fc_judgments_version: 35

This data as json

_id _item _version _commit tags date court case-number title citation url counsel timestamp coram html _item_full_hash
35 27 1 1304 
[
    "PROBATE \u2013 Revocation of Grant \u2013 Non-production of Will \u2013 Handwriting Analysis \u2013 Concurrent Proceedings in Foreign Jurisdiction"
]
 2024-04-30 Family Court FC/S 17/2020 WWE v WWF [2024] SGFC 21 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%2F31442-SSP.xml 
[
    "Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff",
    "Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant."
]
 2024-05-06T16:00:00Z[GMT] Shobha Nair <root><head><title>WWE v WWF</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WWE <em>v</em> WWF </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31442-SSP.xml')">[2024] SGFC 21</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">FC/S 17/2020</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">30 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"> Shobha Nair </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"> Ragbir Singh s/o Ram Singh Bajwa (Bajwa &amp; Co) for the Plaintiff; Thulasidas s/o Rengasamy Suppramaniam (Ling Das &amp; Partners) 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"> WWE — WWF </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">PROBATE</span> – <span style="font-style:italic">Revocation of Grant</span> – <span style="font-style:italic">Non-production of Will</span> – <span style="font-style:italic">Handwriting Analysis</span> – <span style="font-style:italic">Concurrent Proceedings in Foreign Jurisdiction</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">30 April 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Shobha Nair:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1       This case revealed a family whose members found themselves in a legal mire caused by a series of lies and secrets. The plaintiff in this action sought the revocation of a grant of probate issued to the defendant as executor of the estate of their late father. It was the plaintiff’s position that his father never executed the will admitted to probate and that his assets should rightly be governed by the laws of intestacy. The plaintiff also sought the right to apply for letters of administration to distribute the assets in accordance with such laws and called on the defendant to account for the assets that he had distributed in accordance with the will. The defendant emphatically claimed that the will executed in 2012 was valid and he also claimed that this was the second and last of 2 known wills, the first having been executed by the deceased in 1994.</p> <p class="Judg-1"><a id="p1_2"></a>2       Having heard the matter, I dismissed the plaintiff’s claim and allowed the counterclaim which sought a declaration of the validity of the 2012 will of the deceased. I further confirmed the appointment of the defendant as the executor of the will and the order of probate granted by the Family Court in November 2017. The plaintiff appeals against these orders. Although cost submissions were invited, the parties agreed on costs. Separately, the long delay between the time the hearing was concluded, and the issuance of the orders is because parties were attempting to settle the matter between themselves.</p> <p class="Judg-Heading-1">Facts</p> <p class="Judg-1"><a id="p1_3"></a>3       The parties’ father (deceased) passed away in Malaysia on 21 November 2015. He has 5 sons from his marriage. I shall refer to the sons other than the plaintiff and defendant by pseudonyms Aaron, John, and Peter. The deceased’s wife and son Aaron have passed away. The deceased was in a romantic relationship with a Filipina from 1999<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span> and they lived together in both Malaysia and the Philippines. She had informed a Malaysian court that was hearing an application by the plaintiff for letters of administration with respect to the deceased’s Malaysian assets, that she was not married to the deceased. It was only during legal proceedings in Singapore that she informed the Court that she was in fact married to the deceased in the Philippines in 2001. Regardless, all parties accepted that she was in a romantic relationship with the deceased, and they had lived together up to the time of the deceased’s death. Given that the deceased was still married to his wife, I will refer to the deceased’s partner as his mistress. The deceased was financially comfortable and had assets in Singapore, Malaysia and the Philippines.</p> <p class="Judg-1"><a id="p1_4"></a>4       A few days before his passing, the parties to this action found a will executed in 1994 among the deceased’s documents in his home in Malaysia. This will provided 65% of his estate to his wife, 25% to Aaron, 10% to John and only $500 to the plaintiff, the defendant and Peter. This will and other documents were allegedly retained by the plaintiff who lived in Malaysia at the time.<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> After the deceased had passed on, the documents save for this 1994 will was given to Peter who was also present when the documents were first discovered. The 1994 will was not produced in either the Malaysian or Singapore courts. It was the defendant’s position that the plaintiff had failed to produce it as he was not happy with what his father had left him. Peter confirmed that the 1994 will was retained by the plaintiff and was not given to him with the rest of the documents.</p> <p class="Judg-1"><a id="p1_5"></a>5       The plaintiff and his brother John (the latter was serving an imprisonment term at the time of the proceedings before me) successfully obtained letters of administration from a Malaysian court on 17 May 2018 to administer the assets of the deceased in Malaysia. There was no mention of a will executed by the deceased either in 1994 or 2012. It was the defendant’s position that the parties both knew of the existence of a 1994 will and it was the defendant’s position that the plaintiff knew of the 2012 will through communication between counsel for the plaintiff and the defendant. Further, the propriety of the application in Malaysia was questioned on the grounds that the deceased was not domiciled in Malaysia.</p> <p class="Judg-1"><a id="p1_6"></a>6       It was the defendant’s position that the deceased’s mistress informed him only in 2016 that she had found the 2012 will in the Philippines. She said she was told by the deceased prior to his passing to contact the defendant to assist her in making the application for a grant. She claimed that the contact number of the defendant was placed in an envelope containing the will. She then used that number to contact him. The defendant not having seen the will, asked that she send the original to him so that he could get advice on the matter. He also travelled to Kuala Lumpur to meet the witnesses to the execution of the will. He met the lawyer who was the first witness and spoke to the other over the telephone. He was convinced that there was in fact a will executed by the deceased in 2012. He received the original will in December 2016. The documents which showed that the will was couriered was not produced as the mistress claimed that she had lost many things and documents in the natural disasters that plagued the Philippines at the time. The will of 2012 which named the defendant as executor provided the bulk of the deceased’s assets to the deceased’s mistress with token sums to his “estranged wife” and “estranged children”.<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span> The defendant was given a sum of $10 000 as an amount to cover testamentary expenses. In the event the deceased’s mistress were to predecease the deceased, the bulk of his assets would be given to the defendant. When the defendant received the will, he proceeded without the knowledge of the plaintiff, to obtain a grant of probate in Singapore in November 2017.</p> <p class="Judg-1"><a id="p1_7"></a>7       The deceased’s mistress sought to revoke the letters of administration issued by the Malaysian court and I was informed a little before the conclusion of proceedings that the Malaysian court has dismissed the application. In the revocation application by the deceased’s mistress, the will of 2012 was made known. It appears that the report of the same handwriting expert that gave evidence for the matter before me was provided to the court. This report concludes that the signature on the 2012 will was not the signature of the deceased. I am not aware of the grounds of decision of the Malaysian court, and I understand also that the mistress has appealed against the dismissal.</p> <p class="Judg-1"><a id="p1_8"></a>8       Against this factual backdrop, the respective cases of the parties were positioned.</p> <p class="Judg-Heading-1">Is the will executed on 3 August 2012 valid?</p> <p class="Judg-1"><a id="p1_9"></a>9       The central question in these proceedings is whether the will of 3 August 2012 (2012 will) was in fact the will of the deceased. It was the plaintiff’s position that it was not executed by the deceased, but he would not commit to using the word “forgery”. The burden of proving forgery is on the party alleging it (<b><em>Yogambikai Nagarajah </em></b><em>v </em><b><em>Indian Overseas Bank &amp; anor. appeal</em></b>).<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span> The plaintiff relied on the fact that the defendant did not inform the court in Malaysia of the 2012 will when the application for letters of administration was first made by the plaintiff. He also relied on the report of a handwriting expert whose conclusion supported the plaintiff’s claim that the signature found on the 2012 will was not the signature of the deceased. It was the plaintiff’s position that the defendant, having not produced a contrary expert report, must then accept the position expressed by his expert. The defendant on the other hand, chose to produce one of the witnesses to the execution of the 2012 will, a practicing lawyer in Malaysia, who testified firmly that he had witnessed the signing of the 2012 will by the deceased. The evidence of the mistress and Peter supported the defendant’s claim.</p> <p class="Judg-Heading-1">(a)   Legislative requirements</p> <p class="Judg-1"><a id="p1_10"></a>10     Sections 5 and 6 of the Wills Act (1838) provides rules as to the formal validity of wills and the mode of execution, respectively. The relevant parts are reproduced for ease of reference:</p> <p class="Judg-Quote-1"> <b><em>Section 5(2)</em></b>:     <em>A will shall be treated as properly executed if its execution conformed to the internal law in force –</em> </p> <p class="Judg-QuoteList-2">(<em>a</em>)     <em>in the territory it was executed;</em> </p> <p class="Judg-QuoteList-2">(<em>b</em>)     <em>in the territory where the testator was domiciled at the time –</em> </p> <p class="Judg-QuoteList-3">(<em>i</em>)     <em>When the will was executed; or</em> </p> <p class="Judg-QuoteList-3">(<em>ii</em>)    <em>Of his death.</em> </p> <p class="Judg-QuoteList-2">(<em>c</em>)     <em>in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or</em> </p> <p class="Judg-QuoteList-2">(<em>d</em>)     <em>in the state of which the testator was a national at either of the times referred to in paragraph (b)</em> </p> <p class="Judg-Quote-1"> <b><em>Section 5(3)</em></b>:     <em>Without prejudice to subsection (2), the following shall be treated as properly executed:</em> </p> <p class="Judg-QuoteList-2">(<em>a</em>)     <em>a will so far as it disposes of immoveable property if its execution conformed to the internal law in force in the territory where the property was situated.</em> </p> <p class="Judg-QuoteList-2">(<em>b</em>)     <em>a will so far as it revokes a provision which under this Act would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be treated as properly executed.</em> </p> <p class="Judg-Quote-1"> <b><em>Section 6(1)</em></b>:     <em>No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).</em> </p> <p class="Judg-Quote-1"> <b><em>Section 6(2)</em></b>:     <b><em>Every will shall be signed at the foot or end thereof by the testator, …and the signature shall be made or acknowledged by the testator as the signature to his will or codicil in the presence of 2 or more witnesses present at the same time and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.</em></b> </p> <p class="Judg-Quote-1"> <b><em>Section 6(3)</em></b>:     <em>Every will shall, as far only as regards the position of the signature of the testator…be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance -</em> </p> <p class="Judg-QuoteList-2">(<em>b</em>)     <em>that a blank space shall intervene between the concluding word of the will and the signature</em> </p> <p class="Judg-1"><a id="p1_11"></a>11     The burden of propounding a will lies in every case upon the party propounding the will (<b><em>ULV </em></b><em>v </em><b><em>ULW</em></b>).<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span> The will of 2012 complied with the legislative requirements for the will to be admitted to probate. The plaintiff’s position was that the will was never executed and that the witness that was called by the defendant, not having confirmed the identity of the testator and not having looked at the contents, did not witness the execution of the will. The alternative argument was that there were 2 copies of the will that were signed, hence the one that was not produced could have been the second one signed and its contents may not be similar, thus invalidating the one produced. The evidence of the witness to the will was in my view, convincing.</p> <p class="Judg-Heading-1">(b)   The evidence of the witness to the execution of the will of 3 August 2012.</p> <p class="Judg-1"><a id="p1_12"></a>12     A Malaysian lawyer who was one of 2 witnesses of the 2012 will provided an affidavit<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span> detailing that he had first met the deceased at a Sikh temple where the lawyer/witness served as a volunteer. He was also the Vice-President of the temple. The witness thanked the deceased for his donation of religious books to the temple and they started a conversation. The deceased asked the witness what he worked as and on finding out that he was a lawyer, asked if he could be a witness to his will. The lawyer/witness then asked if he needed his professional services to prepare the will. The deceased informed that he did not. The lawyer/witness noted that the deceased was fluent in English. The lawyer/witness then wrote his name and identity card number on the back of his name card and informed the deceased that he could indicate his details on the will the deceased would be preparing and to contact him when he was ready to sign it. The lawyer/witness also informed the deceased that he would need another witness to which the deceased said that he would ask a good friend of his. Subsequently the deceased called the lawyer/witness and arranged for the execution to be done at the law office of the witness.</p> <p class="Judg-1"><a id="p1_13"></a>13     On 3 August 2012, the deceased, his mistress and his good friend arrived at the law office of the witness. According to the lawyer, the deceased introduced his mistress as his wife and remarked that he wanted to leave his estate to her. The lawyer asked the deceased if he was comfortable having his mistress present during the execution of the will and he confirmed that he was.</p> <p class="Judg-1"><a id="p1_14"></a>14     The lawyer/witness went on to explain that he was handed 2 copies of a 3 page will and “<em>I glanced through these documents and noticed it was two copies of a will dated 3 August 2012 with three pages</em>”.<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span> He went on to state that he observed the deceased signing on the last page of the 2 copies and at the bottom right hand of the first and second pages. Having done so, the witness signed his name in the witness section on the third page and on the bottom left-hand corner of the first and second pages. He then passed the 2 copies of the will to the other witness who did the same. He then observed the deceased place the wills into an envelope and then place it in his bag. The evidence of the deceased’s mistress was in all material aspects, the same.</p> <p class="Judg-1"><a id="p1_15"></a>15     I found the evidence of the witness to the execution of the will compelling. There was no personal or professional relationship between the deceased and the witness to suggest that this event was concocted. Although the witness had seen the deceased at the temple on various occasions in the past, the first conversation was on the day the deceased asked for his help to witness the execution of his will. The witness although a lawyer, did not draft the will and had no obligation to retain a copy of the same. He appeared even by his demeanour in court to be a man who agreed to help the deceased simply because his help was sought. There was no reason for him to inform the court that the deceased had shared with him that he intended to leave everything to his mistress who was present and whom he referred to as his wife if this were not true. There was no relationship between the witness and the mistress of the deceased. His affidavit also speaks of the two copies of the will produced on that day and it would beg logic to suggest that the deceased produced 2 different wills on the same day and signed them at the same sitting. In fact, the reference to 2 copies of the will was unnecessary if there was an intention to create a false story that a will was executed. It would have been far simpler to just say the deceased executed a will instead of referring to 2 copies.</p> <p class="Judg-1"><a id="p1_16"></a>16     While it would have been ideal for the second witness to have given evidence, he could not be located. The first witness to the will confirmed the attendance of the second witness on the day the will was executed. The omission to call the second witness was not fatal given the strength of the testimony of the first witness. I did not agree with plaintiff’s counsel’s submission that the first witness had given his evidence in a cavalier manner.<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span> My impression of this witness was that he was clear in his statement that the deceased was present in his office on 3 August 2012, that the deceased spoke of his mistress as his wife and how he wished for her to be left with his assets, that he observed the deceased append his signature to the will that the deceased himself produced, how the witness himself appended his signature to the will, how he then forwarded the same to the second witness whom he identified as a friend of the deceased he was meeting for the first time. The evidence of the witness was not shaken under cross-examination and provide strong roots for the position advanced by the defendant that the 2012 will was in fact executed by the deceased.</p> <p class="Judg-Heading-1">The weight to be accorded to the evidence of the mistress of the deceased.</p> <p class="Judg-1"><a id="p1_17"></a>17     The plaintiff was never comfortable and perhaps understandably so, with his father having been in a romantic relationship outside of the marriage with the plaintiff’s mother. The fact that the 2012 will provides significantly for his father’s mistress may be difficult to accept. The very nature of a will is the expression of one’s autonomy in deciding who should receive one’s wealth/assets when one passes on. It often incites anger and dissatisfaction amongst family members who may not be provided for. It is not for a court to investigate the equity of such provision but to endorse the will of the testator provided he had the testamentary capacity to express his wishes and was not under any undue pressure or duress in doing so. In this case, the position taken by the plaintiff is that his father never executed such a will. In other words, without identifying who signed the will, he is alleging that the will is a forged document.</p> <p class="Judg-1"><a id="p1_18"></a>18     The deceased was in a relationship with his mistress for 16 years prior to his passing. He was estranged from his wife. It was alleged by the plaintiff that the mistress is not to be believed when she said that she was present at the signing of the will. This is in part premised on the fact that in the Malaysian proceedings she informed the court that she was not married to the deceased while in the Singapore proceedings she said she was. Any contract of marriage the deceased may have entered with his mistress while still married to his wife has serious legal consequences. This together with the apparent need to hide the marriage from the family of the deceased, is fair explanation of why the mistress felt compelled to lie. It is not condoned but it can be understood. The reference to her as a “partner and long-term companion” in the 2012 will also lends force to the need to keep their marriage a secret. The plaintiff submitted that if a person has the audacity to lie in one court, surely, she must not be believed in another. While certainly her words invite scrutiny, it cannot be dismissed when viewed against the context of her desperation to be quiet about the nature of the relationship with the deceased as well as the evidence of the lawyer who witnessed the deceased signing the 2012 will.</p> <p class="Judg-1"><a id="p1_19"></a>19     The evidence of the lawyer who witnessed the execution of the will was that he had never met the mistress of the deceased till the day she came to the office with the deceased. The witness has no reason to lie. He informed that she was present throughout and both the lawyer and the mistress gave evidence separately of how the deceased placed the executed will into an envelope and then put it in his bag. It bears repeating that it was the lawyer’s evidence under cross-examination that the deceased referred to his mistress as his wife and how he wanted to leave everything to her.<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span></p> <p class="Judg-1"><a id="p1_20"></a>20     When the deceased was hospitalised at the Singapore General Hospital in November 2010, he was concerned about his health deteriorating, and he took steps to sign a note which declared his love for his mistress and how he wished for all his assets to be given to her. This note was executed in the presence of a doctor who is named in the note, but its authenticity is challenged as the doctor did not give evidence. Notwithstanding this, the defendant had also given in evidence that the deceased had asked him prior to his death to take care of his mistress and informed that he had executed a will in 2012. The defendant stands to gain from the 2012 will only if the deceased’s mistress were to pass away before inheriting the deceased’s assets. I considered the possibility of any collusion between the mistress and the defendant even though this was not specifically submitted on. There was no evidence suggesting this. In fact, it was the evidence of the defendant that his mother and 2 other brothers Aaron and Peter, supported the position that the deceased wanted to leave his wealth to his mistress although it took some time to obtain the approval of his mother. The defendant’s mother and Aaron have since passed on and was not therefore able to confirm this. Peter however had given evidence in Court that while he was not happy with the contents of the will which left him with a small amount, he had to respect his father’s wishes.<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span> He did not challenge the authenticity of the will as he felt that his father had provided well for him and if his father chose to leave his wealth to his mistress, it was something that he had to respect. This witness was in fact the person who found among the documents of the deceased, the note that was made while the deceased was hospitalised in 2010, and which reads:</p> <p class="Judg-Quote-1">“<em>I cancelled all Wills previously made out of my love and affection for [the mistress] …. I give, bequeath her all my assets, moveable and immoveable, if I cannot be cured, in the event of my death</em> (sic).”<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span></p> <p class="Judg-1"><a id=""></a>This note produced by Peter who did not gain from the 2012 will, lends credence to the contents of the 2012 will and suggests also that there was a will before the note of 2010 was made, pointing to the possibility of the 1994 will. I found his evidence on the discovery of the deceased’s note and his position on the will of 2012 to be credible in the larger context of his difficult relationship with both brothers suggesting that he was not aligned to either.</p> <p class="Judg-Heading-1">To what extent should reliance be placed on the handwriting analysis?</p> <p class="Judg-1"><a id="p1_21"></a>21     The plaintiff provided specimen signatures to a handwriting expert for purposes of determining whether the deceased had in fact signed the 2012 will. These were found in a document titled “Exclusive Management Authority for Residential Premises” from the Real Estate Institute of Western Australia (REIWA document)<span class="FootnoteRef"><a href="#Ftn_12" id="Ftn_12_1"><sup>[note: 12]</sup></a></span> dated 30 December 2011 purporting to be a single document containing 10 signatures of the deceased (S1 -S10) and a copy of the deceased’s Singapore International Passport with the specimen signature of the deceased (S11). Having explained the methodology used, it was the conclusion of the expert that the signatures found in S1 -S11 were different from the signatures found in the will (Q1 to Q3) and that these differences were not within the range of natural variance.<span class="FootnoteRef"><a href="#Ftn_13" id="Ftn_13_1"><sup>[note: 13]</sup></a></span></p> <p class="Judg-1"><a id="p1_22"></a>22     With respect to the REIWA document, it is not certain that the signature that appears on it are in fact signatures of the deceased. No one, including the plaintiff claimed that they saw the deceased sign the document. The expert cannot be faulted in believing the authenticity of the signature when he referred to them as “<em>original inked signatures of XXX</em>...”<span class="FootnoteRef"><a href="#Ftn_14" id="Ftn_14_1"><sup>[note: 14]</sup></a></span> However given the acrimony between the parties, the lack of acknowledgement of a 1994 will by the plaintiff and the position the plaintiff takes on the signature in the 2012 will, the delivery of the REIWA document by the plaintiff himself without any understanding of the context in which these signatures were obtained, if at all, makes this a hurdle that was hard to ignore. Regardless, I chose to take a leap over it and look at the other evidence available.</p> <p class="Judg-1"><a id="p1_23"></a>23     What cannot be disputed is the authenticity of the signature found on the Singapore passport. This would represent the true signature of the deceased. Yet the expert did not expend much effort to compare the signature found in the passport with those of the will. The reference in his report was that the signature on the passport was “larger” than that found on the REIWA document without explaining in detail the effect of such variation. He also remarked that the letter ‘m’ appears to have a taller arc than that found in the REIWA document. As to why this would be considered natural variations is not adequately explained nor how then this impacts his conclusion.</p> <p class="Judg-1"><a id="p1_24"></a>24     During cross-examination, the expert claimed that he did adequately compare the signature found in the passport with that in the will, but the results of his observation are not sufficiently addressed in his report. When pressed to compare the signatures on the face of the documents, he accepted that the signatures in the will appeared consistent with the signature in the passport but were dissimilar to the signatures in S1, S2 and S3 found in the report. I accepted that this is a comparison with the naked eye and do not amount to a proper microscopic analysis. However, I found it difficult to accept the conclusion he made with respect to signatures on the will when compared to the REIWA document, even if I were to assume the authenticity of the latter, as his primary focus was to compare Q1 to Q3 with S1 to S3 when S1 to S3 themselves had significant variations which he rather cursorily referred to as natural variations. I had serious doubts as to the accuracy of the assessment especially because the deceased may have been signing the various documents under very different conditions at different points in time. For example, the ‘left leaning” of some of the signatures in the REIWA document was said to have possibly been the result of the document being signed at an angle. The state of health of the deceased during the times the documents were signed may also account for the variance that is seen. It was the expert’s evidence also that the REIWA signatures appear to have been done quickly. The nature of a will and the need to take a slower pace in signing may also account for the hesitation that was observed by the expert in his report. The evidence of the witness threw up too many uncertainties.</p> <p class="Judg-1"><a id="p1_25"></a>25     Handwriting analysis while rooted in sound methodologies, is far from precise. Indeed the defendant’s counsel in relying on the words of Sir John Nicholl in <b>Robson &amp; Wakefield</b> v <b>Rocke</b><span class="FootnoteRef"><a href="#Ftn_15" id="Ftn_15_1"><sup>[note: 15]</sup></a></span> who said with reference to such analysis that “…<em>few individuals, it is apprehended write so uniformly that dissimilar formations of peculiar letters are grounds for concluding them not to have been made by the same person</em>” provide an understanding of the courts from a long time ago, of the uncertainties involved in such analysis. Such uncertainties continue to be relevant today even in the face of advanced technology. Today, there is a school of thought that even argues against the field’s reliability as a science. The weight of opinion however is in favour of such analysis guiding the courts. While I accept that expert opinion in this field is certainly helpful, it cannot be accepted purely on the basis that it is analysis done by an individual with vast experience and training.<span class="FootnoteRef"><a href="#Ftn_16" id="Ftn_16_1"><sup>[note: 16]</sup></a></span> The report presented and the answers under cross-examination clearly point to an analysis that was not robust and a conclusion that gave rise to more questions than answers. I was largely in agreement with the defendant’s submissions on the areas of concern in addition to the importance of making more specimens available to handwriting experts for a complete picture of the way an individual may sign his name and the variations that are seen between signatures on different documents executed at different times. The defendant in choosing not to have another expert conduct an examination is certainly not critical as it was the allegation of the plaintiff that the will was never signed by the deceased and against this allegation, the defendant chose to rely on the evidence of the witness to the will to prove that it was.</p> <p class="Judg-Heading-1">Does the delay in the production of the 2012 will create suspicion as to its authenticity?</p> <p class="Judg-1"><a id="p1_26"></a>26     The other main challenge by the plaintiff was that the defendant’s failure to inform the Malaysian court of the existence of the 2012 will creates grave doubt as to its existence.</p> <p class="Judg-1"><a id="p1_27"></a>27     The Malaysian court issued letters of administration in May 2018. The defendant though he knew of the will in 2016, and informed his lawyer in 2017, did not raise it in the Malaysian proceedings. What he did was to inform the plaintiff’s lawyer through a letter of the lawyer who was a witness to the 2012 will to inform of the 2012 will as well as to refer to the 1994 will. It was the evidence of the lawyer/witness that he was not acting as the defendant’s lawyer in writing this letter but simply to assist in the process as he was a witness to the 2012 will. He felt that his letter would shed light and be helpful to the parties insofar as proceedings in Malaysia were concerned<span class="FootnoteRef"><a href="#Ftn_17" id="Ftn_17_1"><sup>[note: 17]</sup></a></span>. Regardless, no action was taken by the defendant to press this in the Malaysian court. This was callous. Instead, he applied for probate in Singapore and obtained it in November 2017. His explanation was that he was told by his lawyer that it was too late to do anything insofar as the Malaysian proceedings are concerned as the proceedings were in advanced stages by the time the defendant sought legal advice. No evidence to that effect was however produced. The defendant explained that when he knew of the existence of the will in 2016 from the deceased’s mistress, he did not do anything until he had actual sight of the original will. Having had sight of it and confirming its authenticity with the witnesses to the execution, he needed to obtain the blessings of his family but more particularly his mother who would naturally be upset with a will that left everything to the deceased’s mistress. Having eventually obtained her blessings, he proceeded to apply for probate especially on account of his knowledge of what his father’s intentions were.</p> <p class="Judg-1"><a id="p1_28"></a>28     The defendant’s omission in informing the Malaysian court of the existence of the will and his reliance on poor legal advice, if true, created unnecessary problems. The reasons he provided for having failed to do so while plausible, were irresponsible and in the absence of any evidence other than the defendant’s word, I was not able to conclude on this issue save that he could hide the truth as much as he alleged the plaintiff could. The central issue however remains whether the will of 2012 is the will of the deceased. The defendant’s position that there was a 1994 will that the plaintiff knew of and kept, but which was never produced, throws up the same challenge. I believed the position of the defendant that the plaintiff knew of and retained this 1994 will. First, in the plaintiff’s reply to the defence, he indicated that he had “temporary” possession of the 1994 will<span class="FootnoteRef"><a href="#Ftn_18" id="Ftn_18_1"><sup>[note: 18]</sup></a></span> but in evidence he denied any knowledge. Second, the evidence of the defendant that the plaintiff was in possession and knew of the 1994 will was corroborated by Peter. This 1994 will which left substantial assets to the wife of the deceased and negligible amounts to the parties was executed prior to the commencement of the deceased’s relationship with his mistress. Even as the plaintiff alleged that the omission to produce the 2012 will in the Malaysian proceedings creates suspicion of its authenticity, I had difficulty believing the plaintiff’s lack of knowledge of the 1994 will when the defendant’s evidence to the contrary was supported by Peter. Peter stood to gain little from the 2012 will. He also shared that he had a close relationship with his father and confirmed that his parents lived separate lives from the 1990s making it entirely probable that the deceased wanted to leave his wealth to his mistress. Peter also gave evidence that his father and the plaintiff were estranged for more than 20 years making the contents of the 1994 and the 2012 wills which left little for the plaintiff, a reflection of the true state of matters and feelings between the deceased and plaintiff.<span class="FootnoteRef"><a href="#Ftn_19" id="Ftn_19_1"><sup>[note: 19]</sup></a></span></p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_29"></a>29     The allegation by the plaintiff that the 2012 will was not signed by the deceased has 2 main and distinct bases: that it was not produced to the court in Malaysia thus creating suspicious circumstances and secondly, that the handwriting expert had concluded that the signatures in the will do not match the specimen signatures of the deceased. The plaintiff and defendant are suspicious of each other. They both have acted in ways which call into question their motives. The plaintiff was upset with his father’s mistress and was unhappy that the will leaves much of his estate to her while referring to his wife and children as “estranged”. The deceased and his mistress would have wanted to keep their marriage a secret given that the deceased was still married to his wife in Singapore at the time. It is entirely consistent with this background that the defendant chose to delay informing about the 2012 will, however misplaced and unfortunate this was. The key witness in these proceedings is the lawyer who witnessed the execution of the will who much like the observations made by the Court in <b><em>Sudha Natarajan </em></b><em>v </em><b><em>The Bank of East Asia Ltd</em></b>.<span class="FootnoteRef"><a href="#Ftn_20" id="Ftn_20_1"><sup>[note: 20]</sup></a></span> should not be faulted for his failure to keep attendance notes or provide any legal advice to the deceased as he was just a witness to the execution of the will. I had no doubt that this witness was merely helping the deceased with the latter’s request for a witness to his will. He was clear in his position under cross-examination and he stood nothing to gain from concocting a story that he was a witness. In fact, he stands much to lose professionally if it were not true. Similarly, the parties’ brother, Peter, corroborated the evidence of the defendant in material ways. He knew of the 1994 will as well as the note written by the deceased while hospitalised leaving his assets to his mistress as he thought he may pass on during that period of time. This witness chose to accept what he believed were the wishes of his late father even though this brought no benefit to him. Against this evidence, the analysis of the handwriting expert lacked the requisite strength to be relied on safely. The scant number of specimens, the lack of detail and clarity in expressing why some signatures on the specimens show an acceptable variance while some do not, the overemphasis in comparing S1 to S3 with Q1 to Q3 as opposed to the other samples, in particular S11 (the specimen on the passport) and the lack of reference to possible changing circumstances and situations of the deceased and the environment he was in when he signed on the specimens and the will, all call for caution to be exercised in accepting the report.</p> <p class="Judg-1"><a id="p1_30"></a>30     The totality of the evidence points to the proper execution of the 2012 will by the deceased in favour of a lady he felt cared for him and who needed to be supported after his passing. It is not for a court to question the fairness of the act of the deceased in providing for his mistress to the exclusion of his family. That is the nature of wills. It is an expression of the wishes of the deceased – an expression that a court of law has a duty to accept provided the laws governing the proper execution of wills have been complied with. I am of the view that all such laws and legal formalities were observed, and the deceased’s will of 2012 must therefore be respected.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Paragraph 5 of the affidavit of the deceased’s mistress dated 22 November 2022.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Paragraph 10 of the defendant’s affidavit of 10 January 2023.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Exhibit SAAS -1 of the defendant’s affidavit of testamentary scripts dated 4 November 2020.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>[1990] 2SLR (R) 774.</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup><a class="pagecontent" href="javascript:viewPageContent('/Judgment/22704-SSP.xml')">[2019] SGHCF 2</a>.</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Affidavit of 23 November 2022.</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>Ibid. at paragraph 11.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>Paragraph 23 of 5 September 2023 submissions.</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>Page 160-162 of NE (Day 3).</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup>Page 62, lines 10-13 of NE (Day 2).</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup>Page 78 at lines 16 – 22, NE (Day 2).</p><p class="Footnote"><sup><a href="#Ftn_12_1" id="Ftn_12">[note: 12]</a></sup>See pages 10-12 of the report exhibited in the expert’s affidavit of 5 January 2023.</p><p class="Footnote"><sup><a href="#Ftn_13_1" id="Ftn_13">[note: 13]</a></sup>Paragraph 5 of the expert’s affidavit of 5 January 2023.</p><p class="Footnote"><sup><a href="#Ftn_14_1" id="Ftn_14">[note: 14]</a></sup>Paragraph 5.1 on page 3 of the report exhibited in the affidavit of the handwriting expert.</p><p class="Footnote"><sup><a href="#Ftn_15_1" id="Ftn_15">[note: 15]</a></sup>(1824) 2 Add 53 at [79-80].</p><p class="Footnote"><sup><a href="#Ftn_16_1" id="Ftn_16">[note: 16]</a></sup>Fancini, Simone Ling, “Expert Handwriting Testimony: Is the Writing Really on the Wall?”11 Suffolk J. Trial &amp; App. Advoc. 99 (2006).</p><p class="Footnote"><sup><a href="#Ftn_17_1" id="Ftn_17">[note: 17]</a></sup>Lines 3-17 at pages 146-147 of NE (Day 3).</p><p class="Footnote"><sup><a href="#Ftn_18_1" id="Ftn_18">[note: 18]</a></sup>At page 1 of the Reply of the plaintiff.</p><p class="Footnote"><sup><a href="#Ftn_19_1" id="Ftn_19">[note: 19]</a></sup>Paragraphs 9, 12 of affidavit of 25 November 2022 and lines 2-4 at page 42 of NE (Day 2).</p><p class="Footnote"><sup><a href="#Ftn_20_1" id="Ftn_20">[note: 20]</a></sup><a class="pagecontent" href="javascript:viewPageContent('/Judgment/19733-SSP.xml')">[2016] SGCA 66</a>.</p></div></content></root> c4cc846432db9806a9978105890c9feb9a6652f8

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