d)     even though the Plaintiff claimed not to have been present, Estate Planner 1 recalled that she allowed for the Plaintiff to be present during the explanation and the execution of the 2<sup>nd</sup> Will, as she thought it would be helpful for The Matriarch;</p> <p class="Judg-2"><a id="p1_194-p2_e"></a>(e)     Estate Planner 1 was unaware of what an MMSE score was, suggesting that she was not particularly well-read in the literature on issues of mental capacity;</p> <p class="Judg-2"><a id="p1_194-p2_f"></a>(f)     Estate Planner 1 added that if she had known of the recommendation for an assessment to be made by a psychiatrist, she would not have proceeded with the Matriarch’s execution of the 2<sup>nd</sup> Will;</p> <p class="Judg-2"><a id="p1_194-p2_g"></a>(g)     Estate Planner 1 actually recounted that the Matriarch provided incorrect information on the number of children she had, but Estate Planner 1 was unaware that this was incorrect and the Plaintiff did not correct such information or tell her that such answers were incorrect. Estate Planner 1 opined that if she had been told that the Matriarch had 14 children instead of just 2, and all assets were provided to only 1 child, she would be more circumspect; and</p> <p class="Judg-2"><a id="p1_194-p2_h"></a>(h)     Estate Planner 1 did not request for the Plaintiff to wait outside separately during her conversations with the Matriarch, which appears to highlight that she may not have been concerned on any potential undue influence issues.</p> <p class="Judg-1"><a id="p1_195"></a>195    The Plaintiff claimed the Matriarch had the ability to recall key facts about executing the 2<sup>nd</sup> Will to Dr JBL, but all she recalled was meeting 2 ladies in a tall building, to thumbprint some document about her house. This did not prove that she was lucid and knew and understood the contents of the 2<sup>nd</sup> Will when it was executed. However, the evidence indicates the exact opposite. I would not say that recalling putting her thumbprint on a document for her house before 2 ladies in a tall building were the “<em>key facts</em>” of the 2<sup>nd</sup> Will. A crucial aspect of this was that the Matriarch did not appear to be any recollection that what she had executed was a will or had the effect of a will. The evidence by Dr JBL and Mr DK was that the Matriarch had recounted that she did not know what she had signed relating to 2 JM.</p> <p class="Judg-1"><a id="p1_196"></a>196    The Defendant further reported that the Matriarch expressed uneasiness after signing the documents. Even though she only discussed the matter with him on 15 June 2017, about 2 months after the execution of the 2<sup>nd</sup> Will, I did not find this to be an inordinate delay to suggest that the Matriarch was deliberately concealing this from the Defendant as argued by the Plaintiff. If she was deliberately concealing this, there would be no reason why she would then volunteer this information to the Defendant independently.</p> <p class="Judg-1"><a id="p1_197"></a>197    The Defendant had also provided a recording to evidence the Matriarch’s concern over what she had signed. In the recording, the Defendant had asked the Matriarch in Hokkien about how long it had been since he (referring to the Defendant) had taken her to the building to sign that day. The Matriarch had replied that “<em>Ah Chek</em>” just wanted to do it and he said that she must sign to do it. The Defendant’s case was that this imputed that the Plaintiff had made her execute the document. However, the Plaintiff questioned whether “<em>Ah Chek</em>” was referring to the Plaintiff or whether it could have referred to someone else like the Patriarch. Based on the evidence of the 3<sup>rd</sup> Daughter, the reference to “<em>Ah Chek</em>” in this recording was unlikely to be her late husband, the Patriarch, as he was never referred to as “<em>Ah Chek</em>”.</p> <p class="Judg-1"><a id="p1_198"></a>198    The 2<sup>nd</sup> Will was only revealed to have been executed to the rest of the family on or about 5 July 2017 and the terms of the 2<sup>nd</sup> Will were significantly different from the 1<sup>st</sup> Will and with a more complex mechanism for the Plaintiff’s 1<sup>st</sup> Son to inherit the Matriarch’s half share of 2 JM if the Plaintiff were to predecease the Matriarch. In this regard, the Plaintiff had to explain to Estate Planner 1 who the Plaintiff’s 1<sup>st</sup> Son was to the Matriarch. The Matriarch was unable to volunteer such information independently during that session with Estate Planner 1. The 2<sup>nd</sup> Will was also dissimilar to the 2 draft wills proposed to the Matriarch by the 8<sup>th</sup> Daughter, which the Matriarch had rejected.</p> <p class="Judg-1"><a id="p1_199"></a>199    The 8<sup>th</sup> Daughter, on the witness stand, questioned as to why would the Matriarch give such a significant bequest to the Plaintiff’s 1<sup>st</sup> Son, who was only 1 out of 20 grandchildren that the Matriarch had and whom she opined was not the Matriarch’s favourite grandchild.</p> <p class="Judg-1"><a id="p1_200"></a>200    In the circumstances, I found that the Plaintiff had failed to discharge his burden of proving that the Matriarch had testamentary capacity to execute the 2<sup>nd</sup> Will, either by way of a continuing mental capacity or there being a period of lucidity.</p> <p class="Judg-1"><a id="p1_201"></a>201    For completeness, even though not specifically pleaded, the Defendant alleged that there was also undue influence by the Plaintiff resulting in the execution of the 2<sup>nd</sup> Will. Given that I had found that the Matriarch, did not have the requisite testamentary capacity, I did not need to go into such further arguments, or even need to consider whether the Defendant was at liberty to argue this when it was not in the Defendant’s pleadings.</p> <p class="Judg-1"><a id="p1_202"></a>202    However, it is of particular note, that there were suspicious circumstances surrounding the Estate Planners 1’s recollection that the Plaintiff was seated with the Matriarch during the explanation and execution of the 2<sup>nd</sup> Will and that the Plaintiff having obtained an indication from the Matriarch’s doctors that a formal mental capacity assessment had to be done, went ahead with the execution of the 2<sup>nd</sup> Will without such assessment and the terms were very favourable to him and his 1<sup>st</sup> son, and that it had to be explained by the Defendant to Estate Planner 1 who the Plaintiff’s 1<sup>st</sup> Son was for why he was being named in this 2<sup>nd</sup> Will as a successor beneficiary. There was also incorrect information provided by the Matriarch to Estate Planner 1, about the Matriarch’s Children and grandchildren, which the Defendant did not correct to the estate planner, even though he must have known it was incorrect. Estate Planner 1 did not even know the answers given by the Matriarch were incorrect until she was placed on cross-examination in the trial.</p> <p class="Judg-1"><a id="p1_203"></a>203    Additionally, even though there was a lawyer from FortisLaw who certified the Matriarch’s LPA on that same day, this lawyer was not called as a witness, even after I had highlighted this to parties. No explanation was provided as to whether this lawyer refused to participate as a witness, or whether this was a decision made by the Defendant not to call this person, even though this person must have made an assessment of P’s mental capacity to certify on the LPA.</p> <p class="Judg-1"><a id="p1_204"></a>204    Having determined the 3<sup>rd</sup> and 2<sup>nd</sup> Will to be invalid, I turned next to the validity of the 1<sup>st</sup> Will.</p> <p class="Judg-Heading-1">Validity of the 1<sup>st</sup> Will</p> <p class="Judg-Heading-3">The Matriarch’s Testamentary Capacity &amp; Knowledge &amp; Approval of the contents of the 1<sup>st</sup> Will</p> <p class="Judg-1"><a id="p1_205"></a>205    The 1<sup>st</sup> Will was executed in 2005, 12 years before the 2<sup>nd</sup> Will, and long before the Matriarch had began suffering from dementia.</p> <p class="Judg-1"><a id="p1_206"></a>206    There were no allegations that the Matriarch lacked testamentary capacity, hence, the focus was on whether the Matriarch understood and approved of the contents of the 1<sup>st</sup> Will or whether there was any undue influence applied on the Matriarch by the Defendant.</p> <p class="Judg-1"><a id="p1_207"></a>207    Pursuant to <em>Muriel Chee</em> at [55] to [56], under ordinary circumstances, the reading of a will to a testator not suffering from mental infirmity would be sufficient evidence of his/her understanding or knowledge of the contents. This general principle would not apply to a situation where the testator might not have full understanding due to the onset of dementia. Given that the Matriarch had testamentary capacity, the question would be whether there were suspicious circumstances, to prevent the burden of prove shifting from the propounder to the objector.</p> <p class="Judg-1"><a id="p1_208"></a>208    As highlighted in [46] of <em>Muriel Chee</em>, an oft-cited example of suspicious circumstances is where a will was prepared by a person who takes a substantial benefit under it, or who has procured it execution, such as by suggesting the terms to the testator or instructing a solicitor to draft the will. It had been argued that such suspicious circumstances existed with regard to the execution of the 1<sup>st</sup> Will. It is without a doubt that the Defendant stood to gain substantially from the 1<sup>st</sup> Will, being the beneficiary of the residuary of the estate after the gifts of S$5,000 each to the 7 daughters, i.e. the 4<sup>th</sup> to 10<sup>th</sup> Daughters.</p> <p class="Judg-1"><a id="p1_209"></a>209    While the Defendant recalled giving instructions to Mr CJH and then passing the phone over to the Matriarch to speak with Mr CJH, Mr CJH did not have any recollection of speaking to the Matriarch prior to meeting her at the Defendant’s home, which he also presumed to be the Matriarch’s home, for the execution of the 1<sup>st</sup> Will. But then again, Mr CJH also did not have a clear recollection of speaking with the Defendant for the instructions but presumed that he did for the preparation of the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_210"></a>210    There has been evidence that Mr CJH had read out the contents of the 1<sup>st</sup> Will to the Matriarch, which was uncontroverted by the Plaintiff. The indication was that this was recounted in Mandarin and Mr CJH testified that the Matriarch appeared to understand and responded to his questioning in Mandarin. It is noted that the Matriarch could have been more comfortable in Hokkien as testified by her family members and as seen in the subsequent conversations with Mr CJH, Dr JBL, Mr Kang, Dr NBY, Dr FN, Estate Planner 1 and Estate Planner 2. The Defendant argued that while the Matriarch may have been more comfortable with Hokkien, she still watched mandarin television dramas and had conversational mandarin capabilities. Mr CJH further testified that he had ascertained that the Matriarch was able to understand Mandarin and she agreed to the explanations of the contents of the 1<sup>st</sup> Will to be made in Mandarin. There is no reason to disbelieve this account and that the Matriarch accepted the explanations being made in Mandarin.</p> <p class="Judg-1"><a id="p1_211"></a>211    I take into account that Mr CJH testified that, in the absence of the Defendant, he explained the consequences of making a will and what would be the result if no will was made and that intestacy rules would apply. Mr CJH further testified that he explained to the Matriarch the meaning of “<em>residue of the estate</em>” and that this would include her share of the house at 2 JM. Mr CJH recalled that the Matriarch appeared happy at the Defendant’s care for her and that he explained that she could revoke her will at any time, by the making of another will, or tearing it up, throwing it away or burning it.</p> <p class="Judg-1"><a id="p1_212"></a>212    While the Matriarch was illiterate, she had been described by her children as being capable and smart:</p> <p class="Judg-2"><a id="p1_212-p2_a"></a>(a)     The 3<sup>rd</sup> Daughter described her as having an “<em>independent mind</em>” and that she was “<em>business-minded</em>”;</p> <p class="Judg-2"><a id="p1_212-p2_b"></a>(b)     The 2<sup>nd</sup> Daughter described her as “<em>smart</em>” and “<em>sharp</em>”, had a “<em>strong sense of survival</em>”, a “<em>strong sense of self-independence</em>”, a “<em>clear independent mind</em>”, “<em>strong will and amazing spirit</em>” and that it was “<em>hard to persuade her after she had made up her mind</em>”;</p> <p class="Judg-2"><a id="p1_212-p2_c"></a>(c)     The 8<sup>th</sup> Daughter described her as not being a simpleton, that she was smart, had a nimble mind, that she had good business sense and understanding of human interactions from her interactions with customers. Moreover, she knew how to “<em>play</em>” her 2 sons for her own financial security.</p> <p class="Judg-1"><a id="p1_213"></a>213    Given the explanation by Mr CJH and the apparent acumen of the Matriarch recounted by her family, if she was unable to understand the mandarin explanations, she would not have just accepted it, and would have broached this problem with Mr CJH. In the circumstances, I find that there was sufficient evidence that the Matriarch had knowledge of and approved of the contents of the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_214"></a>214    Furthermore, evidence was provided by the 8<sup>th</sup> Daughter that the Matriarch had been approached about changing her will in February 2007 and March 2013, with 2 drafts presented to her, she decided not to go ahead with these draft wills. The 8<sup>th</sup> Daughter’s belief was that she wanted to keep in line with the Patriarch’s thinking that inheritance of 2 JM would only be going to the sons, and not the daughters.</p> <p class="Judg-1"><a id="p1_215"></a>215    Even though some of the siblings claimed that the Matriarch was superstitious and would never have executed a Will, such stated beliefs without any further supporting documentation were insufficient to prove that the Matriarch was so superstitious that she would never make a will.</p> <p class="Judg-1"><a id="p1_216"></a>216    The evidence of 3<sup>rd</sup> Son further indicated that the Matriarch had told him that she knew she could change her 1<sup>st</sup> Will if she wanted to, and when it was broached with her on 2 occasions to take action to change the 1<sup>st</sup> Will, she did not take it up to execute a new Will.</p> <p class="Judg-1"><a id="p1_217"></a>217    Such conduct after the execution after the 1<sup>st</sup> Will further corroborate that she had knowledge of and approved of the contents of the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_218"></a>218    In any event, while the Plaintiff’s belatedly amended the Statement of Claim to include the claim that the Deceased did not have knowledge and did not understand and approve of the contents of the 1<sup>st</sup> Will, the arguments in this regard were largely not addressed in the submissions, but instead the Plaintiff’s submission focused on there being undue influence being applied by the Defendant on the Matriarch.</p> <p class="Judg-Heading-3">Purported Undue Influence</p> <p class="Judg-1"><a id="p1_219"></a>219    Having dealt with the 1<sup>st</sup> 2 limbs of the test in <em>Muriel Chee</em>, we move on to the 3<sup>rd</sup> limb, which the Plaintiff has the burden of proving, i.e. purported undue influence.</p> <p class="Judg-1"><a id="p1_220"></a>220    While Mr CJH was under the impression that the Matriarch was executing the 1<sup>st</sup> Will in her home, she was actually in the Defendant’s home. The Plaintiff alleged that the Matriarch was essentially being held hostage there, as she would have to rely on the Defendant to send her home. The Plaintiff alleged that the Defendant was belligerent and that there was a “<em>threat of physical confinement in addition to the mental distress and fear of facing the Defendant’s wrath</em>”.</p> <p class="Judg-1"><a id="p1_221"></a>221    However, this allegation was nothing more than conjecture, unsupported by any corroborating evidence. There was no indication that the Matriarch felt like she was trapped there or that she would not be able to return home on her own or by calling on one of her other children to assist her if the Defendant would not send her home. The evidence seemed to suggest that the Matriarch was a resourceful woman who prided herself on a level of independence such as her going by herself to the market to sell her wares, even when she was in a wheelchair. As opposed to the 3<sup>rd</sup> Will or the Transfer Instrument, where the Matriarch made threatened to commit suicide after the execution of, or the 2<sup>nd</sup> Will, where the Matriarch raised concerns to the Defendant, there was no evidence that the Matriarch raised any concern after the execution of the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_222"></a>222    The Plaintiff argued that the Matriarch was in a weakened physical and mental condition when she made her 1<sup>st</sup> Will, and less influence was required in such a state, so she gave in to the Defendant’s pestering her about her Will. Additionally, it was argued that the Court should look to the circumstantial evidence as opposed to direct evidence of such purported influence, given the nature of undue influence.</p> <p class="Judg-1"><a id="p1_223"></a>223    However, there was no evidence of what purported weakened state that the Matriarch was in. At such time, there was no spectre of dementia, and while she had some mobility issues, she was not considered to be weak. In fact, she was still fairly social and independent. She was not in a state of emotional distress from the passing of her husband as that was many years prior. So, I failed to see what purported weakened mental or physical state she was in at this material time.</p> <p class="Judg-1"><a id="p1_224"></a>224    The whole premise of the Plaintiff’s allegation of undue influence being exerted by the Defendant stemmed from the argument that the Matriarch was financially dependent on her children to sustain her living expenses after the passing away of her husband. The Plaintiff’s case relied strongly on the testimony of the 3<sup>rd</sup> Son. However, as mentioned earlier, the credibility of the 3<sup>rd</sup> Son had been called into serious question.</p> <p class="Judg-1"><a id="p1_225"></a>225    The 3<sup>rd</sup> Son’s recollection of the 2 purported incidents of heated discussion between the Matriarch and the Defendant were spotty at best. He claimed to have direct information about these events with descriptions of actions taken by parties, indicating he was in the room with them, but it turned out that he had only eavesdropped about what happened from next door and was not a direct eyewitness. He had some details about a conversation around 1995 but not much about the conversation that occurred closer to 2005 before the making of the 1<sup>st</sup> Will. The 3<sup>rd</sup> Son, is at best, vague about the recollection of the details of such a conversation and also when this conversation had occurred. Though it was not in his AEIC, the 3<sup>rd</sup> Son suddenly recalled the purported 2<sup>nd</sup> argument on the witness stand, where a glass or a cup of water was thrown by the Defendant in the direction of the Matriarch and he had seen this because he was peeping in from his home. In the 3<sup>rd</sup> Son’s AEIC, which was also filed belatedly, he claimed that sometime close to 2005 the Defendant had told the Matriarch that he would look after her if she agreed to will her share of the property to him. However, it was revealed on the witness stand that he had not witnessed any such a conversation but merely it was his evidence that the Matriarch had recounted to him that the Defendant had only stated whatever you need you can get from me.</p> <p class="Judg-1"><a id="p1_226"></a>226    All of the siblings who took the stand recounted that the 3<sup>rd</sup> Son had told them that he witnessed such a conversation, but 3<sup>rd</sup> Son emphatically claimed he did not tell any of his siblings such things.</p> <p class="Judg-1"><a id="p1_227"></a>227    The 3<sup>rd</sup> Son did however recount that he knew that the Matriarch was informed that if she did not like the 1<sup>st</sup> Will, that she could change it, which is correct of any will, that a new will could be executed to revoke the old will and put in new terms.</p> <p class="Judg-1"><a id="p1_228"></a>228    Even if the 1<sup>st</sup> Will was done in exchange for monthly allowances, which the Defendant claimed was merely speculation, this did not equate to there being undue influence applied on the Matriarch. I had specifically asked for the Plaintiff’s Counsel to submit on this during the trial and when this issue was left unaddressed in the Closing Arguments, I further directed them to address this very point in the Supplementary Submissions. For Parties’ Supplementary Submissions, while the Plaintiff merely went to provide the law on the general basis in law on undue influence in probate cases, the Plaintiff did not address the question head on, whereas the Defendant did attempt to answer the question posed.</p> <p class="Judg-1"><a id="p1_229"></a>229    The Plaintiff’s argument that “<em>it is quite possible that the Defendant had sprung the 1<sup>st</sup> Will and his offer to give the Matriarch a monthly allowance on the Matriarch on 22 March 2005 itself after the Matriarch was brought to his house</em>” and that she “<em>could not call anyone for assistance or delay the execution of the 1<sup>st</sup> Will</em>” was weak, and unsupported. There was also no corroboration of the Matriarch, having complained about this after the fact.</p> <p class="Judg-1"><a id="p1_230"></a>230    To make out his case, it was necessary for the Plaintiff to prove that the Matriarch had been coerced and not just persuaded to make the 1<sup>st</sup> Will. If the Matriarch felt that getting some financial security from the Defendant was sufficient reason to will away the residuary of her estate to him, that would not amount to undue influence. The point is that the pressure has to be such that it overwhelmed the Matriarch’s volition, and that has not been proven. The Matriarch was at liberty to strike whatever bargain she deemed fit in exchange for her bequeathing her estate to a certain person.</p> <p class="Judg-1"><a id="p1_231"></a>231    I will further note, that it was the evidence of the Plaintiff and his sibling whom he called as witnesses that they too contributed financially to the Matriarch, albeit not as regularly and she earned some money independently by selling her wares in the market. Hence, there was no evidence that the Matriarch was so desperate for money, which she could only obtain from the Defendant, such that her own volition was overwhelmed. The Matriarch could have easily sought resources from other children or struck up bargains with her other children, but she did not.</p> <p class="Judg-1"><a id="p1_232"></a>232    The further fact that the Matriarch had the opportunity to revise the 1<sup>st</sup> Will, on 2 occasions based on the testimony of the 8<sup>th</sup> Daughter, where she had proposed draft wills to the Matriarch while she still had testamentary capacity, but the Matriarch had rejected these revisions, corroborates that the 1<sup>st</sup> Will was not procured by coercion.</p> <p class="Judg-1"><a id="p1_233"></a>233    Any allegations that the Defendant treated the Matriarch better after the 1<sup>st</sup> Will was executed and that monthly allowances were more regular afterwards, are inconsequential to any allegations of coercion.</p> <p class="Judg-1"><a id="p1_234"></a>234    The Plaintiff has failed to provide sufficient evidence to discharge his burden to prove that the Defendant had applied undue influence on the Matriarch for her to execute the 1<sup>st</sup> Will, and that there was sufficient evidence that the Matriarch had knowledge of and approved of the contents of the 1<sup>st</sup> Will and as a free agent decided to make the bequests in the 1<sup>st</sup> Will.</p> <p class="Judg-1"><a id="p1_235"></a>235    In the circumstances, I found the 1<sup>st</sup> Will to be valid and effective.</p> <p class="Judg-Heading-1">Costs</p> <p class="Judg-1"><a id="p1_236"></a>236    Upon parties’ request, I provided some time for parties to discuss on reaching an agreement on costs. However, after half an hour, parties returned to state that they were unable to reach a consensus on costs.</p> <p class="Judg-1"><a id="p1_237"></a>237    The Plaintiff argued that pursuant to Rule 855(1) and (2) of the FJR that the Court should make no order for the costs for the Plaintiff opposing a will and that the costs should be paid out of the Estate or in the alternative, that each party should bear their own costs. The Defendant objected to this and pointed out that there was not just 1 will that was challenged but 3 separate wills and that the Plaintiff went beyond the scope of the rule for the Court not to order costs against the Plaintiff.</p> <p class="Judg-1"><a id="p1_238"></a>238    Rule 855 of the FJR provides that:</p> <p class="Judg-Quote-1"> <b><em>Restriction of discretion to order costs</em></b> </p> <p class="Judg-Quote-1">855.—(1)    Despite anything in this Division or under any written law, <em>unless the Court is of the opinion that there was no reasonable ground for opposing the will, no order shall be made for the costs of the other side to be paid by the party opposing a will</em> in a probate action who has <em>given notice with his defence to the party setting up the will</em> that he —</p> <p class="Judg-QuoteList-2">(a)     <em>merely insists upon the will being proved in solemn form of law</em>; and</p> <p class="Judg-QuoteList-2">(b)     <em>only intends to cross-examine the witnesses produced in support of the will</em>.</p> <p class="Judg-Quote-1">(2)    Where a person is or has been a party to any proceedings in the <em>capacity of trustee, personal representative or mortgagee</em>, he shall, unless the Court otherwise orders, be <em>entitled to the costs of those proceedings</em>, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative or out of the mortgaged property, as the case may be.</p> <p class="Judg-Quote-1">(3)    The Court may otherwise order, under paragraph (2), only on the ground that —</p> <p class="Judg-QuoteList-2">(a)    the trustee, personal representative or mortgagee has acted unreasonably; or</p> <p class="Judg-QuoteList-2">(b)    where the fund is held by the trustee or personal representative, the trustee or personal representative has in substance acted for his own benefit rather than for the benefit of the fund.</p> <p class="Judg-Quote-1">[emphasis added]</p> <p class="Judg-1"><a id="p1_239"></a>239    The Plaintiff further relied on <em>G Raman, Probate and Administration law in Singapore and Malaysia</em>, 4<sup>th</sup> Edition (2018), Lexis Nexis at [10.51] to [10.53] that:</p> <p class="Judg-Quote-1"> <b><em>E. Costs</em></b> </p> <p class="Judg-Quote-1">[10.51]    Ordinarily, costs should follow the event. However, in probate actions, there is a permutation to this rule.</p> <p class="Judg-Quote-1">[10.52]    Costs in probate actions are based strictly on the justification or reasonableness of bringing such actions.</p> <p class="Judg-Quote-2">Executors and administrators, in the absence of gross misconduct, are entitled to their full costs of the suit as between solicitor and client out of the estate, properly incurred by them. The general principle is that the estate must bear the expenses incidental to the proper performance of the duties of the personal representatives as personal representatives [<em>Tristan and Coote’s</em> (30<sup>th</sup> ed, 2006), P 747].</p> <p class="Judg-Quote-1">[10.53]    Even where the defendant has been unsuccessful in opposing probate, costs may be ordered to be paid out to him from the estate. In a case where the defendants opposed the granting of probate alleging unsoundness of mind of the testator at the time he made his will, costs were ordered to be paid out to them from the estate as the court held that there was a reasonable case for inquiry [<em>re Angulia deceased</em> <a class="pagecontent" href="javascript:viewPageContent('/MLJ/31746-M.xml')">[1939] MLJ 100</a>; cc also Rules of Court 2004 (Singapore), Rules of Court 2012 (Malaysia(, O 59 r 6.] It is only in cases where the party has been unreasonable that he will be ordered to pay costs himself.</p> <p class="Judg-1"><a id="p1_240"></a>240    Additionally, the Plaintiff raised the High Court case of <em>WHR &amp; Anor v WHT &amp; Ors</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/30018-SSP.xml')">[2023] SGHCF 32</a> (“<b><em>WHR v WHT</em></b>”), where parties had gone to trial to contest the validity of a will executed in 1999 and a codicil executed in 2008. Justice Choo Han Teck held that the will and the codicil has been validly executed and declare that they have been proven in solemn form and held at [30] that:</p> <p class="Judg-Quote-1">30    Under r 855 of the Family Justice Rules 2014, no order as to costs should be made unless the Court finds that the opposition to a testamentary instrument was without reasonable grounds. In the light of the suspicious circumstance that I found above, including the delay of seven years, I will not say that that there was no reasonable ground to oppose the Codicil (although I think it is quite clear there was no reasonable ground to oppose the Will). However, as trial unfolded, it became clear from the cross-examination of counsel for the Opposing Defendants that they were unable to find a reason to oppose the Codicil. Nonetheless, on the whole, I think that it will be fair to order that each party bears his own costs.</p> <p class="Judg-1"><a id=""></a>On this basis, the Plaintiff claimed that there should be no order as to costs unless his opposition of the testamentary instrument was without reasonable grounds.</p> <p class="Judg-1"><a id="p1_241"></a>241    However, Rule 855(1) of the FJR is only applicable when the person opposing the will provided notice in the defence that this person is merely insisting upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will. This was the factual circumstances of <em>WHR v WHT</em> where it was noted that the opposing defendants only cross-examined and called no witnesses of their own. In this case, the Plaintiff went far beyond that and actually pursued a claim that the 2<sup>nd</sup> Will was valid and the 1<sup>st</sup> and 3<sup>rd</sup> Wills were invalid and called 8 witnesses in support of his case and to defend against the Defendant’s counterclaim.</p> <p class="Judg-1"><a id="p1_242"></a>242    Having delivered the decision that Rule 855 was inapplicable in this case, I sought parties to submit on the quantum of costs.</p> <p class="Judg-1"><a id="p1_243"></a>243    The Defendant argued that by applying the rates stated in Appendix G – Guidelines for Party-and-Part Costs Awards in the Supreme Court of Singapore, of the Supreme Court Practice Directions 2021 (“<b>Appendix G</b>”), the costs for the hearing amounted to S$337,000 and disbursements of S$49,097.10 (i.e. an aggregate of S$386,097.10). The Defendant was of the opinion that they were successful on 2/3 of the case and rounded that up to 70% and stated that the Defendant should be entitled to 70% of the hearing costs amounting to S$235,900 and full disbursements of S$49,097.10 (i.e. an aggregate of S$284,997.10). I had highlighted that the disbursements for the experts and witnesses largely related to the 3<sup>rd</sup> Will, which they were unsuccessful on, as such, I asked whether they were still insisting on full disbursements. The Defendant left that decision to the discretion of the Court.</p> <p class="Judg-1"><a id="p1_244"></a>244    The Plaintiff countered by pointing out that Appendix G were only a guideline and that it was on a Supreme Court scale which is higher than a Family Court scale. The Plaintiff claimed that the Defendant should bear their own costs in relation to the 2<sup>nd</sup> and 3<sup>rd</sup> Will. Additionally, the Plaintiff sought costs for and disbursements for having to initiate proceedings against the Defendant’s reliance on the 3<sup>rd</sup> Will, which was found to be invalid. By the time that parties had completed their oral submissions on costs, it had already crossed the close of the work-day. Hence, I subsequently sent a Registrar’s Notice on the next day to detail my decision on costs, which is set out in the subsequent paragraph.</p> <p class="Judg-1"><a id="p1_245"></a>245    Having considered parties’ arguments on costs, I ordered that costs to be fixed at S$78,000.00 inclusive of disbursements to be paid by the Plaintiff to the Defendant forthwith. The breakdown of this is set out below:</p> <p class="Judg-2"><a id="p1_245-p2_a"></a>(a)     Based on the guidance in Appendix G of the daily tariff of S$6-16,000 per day for equity and trust, which was a comparable subject matter, given the complexity of the matter, the daily tariff was fixed at 10,000, i.e. S$10,000 x 8 days of trial = S$80,000;</p> <p class="Judg-2"><a id="p1_245-p2_b"></a>(b)     Based on the guidance in Appendix G for pre-trial, with a range of S$25-90,000, the sum of S$60,000 was determined to be a reasonable sum;</p> <p class="Judg-2"><a id="p1_245-p2_c"></a>(c)     Based on the guidance in Appendix G for post-trial, with a range of up to S$35,000, the sum of S$25,000 was deemed to be a reasonable sum;</p> <p class="Judg-2"><a id="p1_245-p2_d"></a>(d)     That was an aggregate of S$165,000;</p> <p class="Judg-2"><a id="p1_245-p2_e"></a>(e)     However, given that this matter was heard at Family Court level instead of Family Division of the High Court level, as the quantum of the estate being about S$3.5 million, the amount was adjusted to 2/3 of the original, i.e. S$110,000;</p> <p class="Judg-2"><a id="p1_245-p2_f"></a>(f)     Additionally, the Defendant was only successful in his claim that the 1<sup>st</sup> Will was valid and the 2<sup>nd</sup> Will was invalid, and was unsuccessful in proving that the 3<sup>rd</sup> Will was valid. In the circumstances, the Defendant should only be awarded 2/3 of such costs, i.e. S$73,333.33;</p> <p class="Judg-2"><a id="p1_245-p2_g"></a>(g)     For disbursements of filing fees, given that the Defendant was only 2/3 successful, only 2/3 of the disbursements should be allowed, i.e. 2/3 x S$2,792.20 = S$1,861.47;</p> <p class="Judg-2"><a id="p1_245-p2_h"></a>(h)     For disbursements of witnesses as Dr JBL, Dr NBY, Mr DK and Ms LKK were called for the purposed of propounding the 3<sup>rd</sup> Will, these disbursements were not allowed. For Mr CJH, given that he was called to speak to the validity of the 1<sup>st</sup> and 3<sup>rd</sup> Will, half of his disbursements were allowed, i.e. S$5,535/2 = S$2,767.50; and</p> <p class="Judg-2"><a id="p1_245-p2_i"></a>(i)     That was an aggregate of S$78,000, i.e. S$73,333.33 + S$4,628.97 = S$77,962.30 rounded off.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_246"></a>246    This was not an easy case to decide. There were significant factual and expert evidence to consider, and parties’ positions had to be repeatedly clarified due to omissions or inconsistencies. Ultimately, while the Defendant failed to discharge his burden in proving the 3<sup>rd</sup> Will, the Plaintiff failed more significantly to discharge his burden in proving the 2<sup>nd</sup> Will and to show that the 1<sup>st</sup> Will was procured by undue influence and was thus invalid. While it may have been fairer to allow the ISA to take effect for the distribution of the Matriarch’s estate, the Court is not tasked to step into the shoes of the testator and substitute the testator’s intentions for what the Court may view to be fairer for the family, but the Court’s role is to determine what was the actual will of the testator.</p> <p class="Judg-1"><a id="p1_247"></a>247    It was unfortunate that after the Matriarch’s passing, and perhaps even before that when there were questions about her mental capacity, that this large family had devolved into such distress over the Matriarch’s half share of 2 JM. Through the trial process, it became apparent that family members had taken the opportunity to air a lifetime of grievances. Grievances over how they felt to have been treated by their siblings. Grievances over how they felt slighted by their parents’ favouritism or dated views on only males being eligible to inherit. Irrelevant issues of how the Defendant had managed the Family Business, about the Defendant had not helped out the family even more, about how certain Children felt that 2 JM and the new 4 JM were not properly built when the Defendant had managed their construction, about contentions over the Patriarch’s will, about the Defendant’s involvement in handling an issue with the 2<sup>nd</sup> Daughter’s late husband’s estate, about the Plaintiff not contributing enough and over the Patriarch’s distribution of his estate under his will, just to name a few. Such matters occupied a significant amount of the Court’s time even when parties were reminded to keep testimony relevant to the issues at hand.</p> <p class="Judg-1"><a id="p1_248"></a>248    Admittedly, all parties involved could have behaved better. I would imagine that the Patriarch and the Matriarch would be saddened by the current state of their family. The way that family harmony was disrupted in this case emphasizes the need for us to prepare our families for our passing and further emphasizes the need to treat our family members kindly and with respect. One should not delay on such preparations, and we should all be mindful to treat each other with grace and civility.</p> </div></content></root> 1303

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