From 208d540e7897093a4975dc1719c8ecfdd63a7186 Mon Sep 17 00:00:00 2001 From: Automated update Date: Mon, 10 Jun 2024 18:45:20 +0000 Subject: [PATCH] Latest fc-judgments data: Tue Jun 11 02:45:20 +08 2024 --- data/fc-judgments.json | 2 +- 1 file changed, 1 insertion(+), 1 deletion(-) diff --git a/data/fc-judgments.json b/data/fc-judgments.json index 3b197d59..99a16247 100644 --- a/data/fc-judgments.json +++ b/data/fc-judgments.json @@ -1 +1 @@ -[{"tags":["Family Law – Procedure – Extension of time"],"date":"2024-05-29","court":"Family Court","case-number":"Divorce No 1991 of 2024 (Summons No 1059 of 2024)","title":"WXQ v WXR","citation":"[2024] SGFC 35","url":"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%2F31583-SSP.xml","counsel":["Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff","the defendant in person and unrepresented."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXQ v WXR

WXQ v WXR
[2024] SGFC 35

Case Number:Divorce No 1991 of 2024 (Summons No 1059 of 2024)
Decision Date:29 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff; the defendant in person and unrepresented.
Parties: WXQ — WXR

Family Law – Procedure – Extension of time

29 May 2024

Assistant Registrar Soh Kian Peng:

1       SUM 1059 of 2024 (“SUM 1059”) was the Husband’s application for an extension of time to file and serve his Defence and Counterclaim.

2       I heard and granted the application on 27 May 2024. I now set out my grounds of decision.

3       The writ was served on the Husband on 7 May 2024. The Husband filed his memorandum of appearance on 10 May 2024. According to the Family Justice Rules 2014, a defendant who has filed a memorandum of appearance must file a defence within 14 days after the expiry of time limited for the filing of the memorandum of appearance. This meant that the Husband had to file his Defence and Counterclaim by 29 May 2024.

4       The Husband, however, had applied for legal aid. He had exhibited, in his affidavit filed in support of SUM 1059, an email from the Legal Aid Bureau, acknowledging that his application for legal aid on 13 May 2024, and giving him an appointment for means testing on 20 May 2024.[note: 1]

5       Because the Husband had applied for legal aid, s 17 of the Legal Aid and Advice Act 1995 (2020 Rev Ed) (“LAA”) was relevant. That provision states:

Stay of proceedings upon making of application for legal aid

17.—(1)    Where proceedings have been commenced and any party makes an application for legal aid, the Director must, as soon as practicable after the application is made, notify the other party or each of the other parties, and file with the court in which the proceedings are pending, a notification of the making of the application; and no fee is to be payable in respect of the filing of the notification.

(2)     Where a notification under subsection (1) is filed in respect of any proceedings, the following apply unless the court (before which those proceedings are pending) orders otherwise:

(a)     all steps in those proceedings are stayed for a period of 14 days after the date on which the notification is filed;

(b)     during that period, the time fixed by or under any written law, for doing any act or taking any step in those proceedings, does not run.

(3)    Despite subsection (2), the filing of the notification under subsection (1) does not prevent any of the following:

(a)    the making of an interlocutory order for an injunction, or for the appointment of a receiver, a manager or a receiver and manager;

(b)    the making of an order to prevent the lapse of a caveat against dealings with land;

(c)    the making of any other order which, in the opinion of the court, is necessary to prevent an irremediable injustice;

(d)    the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect an order mentioned in paragraph (a), (b) or (c), unless the court orders otherwise.

(4)     The period mentioned in subsection (2)(a) may be reduced or extended by an order of the court.

[emphasis added]

6       The purpose of s 17 of the LAA may be gleaned from the Second Reading of the Legal Aid and Advice (Amendment) Bill. As the Senior Minister of State for Law, Mr Edwin Tong had explained (Singapore Parliamentary Debates, Official Report (19 November 2018) vol 94):

I would also like to assure the Member that where an applicant requires aid as a matter of urgency, for example, when an appeal is due to be filed, the Director may issue a Grant of Aid on a provisional basis, if the Director is of the view that the applicant is likely to satisfy the means test and is likely to have a reasonable ground for appealing against the decision.

This Grant is typically valid for a period of three months and can be further extended if necessary. Under the Provisional Grant of Aid, the Bureau may assist the aided person with the filing of the Notice of Appeal. In addition, the Director can also issue a notification under section 17 of the Legal Aid and Advice Act to stay the proceedings for a period of 14 days, whilst this is being done.

[emphasis added]

7       The purpose of s 17 of the LAA is to ensure that the person who has applied for legal aid whilst there are pending proceedings, is not prejudiced by his application for legal aid. The stay of proceedings effectively ensures that the applicant for legal aid can still comply with the procedural timelines, such as the filing of a notice of appeal, whilst his application for legal aid is being processed.

8       In the present case, although the Husband had applied for legal aid on 13 May 2024, when the matter came up before me for hearing, no notification had been filed.

9       This presented a problem. This stemmed from the fact that the stay under s 17 of the LAA would only take effect when the requisite notification had been filed with the court. Therefore, the crucial event was when that notification was filed. It bears emphasising that s 17 LAA only stipulates that the Director of Legal Aid is to file the notification as soon as practicable – the provision does not set out a deadline by which this must be done.

10     Two scenarios presented themselves. If the Director of Legal Aid filed the notification by the 29th of March, which was the deadline for the Husband to file his Defence and Counterclaim, all would be well. The Husband would have an extension of 2 weeks, and this stay could be further extended by an order of court: s 17(4) of the LAA.

11     However, if the notification was filed after the 29th of May, the stay would not operate because the Husband would be out of time insofar as the deadlines for him to file and serve his Defence and Counterclaim was concerned. In other words, there was nothing on which the stay under s 17 of the LAA would operate.

12     There was, therefore, some logic to the Husband’s application – one might say he was acting ex abundanti cautela – after all, he did not know when the Director of Legal Aid would file the notification set out in s 17 LAA, or whether he would even be granted legal aid.

13     In the circumstances, I was satisfied that an extension of time, pursuant to Rule 15 of the Family Justice Rules 2014, should be granted. In granting this extension of time, I was also mindful that the Director of Legal Aid could file the notification after I had made the order and the effect this would have pursuant to s 17 of the LAA.

14     I therefore ordered that:

(a)     The Husband be granted an extension of time to file his Defence and Counterclaim for:

(i)       2 weeks till 10 June 2024; or

(ii)       To the date that the Director of Legal Aid files the Certificate under s 17 of the Legal Aid and Advice Act,

whichever was earlier; and

(b)     That the Husband shall have liberty to apply.

[note: 1]Husband’s Affidavit filed in support of SUM 1059 of 2024.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories","Civil Procedure – Interrogatories – Sufficiency of Answer"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce No 4868 of 2022 (Summons No 1012 of 2024)","title":"WXG v WXH","citation":"[2024] SGFC 32","url":"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%2F31582-SSP.xml","counsel":["Tang King Kai (Tang & Partners) for the plaintiff","Ng Wen Wen (Grace Law LLC) for the defendant."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXG v WXH

WXG v WXH
[2024] SGFC 32

Case Number:Divorce No 4868 of 2022 (Summons No 1012 of 2024)
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant.
Parties: WXG — WXH

Civil Procedure – Discovery

Civil Procedure – Interrogatories

Civil Procedure – Interrogatories – Sufficiency of Answer

27 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties registered their marriage on 19 March 1998. A year later, they welcomed their son into the family. By all accounts, based on the Statement of Particulars (“SOP”) and the affidavits before me, it was a happy marriage.

2       This state of affairs, unfortunately, did not last. When the son was 18, he was taken ill. It was not a physical ailment from which he suffered, but one of the mind. It appears that the Wife did the best she could to support her son. Doctors were consulted, and treatment was sought. The Husband, on the other hand, appeared to have difficulty coming to terms with his son’s illness. As to why the Husband reacted in the way he did, we do not know – though the Wife’s Affidavit of Means and Assets (“AOM”) provides some clues. The Husband has, in any case, made no mention of this in any of his affidavits.

3       What we do know is that the relationship between Husband and Wife deteriorated to the point that the Husband filed for divorce on 19 October 2022. Interim judgment was obtained on 16 August 2023. Mediation was attempted but bore no fruit. This set parties on course for an ancillary matters hearing.

4       The next stage in this process was the exchange of parties’ affidavits of assets and means (“AOMs”). The Wife, being dissatisfied with the extent of the Husband’s disclosure, filed an application for discovery and interrogatories in SUM 1012 of 2024 (“SUM 1012”).

5       I heard oral submissions from parties on 20 May 2024. I now give my decision in respect of SUM 1012.

Wife’s Request for Interrogatories

6       This was the interrogatory that had been posed by the Wife:

The Plaintiff is to account for the sum of $55,224.53 parties had in a fixed deposit account number x-x-xxx-xxxxxxxxx-4-702 under Hong Leong Bank. This sum was withdrawn by the Plaintiff upon the maturity of the fixed deposit in July 2022, without the Defendant’s knowledge.

7       Counsel for the Husband, Mr Tang, argued that the Husband had already answered this question. This was the Husband’s reply to the interrogatory in his Notice-in-Response:

The Plaintiff says that he has no account with Hong Leong Bank and he is not aware of the alleged fixed deposit of $55,224.53 purportedly in his name. This is a frivolous and mischievous allegation and the Defendant is put to strict proof thereof.

8       In response, counsel for the Wife, Ms Ng, argued that the Husband’s response was inadequate. She said that the Husband was feigning ignorance – given that this was a recent transaction, there was no reason why he could not recall it.

9       In considering the Wife’s application for interrogatories, I am only concerned with the sufficiency, and not the truth of the response provided by the Husband. Although Ms Ng appeared to be contesting the truth of the response, I understood her point to be that the response given by the Husband, which could be characterised as a general denial, to be an insufficient answer to the interrogatory posed. Ms Ng confirmed that this was indeed her argument.

10     As to whether the Husband’s response was sufficient, the case of Earp v Lloyd [1858] 70 ER 24 (“Earp”) is instructive. The court in that case had noted:

The rule has always been that, where there is a specific averment, an interrogatory founded upon that specific averment must be specifically answered; a general denial is not a sufficient answer to a specific averment.

[emphasis added]

11     In Earp, the averment was that land was to be conveyed to one Smith. The interrogatory was whether “such land was not conveyed to one Smith, or to some and what person or persons”. The answer which the plaintiff had given was that he “could not set forth whether the property was conveyed to Smith or to any person or persons”. The court ruled that this answer was insufficient.

12     In the present case, the Wife has asked the Husband to account for the sum of $55,224.53 that had been placed in a fixed deposit with Hin Leong bank. She had stated, specifically, in her AOM, that the Husband had withdrawn this sum.[note: 1] She had even referred him to a statement of said fixed deposit from Hin Leong bank. That statement showed that the fixed deposit had also been placed in the Husband’s name.

13     I find that the Husband’s response is indeed insufficient. The Wife had asked him a question that was founded on a specific averment in her AOM. Given this, it does not suffice for the Husband to simply respond with a bare denial that he had no account with Hin Leong, and that he is not aware of a fixed deposit for $55,224.53 that was allegedly in his name.

14     I will therefore order that the Husband answer this interrogatory.

Wife’s Request for Discovery

15     I come now to the Wife’s request for Discovery. There were 12 items on the list. They could be categorised into the following two groups:

(a)     Full monthly statements of accounts in respect of each of the six bank accounts in the Husband’s name (Items 1 – 6) for the period 1 January 2021 – 31 January 2024;

(b)     Documents evidencing account closure in respect of each of the same six bank accounts in the Husband’s name (Items 7 – 12).

16     Ms Ng argued, both at the hearing and in her well-written skeletal submissions, that disclosure of these documents were relevant and necessary for the hearing of the ancillary matter because it appeared that the Husband had taken steps to dissipate assets that should rightfully belong to the matrimonial pool.[note: 2] This is, according to Ms Ng, evident from the fact that all six accounts were closed over the span of a few months, in the time leading up to and shortly after the entering of the interim judgment.[note: 3] The Wife would need these documents to determine exactly when these six accounts had been closed, and whether the Husband had indeed dissipated the money in these accounts, and if so, where the money had been transferred to.

17     In response, Mr Tang argued that the Husband had already made voluntary disclosure of the account balances in these six accounts.[note: 4] In any event, the Husband had already stated, in his Notice in Response to the Wife’s 2nd Request for Discovery (“NIR”), that he did not have, in his possession, the final statement in respect of these six accounts as he did not expect the Wife to ask for these documents, and in any case, the account had already been closed.[note: 5]

18     I understood Mr Tang to be making the point that I could not make an order for the discovery of the bank account statements because those documents did not exist. It is true that “a prerequisite to the court’s power to order discovery is that there must be some [prima facie] evidence that the document requested is or has at any time been in the respondent’s possession, custody or power”: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).

19     I am satisfied that there was such prima facie evidence. After all, it is not disputed that these six accounts were in the Husband’s name. And if the Husband had these accounts, it also stands to reason that the banks would have provided these statements. There was, in any event, nothing in the Husband’s reply affidavit, or the NIR, denying the existence of these documents.

20     Insofar as the principles relating to discovery are concerned, it is trite law that an order for discovery should only be made if the documents sought are relevant and necessary to the disposal of the ancillary matters: UJN v UJO [2018] SGFC 47 at [10] citing Rules 63 – 77 of the Family Justice Rules 2014.

21     There can, in my judgment, be no quarrel that the account statements (ie, Items 1 – 6) which the Wife sought were indeed relevant and necessary to the disposal of ancillary matters. If the Husband had withdrawn or transferred money from any of those six accounts, it would be reflected in the account statements.

22     However, I did not find that the request for the documents evidencing account closure was relevant or necessary. What the Wife was really after were the account statements – she wanted to know what had happened to the money in those six accounts. If the Husband’s position was that he had closed the accounts, and therefore could not provide the account statements, that was for him to show by way of documentary evidence that the accounts had indeed been closed.

23     I will therefore allow the request in respect of Items 1 – 6, and disallow the request in respect of Items 7 – 12.

Conclusion

24     It is therefore ordered that:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 1 – 6 of Schedule 1 annexed to SUM 1012/2024, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Husband shall answer the interrogatory as set out in Schedule 2 annexed to SUM 1012/2024 on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

25     The Husband is to file his compliance affidavits by 18 June 2024.

26     Parties are to file and serve their costs submissions by way of letter by 12 June. The submissions should be no longer than 5 pages each.

27     It remains for me to thank both Mr Tang and Ms Ng for their able assistance.

[note: 1]Wife’s AOM at para 26(h).

[note: 2]Wife’s Skeletal Submissions in support of SUM 1012 at paras 18 – 22.

[note: 3]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

[note: 4]Husband’s Affidavit in response to SUM 1012, Exhibit A.

[note: 5]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-05-24","court":"Family Court","case-number":"Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)","title":"WXI v WXJ","citation":"[2024] SGFC 31","url":"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%2F31581-SSP.xml","counsel":["Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff","the defendant in person and unrepresented"],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXI v WXJ

WXI v WXJ
[2024] SGFC 31

Case Number:Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)
Decision Date:24 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff; the defendant in person and unrepresented
Parties: WXI — WXJ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

24 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties were married in India in 2001. In the same year, they made their way to Singapore. During this time, they welcomed a son and a daughter into their family. Sometime in 2010, parties returned to India. Five years later, the Wife returned to Singapore. She did so to help the family maintain the matrimonial home – a HDB flat which they had bought early in their marriage. The son also returned to Singapore sometime in October 2022 to enlist for National Service.

2       As to how the relationship between Husband and Wife broke down, details are provided in the Statement of Particulars. In essence, the Wife felt that the Husband had not supported her in their marriage. This caused her an undue amount of stress as she had to look after the family finances.[note: 1] On the emotional front, the Wife felt that the Husband was indifferent to her emotional needs and that she was living in an “empty shell marriage”.[note: 2]

3       Unable to tolerate this state of affairs any longer, the Wife filed for divorce on 22 December 2022. Interim judgment was obtained on 31 August 2023. Parties subsequently set course for a hearing of the ancillary matters. In preparation for that hearing, they exchanged their respective affidavits of assets and means. Evidently, both were dissatisfied with the extent of disclosure that had been provided.

4       This thus spawned the two applications that came before me. SUM 975/2024 (“SUM 975”) was the Wife’s application for discovery. SUM 1283/2024 (“SUM 1283”) was the Husband’s application for discovery and interrogatories. I heard both applications on 17 May 2024.

5       This is my decision in respect of SUM 975 and SUM 1283.

Wife’s Application for Discovery (“SUM 975”)

6       At the hearing, counsel for the Wife, Ms Seetha, confirmed that she would not be proceeding in respect of Items 1, 6, 7, 8, 10, and 11 of Annex A to SUM 975. I will therefore deal with the rest of the items on that list. In doing so, I bear in mind the guiding principle that discovery should only be ordered if the document sought is relevant, and necessary for the disposal of the ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47 (“UJN”) at [10]; Rules 63 – 77 of the Family Justice Rules 2014.

7       I will first deal with the Wife’s request for various statements of the Husband’s CPF account. These were the relevant items:

(a)     Item 2: the Husband’s CPF transactions and contribution statements for 2020 – 2023.

(b)     Item 3: the Husband’s current CPF investment statement.

(c)     Item 5: the Husband’s CPF account statement as of November 2023.

8       Ms Seetha says that these statements are relevant and necessary towards determining the matrimonial pool of assets. The CPF statements would also enable the Wife to ascertain the Husband’s income. The Husband’s response was that he had produced these statements in his response to the Wife’s request for discovery.[note: 3] The Husband also stated that he was, in any case, ready to provide these documents should the court order it.

9       I will allow the request in respect of Items 2, 3 and 5. I find that the CPF statements are indeed relevant and necessary for the hearing of ancillary matters. It would shed light on the Husband’s income, and also be useful for ascertaining the matrimonial pool of assets.

10     Item 4 was a request for the Husband to produce statements for his bank accounts with DBS and City Union Bank for the period December 2022 to November 2023. Ms Seetha argued that these documents were relevant and necessary for the ancillary hearing as they would shed light on the Husband’s assets. In response, the Husband stated that he was willing to provide the documents to the court, but he did not want the Wife to have sight of it. He explained that there were transactions in those documents that could affect his reputation. He did not want the children to be affected.

11     I will allow the Wife’s request in respect of Item 4. The documents sought were clearly relevant and necessary for the disposal of ancillary matters. These documents would shed light on the financial status of the Husband in the period following the filing of the divorce. That the Husband did not want the Wife having sight of the bank statements is not a basis for refusing disclosure. I would, however, add that while I have ordered that the Husband disclose these documents, they are only to be used for the purposes of the ancillary matters hearing.

12     Item 9 was a request for the Husband to produce documents on the alleged claims of two creditors, one Mr J and Swift Credit. Ms Seetha explained that they were requesting for these documents as the copies which the Husband had provided were illegible. These documents, according to Ms Seetha, were relevant for the hearing of ancillary matters in that they would establish the Husband’s direct and indirect contributions and show whether there had been any dissipation of matrimonial assets.

13     The Husband’s response was that because the documents he had provided was in the Wife’s handwriting, she should be able to decipher what had been written.

14     I disallow this request. As I had pointed out to Ms Seetha during the hearing – if the Husband sought to rely on these documents to establish his financial contributions, he bore the onus of proving it and producing the necessary documentary evidence to that effect. In any event, I was not satisfied as to the relevancy of these documents – it would only show the extent of the obligations as between the Husband and his creditors, but it would not show how the proceeds from these loans had been used.

15     Item 12 related to mortgage loan statements from HDFC Bank India (“HDFC”) for the matrimonial property in India from 2017 – 2023. Ms Seetha explained that these documents were necessary to confirm that the Husband had indeed contributed to the matrimonial property in India. In response, the Husband argued that because the Wife was also a party to the mortgage that had been taken out, she too was in a position to ask for these documents. The Husband further stated that the bank would only provide a yearly statement, and that he had already provided this.

16     I will disallow the request in respect of Item 12. Similarly, if it is the Husband’s case that he had contributed to the acquisition of the matrimonial property in India by way of repaying the mortgage, then it was for him to put forward those documents in evidence.

Husband’s Application for Discovery and Interrogatories (“SUM 1283”)

17     I turn now to the Husband’s request for discovery and interrogatories. During the hearing, the Husband confirmed that he would not be proceeding in respect of the following:

(a)     Discovery: Items 1, 3, 4, 7, 13, 14, 15, 18, 20, and 22.

(b)     Interrogatories: Items 1, and 5.

I will deal with the rest of the items that had been proceeded with, beginning with the Husband’s request for interrogatories.

Interrogatories

18     I note, at the outset, that the Husband had failed to, in SUM 1283, include the relevant prayers. He had only annexed the list of interrogatories that he sought to SUM 1283. Ms Seetha, however, raised no objections on this ground. She dealt with the Husband’s application on its substance. She had also put in written submissions to respond to the Husband’s request for interrogatories.

19     It must be noted that the Husband is self-represented. While Rule 69(6) of the Family Justice Rules 2014 stipulates that an application for interrogatories for interrogatories to be answered must be made by way of summons in the relevant Form, I do not think the Husband should, in this case, be penalised for his non-compliance.

20     I will therefore deal with his application for interrogatories as had been argued before me.

21     In deciding whether interrogatories should be ordered, I must look at the sufficiency of the Wife’s answers. In other words, I must be satisfied that she has answered the interrogatories that the Husband had posed to her. The truth of the answers is not ascertained at this stage of proceedings. If the Husband says that the Wife’s answers are not true, that is for him to raise at the ancillary hearing. I also bear in mind the principle that the interrogatory posed must be relevant and necessary for the disposal of ancillary matters (see UJN at [10] and [12]).

22     I start with Item 2. The Husband had asked the Wife to provide a breakdown of her monthly loan repayments. This was the Wife’s response:

“This is just a rough figure. The Plaintiff has to pay to five different credit facilities. The amount varies with each bank every month”.

23     This is not a sufficient answer. The question specifically asks for a breakdown of the Wife’s monthly loan repayments. The Wife has side-stepped the question. She has not given a breakdown of her monthly loan repayments. She has only disclosed her obligation to pay five different credit facilities every month without setting out the details of the amounts she is paying. I will therefore allow the request in respect of Item 2.

24     The interrogatory posed in Item 3 asked the Wife to state her monthly income from the time parties were married in 2001 to date.

25     I disallow the request in respect of this item. The Wife has, in her response, stated her monthly salary from the time parties were married to date.[note: 4] Her answer to the interrogatory posed is sufficient. It appeared to me that the Husband was disputing the sums that the Wife had declared – his point was that the Wife had, in her response, under-declared her monthly salary. However, as I have already mentioned, if there is any dispute as to the truth of the answer to an interrogatory, that is to be raised at the hearing of ancillary matters.

26     Item 4 required the Wife to confirm that she had the Husband’s ATM card for his POSB account in her possession, and that she had full access to the said account from the period between June 2017 to August 2019.

27     The Husband explained that he had deposited money into his POSB account whilst he was working in India. However, the money had, according to his bank statements, been withdrawn from an ATM near to the matrimonial home. In short – he suspected the Wife of taking withdrawing the money which he had deposited into this account.

28     I will allow the request in respect of Item 4. I am satisfied that it is relevant and necessary for the disposal of ancillary matters given the Husband’s allegation that the Wife had taken the money, which were the fruits of his labour. Further, the Wife’s response is also insufficient. She had given a bare denial that she does not have possession of the Husband’s ATM card. But there is another part to the interrogatory – that is whether she had full access to the said account from June 2017 to August 2019. The Wife has not given an answer to this.

Discovery

29     I turn now to the Husband’s request for discovery.

30     Item 2 was for documents evidencing cash payments made by the Wife towards the HDB flat from 1 August 2004 – 2010. The Husband argued that proof of the bank statements was necessary to confirm that the Wife had indeed made the cash payments which she claimed she had made.

31     In response, Ms Seetha said that the Wife had already disclosed the documents which the Husband sought in her 1st AOM.

32     I disallow the request. In considering an application for discovery, I must also consider the prejudice that is likely to be caused to the other party if an order to produce documents is made: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26(a)]. The documents sought went back to transactions that had taken place from 2004 to 2010. The Wife would face considerable difficulties in attempting to obtain these documents. In any event, the point of discovery is to ensure that the judge has all the relevant material for the disposal of the case. It is not meant to allow parties disprove assertions made by the other party by demanding documentary evidence.

33     I turn now to Item 5. The Wife had claimed that she had borrowed money from debtors to pay for the matrimonial home in India as well as legal fees for the divorce. According to the Wife, her sister had helped her repay this sum. She thus took out a loan from Standard Chartered Bank to repay her sister.[note: 5] Item 5 was a request for documents supporting the Wife’s claim concerning this loan. The Husband essentially wanted documents proving that the Wife had taken out a loan with Standard Chartered, and that that sum of money had indeed been used to repay her sister. He said that it was necessary for the Wife to provide proof that the money had indeed been transferred to her sister’s account.

34     Again, Ms Seetha said that the documents the Husband was asking for had already been disclosed.[note: 6]

35     Having had sight of the documents which Ms Seetha had referred me to, I note that the manner in which they had been presented was less than ideal. There were some 20 pages worth of what appeared to be receipts from HDFC bank disclosed in the Wife’s 1st AOM. Some of these receipts, the contents of which were handwritten, were barely legible. It did not help that the scanned images were grainy, and in some cases, blurred. As to what these receipts were, and what they were meant to show – the brief explanation provided in the Wife’s NIR was inadequate.[note: 7] It did not help that there was no explanation accompanying these receipts to provide some context, nor was there any pinpoint reference to these exhibits in the Wife’s 1st AOM.

36     As for the Husband’s request in respect of Item 5, that is disallowed. It is for the Wife to adduce evidence to support her assertion that she had borrowed money from her sister and that those sums were applied to the matrimonial home in India.

37     I come now to Item 6. These were documents evidencing that the sum of $9303.15 incurred on the HSBC credit card had been used for family expenses. The Husband explained that the statements were necessary because the Wife had stated, in her 1st AOM, that she had spent the sum of $9303.15 on her credit card.

38     Ms Seetha said that enquiries had been made with the bank and the Wife was informed that the statements which the Husband sought could not be obtained.

39     I will allow the request in respect of Item 6. Although the request could have been better framed, I am satisfied that these documents are indeed relevant to the disposal of ancillary matters in that they would shed light on the family’s expenditure as well as the Wife’s financial contributions. The Wife should, if she is indeed unable to obtain these statements from HSBC, exhibit documents (ie, a letter from the bank), evidencing the same.

40     Next on the list was Item 8. The Wife had taken out a loan with Maybank for the sum of $5000 to redeem her mother’s jewellery that had been pawned to support family expenses. Item 8 was the Husband’s request for documents to prove that such a loan had been taken out with Maybank and that the jewellery had indeed been redeemed.

41     The Husband said disclosure was necessary because the Wife alleged that she had transferred money to her sister’s account, but there was no proof of such transfers. Ms Seetha, on the other hand, urged me not to allow the Husband’s request as the Wife had already disclosed the relevant documents in her reply affidavit to this summons.

42     I disallow the request in respect of Item 8. Whether the Wife could prove that she had taken a loan from her sister was a matter for submissions at the ancillary hearing. It was not a basis on which discovery could be pursued.

43     That said, I do note that the Wife has disclosed some documents. The first, was a POSB bank statement. The second, was a deposit slip.[note: 8] While there is an explanation as to what the POSB statement was supposed to reflect, no such explanation was provided for the deposit slip. Apart from these documents, reference was also made to the 20 pages worth of receipts that I have described above (at [32]). As I have already mentioned (above at [32]), if the Wife intends to rely on these documents, they must be neatly organised, and where necessary, an explanation to provide context should be included.

44     Items 9 and 10 related to the Husband’s request for documentary evidence to support the Wife’s claim that she had received the sum of $25,000 and $5000 from pawning her wedding jewellery, and that these sums had been used for the downpayment of the HDB flat.

45     The Husband’s contention is that based on the gold prices then, it was simply inconceivable that the Wife had been able to receive those sums of cash. He therefore needed the documents to establish that the Wife had indeed obtained this sum of money which allegedly went towards the downpayment of the HDB flat.

46     I disallow the request for Items 9 and 10. The jewellery had been pawned more than 20 years ago. It would be difficult, if not impossible, to track down, and obtain such documents given the time that had passed. The extent of discovery that can be ordered is necessarily circumscribed by the practicality of obtaining the documents.

47     Item 11 was the Husband’s request for documentary evidence that the Wife had repaid the sum of $19,806.85 towards renovation of the HDB flat. The Husband explained that these documents were necessary to prove that the Wife had indeed paid off this sum.

48     I disallow the request in respect of Item 11. The Wife had already disclosed the relevant documents. This document which the Wife produced was a letter from Tan Kok Quan partnership, on behalf of the creditor bank, which was addressed to the Wife. Its contents are clear. It shows how the renovation loan had been paid off.[note: 9]

49     Item 12 was a request for documentary evidence that the Wife had taken a loan of $20,000 from her sister. The Husband explained that there was no proof of this loan.

50     I disallow the request in respect of Item 12. The Wife had stated, in her 1st AOM, that she borrowed money from her sister to pay off the India housing loan of $20,000.[note: 10] Again, it is for her to provide the necessary evidence in support of her assertion.

51     I will deal with the next two items together. Item 16 was a request for documents to support the Wife’s claim that she had given the Husband $7000 towards the discharge of his bankruptcy. Item 17 was a request for documents to support the Wife’s claim that the alleged sum of $7000 which she had given to the Husband was used by him to pay off the mortgage on the Indian matrimonial home.

52     These two items are related because the Wife had stated, in her 1st AOM, that she had borrowed $7000 from the Husband’s friend. She had tried to use this amount in an attempt to discharge the Husband from bankruptcy. The Public Trustee refused to accept this payment, and refunded the money. The Wife subsequently channelled this sum to the Husband who used it for the Indian matrimonial home.

53     The Husband has asked for these documents because he says he cannot accept the Wife’s version of events – he wants her to prove her assertions by producing documentary evidence.

54     While it is true that he or she who asserts must prove their case, that is a matter to be properly pursued at the ancillary hearing. The Husband had been reminded of this at a case conference prior to this hearing.

55     I therefore disallow the request in respect of Items 16 and 17.

56     The next few items can also be dealt with together:

(a)     Item 19 was a request for documents to show that the Wife had paid around $20,000 towards the family’s expenses. The Wife had stated, in her 1st AOM, that she had spent this money on the family’s trip to Singapore in 2015.

(b)     Item 21 was a request for documents showing that the Wife had paid the maid levy since 2007.

(c)     Item 23 was a request for documents evidencing the Wife’s sale of her land in India and the sums received from this sale, as well as documents showing that these sale proceeds had indeed been used to redeem the Wife’s bridal jewellery.

57     The common thread binding these three items is that whether the Wife had put forth evidence in support of her claims is, once again, a matter for submissions at the ancillary hearing. The discovery process is not a forum for one to challenge assertions or claims made by the other side by demanding that they provide documentary evidence.

58     I therefore disallow the request in respect of Item 19, 21, and 23.

59     I come now to the final item on the list: Item 24. This was a request for bank account statements for the POSB account ending 8410 for the period June 2017 to August 2019. It mirrored the Husband’s request for interrogatories (see [23] – [25] above).

60     I will allow the request. I am satisfied as to the relevancy and necessity of the document sought. The nub of the Husband’s contention was that the Wife had deposited the money withdrawn from his POSB account into her own account (ending 8410). These bank statements were therefore relevant and necessary to allow the Husband to trace the sums that had been withdrawn from his account.

Orders Made

61     I make the following orders in respect of SUM 975:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 2, 3, 4, and 5 of Schedule A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

62     As for SUM 1283, I make the following orders:

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 and 24 of the Request for Discovery annexed to this summons, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Wife shall answer the interrogatories as set out in Item 2, and 4 of the Request for Interrogatories annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

63     In addition to the above orders, I also order that compliance affidavits are to be filed by 21 June 2024.

64     As for costs, the Husband argued that he should be entitled to costs in respect of SUM 975 as well as SUM 1283. Ms Seetha on the other hand, said that she would leave the matter of costs to the court but highlighted the Husband’s conduct, in particular, the manner in which he had framed his requests.

65     These are the applicable principles relating to costs. They can be found in Rules 852 and 854 of the Family Justice Rules 2014. Costs are in the discretion of the court. If the court sees fit to order costs, the starting point is that costs follow the event. The court, however, can depart from this starting point, taking into account, amongst other things, the conduct of parties.

66     Apart from Rules 852 and 854, Rule 870 of the FJR 2014 is also relevant because the Husband is a self-represented person. Rule 870 provides that the court has the discretion to allow costs for a self-represented person that would be reasonable compensation for the time expended by him, together with all the expenses reasonably incurred: see VTQ at [81].

67     In respect of SUM 975, the Wife has substantially succeeded in her application. I also took into account the fact that the matter was not particularly complex. Costs are therefore fixed at $400 (all-in), to be paid by the Husband to the Wife.

68     As for SUM 1283, the Husband did not substantially succeed in his application. The matter was not particularly complex though I note that the Husband had sought both disclosure in respect of a number of documents as well as interrogatories. In the circumstances, costs are fixed at $450 (all-in) to be paid by the Husband to the Wife.

Conclusion

69     I conclude with one observation. The whole point of the discovery process is to ensure that all the necessary evidence relevant to the disposal of ancillary matters is before the judge hearing the matter: VTQ at [79]. The corollary of this is that these documents should be neatly organised and presented. If there are references to the documents in the affidavits or in submissions, pinpoint references should, as far as possible, be provided. If scanned copies of documents are provided, the onus is on parties to ensure that the images are clear, and that any handwriting is legible (see Practice Directions 110 and 112 of the Family Justice Courts Practice Directions). If the documents are in a foreign language, a certified translation must be provided. Parties do themselves no favours if they do not, at least, make an attempt to properly organise and present the documents on which they are seeking to rely.

[note: 1]Statement of Particulars (Amendment No. 1) at para 1(c).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1(h).

[note: 3]Wife’s Affidavit in support of SUM 975 at p 30.

[note: 4]Wife’s affidavit in reply to SUM 1283 at pp 81 – 82.

[note: 5]Wife’s 1st AOM at para 14(a).

[note: 6]Wife’s Reply affidavit to SUM 1283 at pp 28 – 29; Wife’s 1st AOM at pp 185 – 205.

[note: 7]Wife’s Reply affidavit to SUM 1283 at p 29.

[note: 8]Wife’s Reply Affidavit to SUM 1283 at Annex D.

[note: 9]Wife’s 1st AOM at p 72.

[note: 10]Wife’s 1st AOM at para 17(i)(1).

"},{"tags":["Family Law – Children – Variation of care and control","Family Law – Children – Variation of maintenance"],"date":"2024-05-28","court":"Family Court","case-number":"D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)","title":"WWA v WWB","citation":"[2024] SGFC 33","url":"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%2F31572-SSP.xml","counsel":["Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff","Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant."],"timestamp":"2024-06-03T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWA v WWB

WWA v WWB
[2024] SGFC 33

Case Number:D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)
Decision Date:28 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff; Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant.
Parties: WWA — WWB

Family Law – Children – Variation of care and control

Family Law – Children – Variation of maintenance

28 May 2024

District Judge Chia Wee Kiat:

1       In this decision, the Plaintiff shall be referred to as the “Mother” and the Defendant shall be referred to as the “Father”.

2       The parties were married on 7 June 2007.[note: 1] They have two children of the marriage, [H][note: 2] and [C][note: 3], aged 12 and 11 respectively. The parties and the children are all US citizens and Singapore Permanent Residents.[note: 4] The parties have been living and working in Singapore since June 2009, while the children were both born and raised in Singapore.[note: 5] The Mother is currently unemployed[note: 6] while the Father works as a Global Head of Enterprise Sales at a school.[note: 7] The children attend an international school in Singapore.[note: 8]

3       On 10 September 2019, the Mother commenced divorce proceedings.[note: 9] Interim Judgment was granted on 3 March 2020 with a consent order on all the ancillary issues.[note: 10] Pursuant to the consent order, the parties have joint custody of the children with care and control to the Mother and access to the Father.[note: 11] The consent order also provided, among other matters, that the Father shall pay the Mother monthly maintenance for the two children at $8,500 a month.[note: 12] Specifically, clause 3(e) of the Interim Judgment states as follows:

The Defendant shall pay the Plaintiff monthly maintenance for the 2 children at S$8,500 per month to be paid on the first day of every month by depositing this sum into her account at DBS with effect from the first of March. Prior to the commencement of the maintenance payment, status quo on financial provision shall continue until 29 February 2020. In addition, the Defendant shall provide medical insurance for the children and will bear the children’s medical and dental expenses to a maximum amount of S$20,000 a year. Non-insurable medical expenses above this amount of $20,000 shall be shared equally between parties. In addition, the children’s 529 college savings accounts shall be jointly managed by both the Plaintiff and the Defendant for the children’s benefit and welfare.

4       On 3 June 2020, Final Judgment was issued.[note: 13]

5       On 3 May 2023, the Father filed a variation application vide FC/SUM 1409/2023 (“SUM 1409”)[note: 14] to reverse care and control of the children to him and consequently for the Mother to pay the Father reasonable maintenance for the children.

6       On 30 August 2023, the Mother filed a cross application vide FC/SUM 2728 (“SUM 2728”)[note: 15] to increase the monthly maintenance for the children from S$8,500 to S$21,000 per month.

7       At the hearing on 8 November 2023, I called for a Custody Evaluation Report (“CER”) and reserved my decision. On 1 April 2024, having received and considered the CER, and having also given careful consideration to the parties’ submissions and affidavits, I made the following orders:

(a)     The parents shall have joint custody and shared care and control of the children.

(b)     The Father shall have care and control of the children from Thursday after school to Sunday 12pm.

(c)     The Mother shall have care and control of the children from Sunday 12pm to Thursday after school.

(d)     School holidays shall be split equally between the parents with such arrangements to be mutually agreed. The parents shall ensure that the children are accompanied by a domestic helper or a trusted adult who is familiar with the children while the children are in their respective care during the holidays.

(e)     The parents are at liberty to travel overseas with the children subject to giving the other party at least one month's notice of the duration of travel, itinerary of travel, including flight details, accommodation address and emergency contact details. The notice period may be shortened by consent of the parties. The Mother shall hand over the children's passports to the Father at least two weeks before his intended overseas travels with the children, and the Father shall return the children's passports back to the Mother within 48 hours of return to Singapore.

(f)     The parents may mutually agree to vary the care arrangements.

(g)     The maintenance for the two children at S$8,500 per month payable by the Father to the Mother is to remain.

8       On 15 April 2024, the Father filed a Notice of Appeal vide HCF/DCA 35/2024 against part of my decision. The Mother has since filed an application for an extension of time to appeal against my decision.

9       I set out my grounds of decision which incorporate and elaborate on the brief grounds rendered earlier.

The Father’s position

10     The Father says that since the conclusion of the divorce proceedings, the Mother has been drinking excessively and admitted herself to rehabilitation programme, although without success.[note: 16] He cites various incidents, such as one in late 2020 when the children informed him that the Mother passed out while dining with them at [Restaurant X] after consuming too much alcohol.[note: 17]

11     The Father says that the Mother’s conduct has been on a severe decline despite her attempts at rehabilitation and has got to the point that the Mother is unable to perform her parenting duties for the children.[note: 18]

12     The Father says that the Mother has been having suicidal thoughts and expressing her suicidal ideations to the children and the domestic helper.[note: 19]

13     The Father says that the Mother has been increasingly hostile towards him and the children. For example, she takes issue with the fact that the Father has moved on from the marriage and started a new relationship with his partner, who happens to be a Muslim.[note: 20] The Father says that the Mother unilaterally changes the children’s access plans without consulting him and this has in turn disrupted the children’s time with him.[note: 21]

14     The Father says that the Mother was high functioning and held high positions in her past employment, but has been unemployed since 2021. The Mother spends her time cooped up in her study at home and is also more reclusive, erratic, and prone to self-inflicted injuries/harm. The Father says that these are clear symptoms of the Mother’s worsening alcohol addiction and underlying mental health issues, contributing to her inability to be present with the children and perform her day to day tasks.[note: 22]

15     The Father believes that the children’s interests would be best served by having them reside with him and under his care.[note: 23] Consequently, the maintenance orders should also be varied for the Mother to pay reasonable maintenance for the children.[note: 24]

The Mother’s position

16     The Mother says that she resigned from her job with [Employer A] in 2016 to spend more time with the children and took up a role in 2018 with [Employer B] in Singapore. She has been unemployed since September 2021 to focus on her recovery.[note: 25]

17     The Mother says that parties came to an agreement on the children’s care arrangements after lengthy negotiations. Both were independently advised by respective lawyers and both knew what the circumstances were at the time they made the agreement and made the agreement knowing what the terms meant. Therefore the agreement and hence the consent order should be respected [note: 26]

18     The Mother says that parties agreed it would be in the best interests of the children that they remain in her sole care, as she had been their primary caregiver since they were born.[note: 27] Besides being a present and nurturing figure for the children, she also does her best to communicate with the Father in the spirit of being a committed co-parent.[note: 28]

19     The Mother says that the maternal grandparents are both retired and have time on their hands to help and are always more than delighted to spend time with the children.[note: 29] The Mother also has a very good support network at home. The helper has been a huge part of the children’s lives since 2014.[note: 30]

20     The Mother says that the children are thriving under the current care arrangement for the last 3 years.[note: 31] The Father’s time with the children actually fits in nicely with their current routine, and the children are accustomed to these access arrangements already.[note: 32] The children are well adjusted and enjoy their current routine. A reversal of the arrangements would cause a huge upheaval to the children, and would be highly and unnecessarily disruptive.[note: 33] A variation of the care and control orders would not be in the children’s best interests.[note: 34]

21     Further, the Mother says that the Father has not shown any material change in circumstances to warrant a variation.[note: 35] The Mother says that her struggle with alcohol in the past is no secret and the Father himself has been aware of this for a long time, even before the consent order was made.[note: 36] It was a personal problem which she confronted by going for therapy and occasional wellness retreat for a few days.[note: 37] These issues did not render her an unfit parent[note: 38], and the Father had consented to sole care and control being granted to her in the consent order despite knowing that the Mother faced these issues.[note: 39]

22     The Mother says that it is ironic that the Father harps so heavily on her issues with alcohol[note: 40] when the Father too has alcohol dependency issues for a long time and was in rehabilitation.[note: 41] The Mother says that the Father attended five weeks of treatment for his own issues with alcohol in early 2023 and would have hoped that the Father would have been more understanding given the common issues that they have both encountered in their lives.[note: 42]

23     The Mother says that it is untrue that the issues have worsened.[note: 43] She disputes the Father’s allegations that her conduct has been on a severe decline, that she is unable to perform her parenting duties for the children,[note: 44] or that she has been having suicidal thoughts or has been expressing suicidal thoughts to the children and the helper.[note: 45] The Mother says that she is sober and continues to work diligently to maintain her sobriety and to stay on the road of recovery. She has been working each week with two psychiatrists and a therapist at a very highly respected clinic.[note: 46] She exhibited a memo dated 28 June 2023 from her doctor which stated as follows:[note: 47]

[Mother] has been receiving treatment for her Mixed Depressive and Anxiety Disorder with associated Alcohol Use Disorder with Promises since Aug 2016.

I have taken over her treatment since 19 June 2023 for her Mixed Depressive and Anxiety Disorder and Alcohol Use. From discussion with her therapists and previous doctors in charge, we have advised her how to optimise the treatment for her Mixed Depressive and Anxiety Disorder. She was also advised to stop her stressful work to focus on her recovery from her mental health conditions and care for the children.

She has made progress and had been regular with her treatment since discharge. She is currently stable and we are monitoring her condition with regular blood tests. She is not suicidal nor violent and definitely not a threat to her children.

24     The Mother says the issues are under control, and her care of the children has not been adversely affected since the consent order was made.[note: 48] It saddens her that the Father has tried to weaponize her struggles against her, and at the expense of the children.[note: 49]

25     The Mother says that she cannot imagine life without the children in her care. The thought of the Father taking the children away from her primary care is unfathomable for her. She is already dealing with various personal issues, and if what the Father wants is granted to him, she is afraid that her recovery path may be derailed, because she would be completely devasted.[note: 50]

26     The Mother says that the Father’s attempts to discredit her ability to care for the children are based on bare allegations which are easily rebutted.[note: 51] The events that the Father has presented are embellished stories which have no bearing on her ability to care for the children. For example, contrary to the Father’s allegations, she was not drinking alcohol at Restaurant X, but has anaemia which causes her to faint.[note: 52] Furthermore, the Mother has always ensured that either she or a trusted adult figure would be looking after the children.[note: 53]

27     The Mother disputes the Father’s allegations that she turned more hostile towards him[note: 54] and says that she is committed to raising the children to the best of her ability with the Father.[note: 55]

28     The Mother says that the Father is not a suitable caregiver for the children.[note: 56] There is serious doubt as to whether it would be good for the children to be in the Father’s care and control and to live with him and his partner on a daily basis. The Father would not have any trusted adult to help with the care of the children, and whom the children are used to. This would be a major upheaval for the children. [note: 57]

29     The Mother says that the Father is also financially irresponsible and was so tardy in his payment of his credit card payments that his credit line was reduced.[note: 58] The Father is unable to provide the Mother with timely information in his travel plans with the children, which does not inspire confidence that the Father would be able to juggle all the many logistics of the children’s daily activities.[note: 59]

30     The Mother says that she does not have an issue with the Father moving on in life, but does have a valid concern with the Father exposing the children to new romantic interests in his life.[note: 60]

Analysis

Variation of care and control

31     Section 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”) provides as follows:

The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

[emphasis added]

32     In DDN v DDO [2024] SGHC(A) 2, the Appellate Division held as follows:

16 … in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

17    The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).

33     As the present case involves the variation of a consent order, the observations of Choo Han Teck J in VWQ v VWR [2022] SGHCF 5 (“VWG v VWR”) (at [9]) also bear reiterating:

Although the court has broad powers under ss 73, 119 and 129 of the Women’s Charter 1961 (2020 Rev Ed) to vary agreements on issues of custody and maintenance, such powers should be exercised sparingly and only in exceptional circumstances (AYM v AYL [2013] 1 SLR 924). Generally, a consent order is a contract negotiated and agreed upon by parties, and the courts would be slow to re-write their contract. Privately settled terms negotiated by the parties, especially in family matters are to be encouraged. As such, they should be respected, and not lightly changed. Otherwise, one party may lead the other to believe that obtaining a consent order would end their dispute, only to call in aid the provisions in the Women’s Charter to vary their agreement (TOC v TOD [2016] SGHCF 10) when they feel that the bargain was not to their liking subsequently.

34     Although the Mother’s position is that there is no material change in circumstances as the Father was aware of her struggle with alcohol even before the consent order was made, it is clear from a review of the evidence and the CER that the children are distressed and affected by her current condition.

35     While the court would be slow to re-write a consent order agreed upon by parties, there are concerns affecting the wellbeing of the children that need to be addressed. As noted above, the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child. The court must ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

36     In the present case, both parents have deficits due to their alcoholism. As alcoholism is a life-long mental health concern that the parents will require addiction treatment and ongoing aftercare, the reality is that either parent could experience relapses, especially given the heightened stressors due to the variation applications. The difference is that the Father appears to have coped better. He is able to sustain employment and function daily. He is open about his challenges and has demonstrated a willingness to acknowledge his own failings and work on them.

37     In contrast, the Mother, unfortunately, does not seem to be coping well. She is unable to sustain employment and has stopped work since September 2021 on the advice of her doctors and therapists to focus on recovery from her mental health conditions.[note: 61] The fragility of her mental state is worrying, as may be gathered from her insistence that she would be “completely devasted” if the Father is granted sole care and control of the children. She appears to lack insight and attunement to the children’s struggles and tends to focus on the Father’s deficits instead of taking accountability for her own.

38     While I empathise with both parents in the challenges they face, it is important for the parents to recognise that the children’s exposure to their alcoholism is a cause for concern as there is an impact on their current coping and future self.

39     I share some insights from the social science perspective. As noted in the CER, children in general need some structure and predictability. Their emotional and psychological wellbeing will benefit from a consistency of care for them to develop secure attachments. Unfortunately, when living with a parent with alcohol addiction, children tend to function in a survival mode as they have to tread carefully around the parent to avoid triggering the parent and to maintain peace. Additionally, children may become confused and potentially blame themselves when the alcoholic parent denies the addiction problem. Due to these experiences, children tend to be more rigid and inflexible, have anxiety, self-critical, have perfectionist traits, and hold back emotionally.

40     In the present case, there is an even greater need for the parents to be empathetic to the children’s struggles, given that both parents suffer from alcohol dependency issues.

41     In addition, the ongoing litigation has harmful effects on the children. In this regard, the following caution of Debbie Ong JAD in WBU v WBT [2022] SGHCF 9 (at [47]) bears reiterating:

Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible …

42     The parents need to rise above their own challenges and mitigate the stressors affecting the children.

43     As noted above, the Father presents as a functioning alcoholic. He is able to manage and attend to the children’s needs and has been proactive in engaging the school about the children’s coping and progress. The children cope better with the Father due to his mannerisms towards them and the stability that he offers. Although the Mother is the care and control parent, the children appear to rely on the Father for emotional support and safety.

44     As the Father is a stabilising presence in the lives of the children, he can provide support to the children by taking on greater responsibility in their care. Indeed, that is what the Father hopes to do. That said, I am mindful that a reversal of care and control would be too drastic and could deal a heavy blow to the Mother given her fragility. The children are worried about the Mother’s emotional and physical wellbeing and want her to get better. They care for the Mother and love her.

45     In my view, there is room for a more compassionate approach to be adopted – one that allows for the children’s needs to be addressed without discouraging the Mother and affecting her recovery. For this reason, I find that a shared care arrangement is preferrable to a reversal of care and control. Under a shared care arrangement, the Mother can take comfort in the fact that the care of the children is not “taken away” from her as she had feared. On the contrary, the children will benefit from the care given by both parents playing equal and complementary roles in their lives. The shared care arrangement is also consistent with the Mother’s commitment to raise the children to the best of her ability with the Father. The Mother will also have more time to focus on her recovery.

46     For these reasons, I ordered that the parents shall have joint custody and shared care and control of the children on the terms set out in [7] above. Additionally, as the parents and children can benefit from the mental health and therapeutic services provided by a mental health trained therapist under the POTS (Panel of Therapeutic Specialists) Programme, the parents were encouraged to consider entering into a consent order for this purpose so that a referral could be made.

Variation of maintenance

47     I turn now to the children’s maintenance.

48     In AYM v AYL [2014] 4 SLR 559, the Court of Appeal noted as follows:

15    In relation to variation of maintenance for children, the relevant provisions are in ss 72 and 73:

Rescission and variation of order

72.—(1)    On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit.

(2)    Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.

Power of court to vary agreement for maintenance of child

73.    The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child… notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.

Although the parties did not cite these provisions in their respective cases or submissions before us, we thought that we should make clear the basis for varying the maintenance of the Children if that is what we are minded to do.

16    Section 73 provides that any agreement relating to maintenance may be varied where the court is “satisfied that it is reasonable and for the welfare of the child to do so”. The parties did not address us at all on this requirement under s 73. But in our judgment, the provision is wide enough to encompass a material change in the circumstances of the parents as a basis for varying the maintenance for the child. Whether or not this should result in the maintenance actually being varied is of course a factual inquiry that depends on the circumstances of each case. In the present appeals before us, the parties addressed us solely on whether there were material changes in the circumstances. Nonetheless we also considered the provisions of s 73.

49     Sections 72 and 73, which fall under Part 8 of the Charter, are applicable to a maintenance order made under s 127(1) of the Charter by virtue of s 127(2).

50     As noted in VWG v VWR, the court’s powers to vary agreements on maintenance should be exercised sparingly and only in exceptional circumstances.

51     The Father says that at the time of the consent order, the parties agreed to share the children’s reasonable monthly expenses equally. As the children’s monthly expenses amount to about S$16,000, they agreed that the Father shall pay the Mother half of this sum a month for the children’s maintenance. Although he initially made an offer to pay maintenance of S$7,000 for the children, they eventually agreed to the sum of S$8,500, and this is reflected in the consent order.[note: 62]

52     The Mother says that the children’s school fees have been excluded from the children’s reasonable expenses since the consent order was made as her parents have been paying for that expense.[note: 63]

53     This is disputed by the Father as follows:[note: 64]

I am fully aware that the Plaintiff’s parents have been paying the children’s school fees directly at the Plaintiff’s instructions which is on all accounts, the Plaintiff’s prerogative, but this does not mean that I have not been contributing to the children’s school fees every month. I state that the existing maintenance sum of $8,500 includes provision for the children’s school fees and repeat the above.

54     The Mother says that her parents knew that the maintenance provided by the Father would be inadequate to maintain the standard of living which the children and the Mother were accustomed to and said that they would help pay for the children’s school fees if they live with her.[note: 65] However, the Mother did not produce any affidavit from her parents to support her claim nor did she produce any other corroborative evidence to show that the school fees were excluded from the computation of the children’s monthly expenses at the time of the consent order. In the circumstances, I found it difficult to accept the Mother’s bare assertion. In my judgment, it is more likely that the existing maintenance sum of $8,500 includes provision for the children’s school fees as stated by the Father.

55     The Father says that the children’s monthly expenses and needs have not changed significantly since the IJ, and there should not be any revision to the quantum payable for their monthly maintenance moving forward.[note: 66] He disagrees with the Mother’s assertion that the monthly expenses of the children have increased to the tune of S$21,000.[note: 67] The Father says that if he were to have care and control of the children, the Mother shall pay the children’s monthly maintenance amount of $8,500 to him.[note: 68]

56     Since the Father’s prayer for reversal of care and control is not granted, it follows that the Father’s prayer for the Mother to pay reasonable maintenance in the sum of $8,500 per month for the children must likewise be refused. While a downward adjustment to the quantum of the maintenance payable by the Father would have been warranted to take into account the fact that the children will now spend more time with the Father under the shared care arrangement, I note that the Mother has been unemployed since September 2021 on medical ground.

57     Balancing all factors, I found that it would be preferrable for the status quo to remain for now. Accordingly, I made no adjustment to the existing maintenance order.

58     Turning now to the Mother’s cross-application to increase the maintenance for the children, the Mother’s case is that at the time the consent order was made, she was working at Employer B and her gross monthly income in 2021 was $6,836.[note: 69] In September 2021, she resigned from her job[note: 70] at the advice of her doctor[note: 71] and has not gone back to the workforce since then.[note: 72] The Mother says that she no longer has an income or earning capacity.[note: 73] This is a material change in circumstances which warrants the Mother asking for the Father to pay the bulk of the children’s expenses amounting to S$21,000 per month. [note: 74]

59     The Father says that while the Mother claims in her affidavit that she is unemployed and insinuates that she is unable to obtain employment due to her depression and alcohol abuse, she in fact has represented that she has always been employed.[note: 75] The Father says that the Mother has failed to account for regular deposits to her DBS Multi Currency Autosave Account between the period February 2023 to May 2023, which suggests that she has undeclared sources of income.[note: 76] The Father alleges that the Mother is seeking to hide her actual income earnings and the full extent of her wealth.[note: 77]

60     The Father says further that the Mother’s doctor’s memo does not state that she is prevented from or unable to obtain other employment from her previous work at Employer B. Since being out of job in September 2021, the Mother has not shown any effort to obtain gainful employment.[note: 78]

61     It is an established principle that the financial obligations of parents depend on their financial capacity. As noted in WBU v WBT [2023] SGHCF 3 (at [38]):

… financial capacity need not be rigidly ascertained by sole reference to income alone. Consistent with s 69(4)(b) of the Charter, the court should consider the parties’ “income, earning capacity (if any), property and other financial resources”, as well as significant liabilities and financial commitments. For instance, a party who earns no income but has substantial savings or had received substantial inheritance would well be able to afford to bear a higher burden of the maintenance obligation, if reasonable in the circumstances of the case. The court should also have regard to the assets received by parties after the division of their matrimonial assets.

62     As the Mother is seeking to vary the maintenance order, the burden of proving the existence of a material change in circumstances rests with her: see AXM v AXO [2014] 2 SLR 805 (at [31]). The Mother says that she no longer has an income or earning capacity, though this is disputed by the Father. However, even taking her case at its highest, I found that she has not discharged the burden of proof. As noted above, the financial capacity of a party is not rigidly ascertained by sole reference to income alone. The court is required to consider the party’s property and other financial resources. A party who earns no income may well have property and other financial resources that could meet his or her maintenance obligation. As the Mother has not provided any evidence of her property or other financial resources, there is no basis for the court to form an accurate assessment of her financial capacity that would warrant a variation. Accordingly, I made no order on her cross-application.

63     As neither party has succeeded fully and having regard also to the need to reduce acrimony, I made no order as to costs.

[note: 1]Mother’s Written Submissions dated 7 November 2023 at [11].

[note: 2]Mother’s Written Submissions dated 7 November 2023 at [15].

[note: 3]Mother’s Written Submissions dated 7 November 2023 at [16].

[note: 4]Father’s Written Submissions dated 7 November 2023 at [6].

[note: 5]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [6].

[note: 6]Mother’s Written Submissions dated 7 November 2023 at [12].

[note: 7]Father’s Written Submissions dated 7 November 2023 at [7].

[note: 8]Father’s Written Submissions dated 7 November 2023 at [5].

[note: 9]Mother’s Written Submissions dated 7 November 2023 at [19].

[note: 10]Mother’s Written Submissions dated 7 November 2023 at [20].

[note: 11]Father’s Written Submissions dated 7 November 2023 at [9(a)-(c)].

[note: 12]Father’s Written Submissions dated 7 November 2023 at [9(g)].

[note: 13]Father’s Written Submissions dated 7 November 2023 at [10].

[note: 14]Father’s Written Submissions dated 7 November 2023 at [11].

[note: 15]Father’s Written Submissions dated 7 November 2023 at [12].

[note: 16]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14].

[note: 17]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(a)(i)].

[note: 18]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(i)].

[note: 19]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(ii)].

[note: 20]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(1)].

[note: 21]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(5)].

[note: 22]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iv)].

[note: 23]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [15].

[note: 24]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [17].

[note: 25]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128].

[note: 26]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [13].

[note: 27]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [15].

[note: 28]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [34].

[note: 29]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [35].

[note: 30]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [36].

[note: 31]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [31].

[note: 32]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [33].

[note: 33]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [37].

[note: 34]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 35]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 36]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [41].

[note: 37]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 38]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 39]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [44].

[note: 40]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 41]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [46].

[note: 42]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 43]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 44]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [93].

[note: 45]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [117].

[note: 46]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [48].

[note: 47]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at p 180.

[note: 48]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 49]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 50]Mother’s Supplementary Affidavit (SUM 1409) filed on 31 August 2023 (“PA2”) at [19].

[note: 51]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 52]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [52].

[note: 53]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [131].

[note: 54]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [86].

[note: 55]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [118].

[note: 56]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at (3) at p 49.

[note: 57]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [122].

[note: 58]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [134].

[note: 59]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [135].

[note: 60]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [121].

[note: 61]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128] & p 180.

[note: 62]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [16].

[note: 63]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 64]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [18].

[note: 65]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 66]Father’s Written Submissions dated 7 November 2023 at [32].

[note: 67]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [19].

[note: 68]Father’s Written Submissions dated 7 November 2023 at [31].

[note: 69]Mother’s Written Submissions dated 7 November 2023 at [94].

[note: 70]Mother’s Written Submissions dated 7 November 2023 at [95].

[note: 71]Mother’s Written Submissions dated 7 November 2023 at [97].

[note: 72]Mother’s Written Submissions dated 7 November 2023 at [96].

[note: 73]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 74]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 75]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 76]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 77]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 78]Father’s Written Submissions dated 7 November 2023 at [38].

"},{"tags":["Family law – Variation of Ancillary Matters Orders – Care and control – Access"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce Suit No. 155 of 2018","title":"UYN v UYO","citation":"[2024] SGFC 30","url":"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%2F31570-SSP.xml","counsel":["Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother","Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father."],"timestamp":"2024-05-30T16:00:00Z[GMT]","coram":"Michelle Elias Solomon","html":"UYN v UYO

UYN v UYO
[2024] SGFC 30

Case Number:Divorce Suit No. 155 of 2018
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Michelle Elias Solomon
Counsel Name(s): Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother; Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father.
Parties: UYN — UYO

Family law – Variation of Ancillary Matters Orders – Care and control – Access

27 May 2024

District Judge Michelle Elias Solomon:

Introduction

1       The parties in these proceedings were formerly husband and wife. In these Grounds, I shall refer to the parties as the Mother, who is the Plaintiff, and Father, who is the Defendant. The Mother and Father (“the Parties”) have one child, A, who was born in 2016.

2       The Parties were married in 2014. The Mother commenced divorce proceedings in 2018 and the Interim Judgment was granted that year. I made orders in respect of the ancillary matters on 25 March 2019 (“the Ancillary Order[note: 1]”), which granted, among others, care and control of A to the Mother and reasonable access to the Father. Both Parties, being dissatisfied with parts of my decision, filed cross-appeals[note: 2]. Both appeals were dismissed in October 2019.

Background and previous applications

The 1st Variation Application

3       After the Final Judgment was issued, the Father filed two applications to vary the Ancillary Order. The first application[note: 3], filed in December 2019, sought a variation of the access orders in the Ancillary Order (“the 1st Variation Application”). The 1st Variation Application essentially sought to:

(a)     Start Monday access one hour earlier.

(b)     Extend overnight access to 2 nights per week (instead of 1 night per week).

(c)     Include Deepavali in the reckoning of Public Holidays.

(d)     Allow Parties to take A overseas irrespective of whether there were school closures.

(e)     Include orders for birthday access, being present at A’s medical check-ups and the Parties’ parents assisting with A’s handovers.

4       I dismissed the 1st Variation Application but made the following orders in addition to, and to be read with, the Ancillary Order:

(a)     Each parent shall update the other on A’s medical issues within two days of receiving such update (or within two days of the doctor’s visit, as the case may be).

(b)     The parent who does not have care of A on her birthday will have her birthday dinner with her from 6:30 p.m. – 8:30 p.m. on A’s birthday.

(c)     The parents of the Father and Mother shall be at liberty to assist the Father and Mother with access handovers.

5       The orders in respect of the 1st Variation Application were granted on 1 June 2020 (“the 1st Variation Order”). There was no appeal filed against the 1st Variation Order.

The 2nd Variation Application

6       The second variation application[note: 4] was filed in May 2021, less than a year after the 1st Variation Order was granted (“the 2nd Variation Application”). The 2nd Variation Application sought to expand overnight access from one to three nights and reduce maintenance for A. I dismissed the Father’s application to reduce A’s maintenance but increased overnight access from one night to two nights, ordering that the Father have access to A every Thursday after school to Saturday 6:30pm each week. I also made some orders on Father’s / Mother’s Day and birthday access.

7       The orders in respect of the 2nd Variation Application were granted on 21 February 2022 (“the 2nd Variation Order”). There was no appeal filed against the 2nd Variation Order.

Primary One Registration Application

8       Parties could not agree on which primary school A ought to be registered in. I heard and made orders on the Mother’s application in respect of Primary One Registration, granting an order for the Mother to decide on A’s primary school in May 2022. There was no appeal filed against this order.

The current application and orders made

9       The current application to vary the Ancillary Order and 2nd Variation Order was filed by the Father. The table below summarises the changes sought:

S/no

Order to be varied

Current order

Changes sought by Father

1

The Ancillary Order[note: 5]

The Mother shall have care and control of A with reasonable access to the Father.

The Mother and Father shall have

shared care and control of A[note: 6].

2

The 2nd Variation Order[note: 7]

(a) The Father shall have access every Tuesday from 6:30 pm to 8:30pm.

(b) The Father shall have access every Thursday after school to Saturday 6:30pm (overnight access).

(a) The Father’s care and control of A to be from Wednesday after school to Saturday 6:30pm.

(b) In the alternative, the Father’s Tuesday access be varied to the following: pick A up on Tuesday 6pm and drop off on Wednesday morning at school. The Father to be responsible for A’s pick up and drop off.

(c) Daily video call access to A for the parent who is not with A. Video call not to exceed 15 minutes and to be done prior to A’s bedtime. This would apply to the Mother if A is under the care of the Father[note: 8].

3

The Ancillary Order

Clause 1(f): Every alternate Public Holiday from 10.00am to 8.00pm.

The inclusion of the following clause:

(i) For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm[note: 9].

4

n/a

n/a

The inclusion of the following clauses:

(i) An order prohibiting the Mother and/or her family members from smoking and/or vaping in the presence of A.

(ii) An order prohibiting the Mother from describing to A her relationships with men as ‘sugar daddies’[note: 10].



10     On 6 February 2024, I delivered my decision[note: 11], allowing the Father’s application in part as follows:

The Order of Court dated 25 March 2019 shall be varied in the following manner-

(a)       The following sentence shall be inserted immediately after Clause 1(f) –

For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

(b)       Apart from the orders made herein, all other prayers in FC/SUM 1702/2023 are dismissed.

(c)       The Parties shall continue to attend divorce counselling and co-parenting programmes.

(d)       Liberty to apply.

11     The Father appealed against part of my decision[note: 12], specifically, the dismissal of his prayers for shared care and control, further changes to access, orders prohibiting vaping / smoking in front of A and an order prohibiting the Mother from describing to A her relationships with men as “sugar daddies”. I now provide the grounds.

The evidence and submissions

12     The following affidavits and submissions were filed for the current application:

(a)     F1 – Father’s affidavit filed on 29 May 2023;

(b)     F2 – Father’s supplementary affidavit filed on 16 Jun 2023;

(c)     F3 – Father’s affidavit filed on 4 Sep 2023;

(d)     Father’s written submissions filed on 9 Oct 2023;

(e)     Father’s letter dated 23 Oct 2023 with submission on electronic evidence;

(f)     M1 – Mother’s affidavit filed on 4 Jul 2023;

(g)     M2 – Mother’s affidavit filed on 17 Oct 2023;

(h)     Mother’s written submissions filed on 9 Oct 2023;

(i)     Mother’s letter dated 17 Oct 2023 with submission on electronic evidence.

13     I now move on to the Parties’ cases.

The Father’s Case

14     According to the Father, there were several factors which formed the basis for a material change in circumstances, and that this change warranted a variation of the Ancillary Order and the 2nd Variation Orders. He also argued that a material change of circumstances was often the result of a confluence of factors and not simply precipitated by a single event[note: 13].

15     The Father contended that the application was necessary for several reasons, including that A was growing fast and required an adjustment in terms of orders relating to care, control, access etc[note: 14]; it was because of inaction or impasse that the Father sought the assistance of the court[note: 15]. In support of his position, he raised the following:

(a)     A’s welfare was no longer well served by the current orders[note: 16] and she wished to spend more time with the Father[note: 17].

(b)     A was older and in primary school. She had greater demands now and was able to cope with more overnight access and had the capacity to do more activities[note: 18].

(c)     Parties could cooperate and were not acrimonious[note: 19].

(d)     He was a committed father, not missing a single access session and aspiring to be a more involved parent. He had taken positive steps to prioritise A and had left his previous job to be able to be increasingly involved in A’s life[note: 20]. He now worked at a bank which allowed flexible work hours and work-from-home arrangements resulting in more time and availability for A[note: 21].

(e)     Aspects of the Mother’s lifestyle were not favourable to A’s upbringing[note: 22] and she had work-related commitments resulting in her spending less time with A[note: 23].

16     In support of his application for shared care and control, the Father raised the following:

(a)     Shared care and control would allow for better equanimity between parents when dealing with matters relating to A; shared care and control also had a bearing on A as she would be able to witness more co-operation and respect between her parents[note: 24].

(b)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 25].

(c)     Shared care and control would prevent the Mother from using the excuse that she can dictate matters, just because she had sole care and control[note: 26].

(d)     Under the present care and control orders, the Father’s access was treated as a burden that the Mother had to tolerate. The Mother did not value the Father’s contributions and/or burdens in relation to picking up and dropping off A and acts unilaterally to curtail Father’s access[note: 27].

(e)     Besides improving the imbalance, shared care and control would allow the Father more access time with A. This is coterminous with A’s desire to have more time with the Father and for the Father to be more involved in her life. This would eventually be in A’s benefit as she would see both parents as equal stakeholders in her formative years, and would appreciate the fact that both parents played an equal role in her life[note: 28].

(f)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 29].

(g)     This application presents an opportunity for consideration of variation of its terms to allow A to continue growing under the joint care and control of the parents; shared care and control was therefore suitable for this family[note: 30].

17     The Father also sought overnight access to be increased from 2 to 3 times per week[note: 31] for the following reasons:

(a)     A was 7 years old; this increase in age and maturity was in itself, a material change in circumstances[note: 32].

(b)     The present two-hour Tuesday access was very rushed[note: 33] and it was unfair and stressful for A. Now, in primary school, she takes longer to eat, needs time to do her homework, wants to spend time with her grandparents and needs to use the washroom before she leaves for the Mother’s residence[note: 34]. The Father constantly ends up sending A back between 8:30pm to 8:45pm on Tuesday evenings and both risk facing the wrath of the Mother during drop off[note: 35]. Due to the Mother’s work schedule and her constant desire in wanting to limit Father’s access, A is the one who bears the brunt of it. It is not fair to A that she has to endure being rushed when it is clearly not her fault; A is just growing up[note: 36].

(c)     The Mother uses the delays in handover to intimidate the Father with sanctions and threats of reducing access[note: 37].

(d)     Having overnight access from Wednesdays after school to Saturdays 6:30pm will allow the Father to leverage the work flexibility accorded and to do more for A, allowing him to be more involved in her life[note: 38].

(e)     Straight through access without any disruption prevents a nomadic situation for A on Tuesdays[note: 39].

(f)     Alternatively, instead of overnight access commencing on Wednesday after school, there should be overnight access on Tuesdays starting at 6pm[note: 40]. However, either way, the Father sought an order for shared care and control [note: 41].

18     The Father also stated that Parties were not acrimonious[note: 42], citing the following:

(a)     Parties were able to cooperate[note: 43] and A’s teachers observed that both parents were doing a “very good job in raising A”[note: 44].

(b)     When the Mother’s grandmother passed away, the Father had gone out of his way to be civil and respectful, sending the Mother a condolence message to help her get through the loss and asking for permission to attend the wake. The Father characterised this as the “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 45].

(c)     Cooperation was exhibited when A was presented on her first day at her new school; both the Mother and Father were beaming with pride[note: 46].

19     In the current application, the Father also sought:

(a)     Video access, as it was important for A to know that she could speak to either of her parents on the days she does not see them without any fear[note: 47].

(b)     Deepavali access, in that the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A[note: 48].

(c)     Orders prohibiting the Mother from smoking and/or vaping in the presence of A. This is because, according to him, A had shared that the Mother, the Mother’s mother, and the Mother’s father would vape or smoke in front of A. According to the Father, A revealed this to him during a casual conversation which he recorded and transcribed.

(d)     An order prohibiting the Mother from referring to her male counterparts as “sugar daddies” when speaking to A. The Father believes that A will come to have a negative view of relationships with men, and may believe that relationships with men should be modelled after the Mother, which involves someone buying expensive items for her[note: 49].

20     For all these reasons, the Father sought to vary the care and access orders.

The Mother’s Case

21     The Mother disagreed to the variations sought by the Father, contending that he had failed to establish a material change in circumstances[note: 50] and abused the court’s process by relitigating matters that had already been adjudicated[note: 51]. In support of her position, she raised the following:

(a)     The Father’s personal desires did not satisfy the threshold of material change in circumstances[note: 52]. The focus of the Father’s applications had been, and continues to be, his desire for increased access with A while curtailing the Mother’s access and treating access arrangements as a competition[note: 53].

(b)     The Father accepted that the current arrangement had allowed him to play a greater role and be more involved in A’s life[note: 54].

(c)     The present access arrangement provided the Father with much more uninterrupted access with A compared to the Mother, and to allow additional overnight access would be detrimental and much too soon for A who was heavily dependent on the Mother for emotional and physical support[note: 55]; any changes to the access arrangement should be gradual and considered only when there is a material change in circumstances[note: 56].

(d)     The Father’s prayers for overnight access were similar to the prayers sought in the 2nd Variation Application[note: 57]. This was the third application filed by the Father, and the Mother has essentially had to return to court every year[note: 58], preventing the Parties from being able to move on and resulting in a waste of time and resources for the court[note: 59].

(e)     The Father’s insistence on filing unmeritorious variation applications every other year have subjected the Mother to overwhelming legal costs[note: 60]. Just because a bit of time has passed since the dismissal of the earlier application did not amount to a material change in circumstances warranting a variation of the access orders[note: 61].

(f)     The prayers for video access were essentially the same as in the 2nd Variation Application, save that it was reduced from 20 minutes to 15 minutes[note: 62].

(g)     The court should be cautious in varying access orders as there had to be finality to this case[note: 63]; the Father’s want for more access would keep resulting in an application to court each year, with the history of this case showing that every year, there had been an application filed by the Father[note: 64].

22     The Mother disagreed with additional overnight access, maintaining that A was only now getting fully accustomed to the current access arrangements and, coupled with the demands of school and CCA, any changes would result in A having too much on her plate[note: 65]. Additionally:

(a)     The court has already increased the Father’s access in the previous application; any further changes would be unfair to the Mother and not in A’s best interests[note: 66] as it would affect her emotional stability and sense of security given that the Mother had been A’s primary caregiver since her birth[note: 67].

(b)     A cries every time she has to go for access and it is difficult for her; the Mother has invested time and effort to positively reinforce to A that she should view her current living arrangements as an advantage[note: 68]. However, A is still struggling to cope with spending less time with the Mother and voiced on several occasions to the Mother that she was reluctant to spend more time with the Father at the expense of her time with the Mother[note: 69].

(c)     The Mother has tried to alleviate the rush on Tuesdays, but this has fallen on deaf ears; any rush on Tuesdays is therefore self-induced and the Father should not be allowed to benefit from his lack of cooperation and adamance[note: 70]. If there are any changes to be made, it should be to eliminate access on Tuesdays[note: 71].

23     The Mother also disagreed to orders being made for shared care and control, raising the following.

(a)     The Father had launched a slew of accusations and personal attacks against the Mother and her family members[note: 72] to convince the court that shared care and control should be granted.

(b)     It was painfully obvious that A has been coached by the Father[note: 73], who had employed unscrupulous means to obtain this ‘evidence’ and solicited answers from her[note: 74], which he claims were by mere coincidence[note: 75]. The Father’s questions to A were structured in a way to elicit his desired responses from her and the Father continued to press A for responses that fit his narrative[note: 76]. There were also times when A disengaged from the topic and spoke about unrelated matters, but the Father continued to reel her back into the conversation, clearly evincing his intention to have the conversation on tape[note: 77].

(c)     The Father’s penchant for disseminating falsehoods was, in itself, a reason why care and control should not be varied as it was clear that the Father wished to disparage the Mother and the Mother’s family members[note: 78].

(d)     Contrary to Father’s statements that the Mother was not a good role model to A, it was the Father who has failed to provide a safe environment for A that does not affect her perception of the Mother and her family[note: 79].

(e)     The Father has encouraged A to address the Mother, grandmother and grandfather by their names instead of using the proper terms of respect[note: 80], and has done nothing to correct her behaviour[note: 81] in this regard – this was evidenced by their interaction in the audio recordings.

(f)     The Father’s actions have forced A to be in the centre of tension between the Parties and the Father has failed to be able to separate his prejudice against the Mother and/or her family members from what is important for A[note: 82].

24     In defending the orders on video / Deepavali access and orders prohibiting her from certain acts, the Mother maintained that these prayers should be dismissed with costs[note: 83] and raised the following:

(a)     There had been no material change in circumstances in respect of video call and Deepavali access[note: 84].

(b)     The prayers seeking prohibitory orders were not within the ambit of a variation application; there were also no reasonable grounds to do so[note: 85]; the Mother was cognizant of the laws of Singapore and none of her family members or her vape, let alone possess a vaping device[note: 86].

(c)     The Father was seeking to prohibit the actions of the Mother and her family members without any reasonable grounds and in the absence of compelling evidence[note: 87]. There exists a procedural irregularity[note: 88] in this regard and the kind of injunction the Father seeks was also unclear[note: 89]. These prayers were also sought against persons who were not parties to these proceedings and the court had no right to make orders in this regard[note: 90].

(d)     The Mother filed a Notice of Objection[note: 91] setting out her reasons for objecting to the various audio recordings. She challenged the authenticity, validity, legality and admissibility of the transcriptions; A was never aware of herself being recorded and the Father transcribed these audios on his own[note: 92].

(e)     The Father brazenly recorded A’s schoolteachers during the Meet-the-Parents session on 26 May 2023; it was unclear if A’s teachers were aware they were being recorded or that this was going to be adduced as evidence in court proceedings[note: 93].

(f)     The Father was looking for ways to portray the Mother and her living environment for A as dangerous and undesirable for A without any evidence[note: 94].

(g)     The term ‘sugar daddy’ was used inadvertently in A’s presence on a single isolated occasion[note: 95]; the Father was always fishing for information from A and embellishing the truth in doing so, demonstrating how low he would go in portraying the Mother in negative light and/or as an unfit parent[note: 96].

25     For all these reasons, the Mother contended there were no reasons to vary access orders again; there needed to be finality to this case[note: 97] and the Father had not established a material change in circumstances warranting a variation of the current orders. As the Father simply treated such variation applications as a ‘backdoor’ appeal to relitigate[note: 98], the Mother sought a dismissal of the Father’s application with costs[note: 99].

Issues to be determined and the applicable law

26     The starting point in determining variations to care orders made under the Women’s Charter is s. 128[note: 100] which reads:

Power of court to vary order for custody, etc.

128.  The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

27     On the issue of shared care and control, VJM v VJL and another appeal [2021] SGHCF 16[note: 101] (VJM v VJL) noted:

Whether shared care and control was suitable for a particular family depended on the precise facts and circumstances of each case. There was neither any legal principle against shared care and control, nor a legal presumption that such arrangement was always in a child’s welfare[note: 102].

28     The issues for determination were:

(a)     The admissibility of the Father’s audio evidence which the Mother disputed; and

(b)     Whether there was a material change in circumstances warranting –

(i)       the variation of the Ancillary Order and the 2nd Variation Order on care and control; and

(ii)       additional orders to be made, including access orders for Deepavali and video calls.

29     I will deal with each issue in turn.

The admissibility of the Father’s audio evidence

30     In support of his case, the Father adduced various transcripts of audio recordings, which he recorded on his own, of conversations between:

(a)     A and himself; and

(b)     A’s teachers and himself.

31     The Mother challenged the admissibility of the transcriptions, contending that this evidence was hearsay[note: 103]. I was unable to agree. This was the Father’s own evidence; he participated in these conversations and recorded them, on his own, using his own device. He also transcribed these recordings. The transcriptions were therefore, in my view, not hearsay.

32     I now move on to the accuracy of the transcriptions. Apart from contending that the transcriptions did not capture the full conversations in question, the Mother did not challenge the accuracy of the transcriptions. This means that whatever was said and heard on the audio clips was scripted[note: 104] appropriately for the portions that were transcribed. During the hearing, the Father’s counsel also played this audio evidence for me to hear; I did not note any material discrepancies between what I had heard and what was transcribed. In my decision, however, I have relied on none of this evidence for several reasons.

33     Firstly, the Father’s evidence was vague as to whether A was aware that her conversation was being recorded. The Father provided this context to the recording:

A has informed me on several occasions that the Plaintiff, the Plaintiff’s mother, and the Plaintiff’s father vape or smoke in front of her while she is at the Plaintiff’s home. A revealed this to me for the first time on 1 April 2023. This was brought to my attention during a casual conversation in the car with A. I did not solicit this from A. As there is a recording device in my car, it captured what A had told me and I have transcribed the conversation[note: 105].

[emphasis in original]

34     I had great discomfort relying on such evidence; in my view, it was tantamount to overhearing a private conversation between A and her father that was only meant for her father’s ears, and then using the information in these proceedings. I also took this view when dealing with the Father’s recorded conversation with A’s teachers. Again, it was unclear if the teachers were aware that they were being recorded. The Father provided this context to the recording:

In relation to the Mother’s claim that parties cannot co-operate and there is danger to A’s well-being, my communication with A’s form teachers during the recently concluded mid-term meet the parent session on 26 May 2023 will clearly show that the Mother is making things up. During the session, I had asked A’s form teachers … the following: (a) knowing A’s parents are divorced, is there something to be concerned about in terms of A’s behaviour; (b) to identify whether A is lacking in certain areas; (c) whether A is coping well with school. Her teacher commented with confidence that both me and the Mother are doing a very good job in raising A, we are coparenting well, and there are no areas A is lacking emotionally. She also added A is doing well socially. When I asked if there is any advice on how else I can support A, her teacher mentioned I am doing a good job thus far and just for A to continue reading more books[note: 106].

[emphasis in original]

35     Following my concerns about this approach to obtaining evidence, I was not prepared to give weight to such evidence. In truth, if the Father was concerned about contents of a private conversation he had with A about vaping or smoking, the first port of call should have been to engage the Mother directly over these concerns, not write about it in affidavits that were filed in court. Further, if the Father’s relationship with the Mother was as cordial as he claimed, this would have happened organically. However, the evidence did not show any attempts to engage the Mother in meaningful discussion on his concerns, making it at odds with the Father’s submissions that –

(a)     the Parties could cooperate and were not acrimonious[note: 107]; and

(b)     A would be able to witness more co-operation and respect between her parents[note: 108].

36     Finally, if the Father considered it necessary to obtain evidence from A’s teachers stating their views on A’s progress in school for use in these proceedings, he could have requested a note from the teachers in this regard. The Father has not explained the necessity of recording his conversation with the teachers to achieve this objective. For all these reasons, I was unable to place any weight on the Father’s audio evidence and the corresponding transcripts.

Care and control / access orders ought not to be varied

37     I was unable to find that the orders on access or care and control should be varied. Firstly, the last round of orders made for this case envisaged A entering Primary One. In arriving at my decision in the 2nd Variation Application, I was cognizant of the Parties’ parenting journey in the years prior, and what was to follow in the coming year. I was therefore unable to place much weight on A being older and in primary school[note: 109] as a factor constituting material change, as this event was a foreseeable one when granting the 2nd Variation Order.

38     Secondly, the Father’s assertions that Parties could cooperate and were not acrimonious[note: 110], or that this application was not a result of acrimony[note: 111], was not born out in evidence. The affidavits were riddled with allegations by one parent against the other over their speech and conduct, including what was said and/or done in front of A. Each accused the other of behaving unreasonably while maintaining that they themselves had been reasonable. I therefore remained unpersuaded by the Father’s submission that the Mother was using acrimony for self-serving purposes[note: 112].

39     Thirdly, I noted the Father’s submission that this application had become necessary because A was growing fast and required an adjustment in terms of care orders[note: 113]. However, these were not circumstances under which the court’s powers ought to be invoked. Indeed, if every order needed to be varied simply by virtue of children growing older, there would be an endless stream of applications in every case before the court. This submission was also not consonant with empowering parties to coparent post-divorce.

40     Fourthly, I was of the view that there was no need for an order of shared care and control for A to view both parents as equal stakeholders, or to appreciate the fact that both parents played an equal role in her life[note: 114]. Such views could, and should, be cultivated through functional coparenting and the Parties’ attitudes towards each other; how they gave effect to the court order was important. In this regard, I noted the court’s observations in VJM v VJL:

I had made it clear in TAU v TAT that shared care and control is different from joint custody; the former relates to the child living with both parents, while the latter is about joint decision-making over major decisions affecting the child” (TAU v TAT at [11]). The legal concept that upholds the equal parental responsibility and importance of both parents to the child is “joint custody”. Joint custody requires both parents to recognise and respect each other’s joint and equal role in supporting, guiding and making major decisions for their child. Joint custody assures the child that both her parents continue to be equally present and important in her life.

[emphasis added]

41     In this case, the Parties agreed on joint custody from the outset[note: 115]. Their joint and equal roles in supporting, guiding and making major decisions for A have therefore never been in doubt, and the Father had not demonstrated the necessity of a shared care and control order to achieve this objective. There was also nothing in evidence to suggest that A’s welfare was no longer well served by the current care orders. In fact, according to the Father’s own evidence:

(a)     His access from Thursday to Saturday had not disrupted A’s development and there were no adverse reports from the school; on the contrary, A was growing steadily at school[note: 116].

(b)     A was thriving at every level under the latest arrangements and is growing up nicely[note: 117].

(c)     There were no issues relating to logistics, schoolbooks, clothes, meals, or meetings with the teachers[note: 118].

42     In the circumstances, the Father had not demonstrated how his proposed changes were in A’s welfare and best interests. I was also unable to find evidence which supported the following submissions by the Father –

(a)     His access was treated as a burden that the Mother had to tolerate;

(b)     The Mother did not value his contributions in relation to picking up and dropping off A; and

(c)     the Mother acted unilaterally to curtail his access[note: 119].

43     Next, much fuss was made over Tuesday access, which was designed to be a simple mid-week meet up between father and daughter to share a meal until they met on Thursday for overnight access. Sadly, even this two-hour window caused much spilled ink in the Parties’ affidavits. My view is this: the Father may use the two hours as he sees fit; this is a matter of time management and not a reason to lengthen access, grant overnight access or vary care and control. These are fairly typical mid-week dinner access orders, and the Father had raised nothing in evidence that would justify a variation of these orders.

44     Finally, the Father had not demonstrated how his employment changes gave rise to the necessity to vary the orders. In short, the Father’s evidence and submissions did not support his contentions that A’s welfare was no longer well served by the current orders[note: 120], and I remained unpersuaded that it was in A’s welfare to vary the orders on care and control and access.

Difficulties with the Father’s case

45     I also had several difficulties with the Father’s case. Firstly, the Father relied on several general statements in support of his case. These included the following:

(a)     Shared care and control will prevent the Mother from using the excuse that she can dictate matters, just because she has sole care and control[note: 121].

(b)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 122].

(c)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 123].

46     My view is that challenges over meaningful cooperation and the perceived inferiority of the non-care parent arise only from Parties’ conduct, not the language of a court order. These are not reasons to vary care and control. Secondly, I noted the Father’s submission that he had gone out of his way to be civil and respectful by sending the Mother a condolence message when she lost her family member, describing himself as having engaged in a “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 124]. While I appreciate the efforts of the Father, my view is that such communication should have occurred in any event – after all, the person who had passed away was his own daughter’s great-grandmother. The fact that he had to “go out of his way” to communicate with the Mother under such circumstances only serves to demonstrate the challenges still present in the Parties’ relationship.

47     I had the same difficulties with the Father’s description of A’s first day at school as an example of Parties’ cooperation, which he described as “…cooperation exhibited when A was presented on her first day at (her new school). Both Mother and Father were beaming with pride[note: 125]”. I was heartened to learn that the Parties enjoyed this special day with A. However, for divorced parents to put their differences aside for a few hours on the first day of their child’s new school, or to agree on video call timings in lieu of access because their child had Covid[note: 126] - another example of cooperation cited by the Father - represents, in my view, the bare minimum of coparenting; in short, the court would expect nothing less from parents and these are not sufficient reasons, individually or cumulatively, that would constitute a material change in circumstances that would warrant a variation of the care and control order.

48     Thirdly, the language used by the Father in his criticisms of the Mother and her conduct did not inspire confidence in his assertions that Parties were not acrimonious[note: 127]:

(a)     “…the Mother’s arguments … are shrouded in obtuse logic and shallow concerns for A[note: 128]”.

(b)     “… there are lax rules at the Mother’s home and … order and common sense is waning[note: 129]”.

(c)     The Mother’s “constant desire in wanting to limit Father’s access[note: 130]”.

(d)     “..risk facing the wrath of Mother during drop off[note: 131]…”.

(e)     “… Mother uses the delays in handover to intimidate Father with sanctions and threats of reducing access[note: 132]…”.

(f)     “..Mother does not know what suitable care arrangements for A are and is just trying to unnecessarily resist Father’s summons. This unfortunately is the sad reality of the parent with sole care and control – the inability to realise that or to understand that parenting is not a zero-sum game[note: 133]”.

(g)     “…absence of such a holding would embolden Mother to continue pulling wool over the Court’s eyes and to damage A’s upbringing with a misaligned compass[note: 134]”.

(h)     “She has attempted to trigger Father to respond in anger as part of a deliberate tactic to increase acrimony[note: 135]”.

(i)     “She has abused her position as care and control parent…[note: 136]”.

(j)     “…gives me the impression that there is no bond between A and her family in the maternal household, and parties there are just going through a mundane motion in raising a child[note: 137]”.

49     Next, the Father sought to highlight concerns over the Mother’s credibility –

We highlight the inconsistencies within M1A both internally and with reference to her previous affidavits. It gives the Court the impression that she is not sure of her position and is resisting this summons for the sake of resisting it. In the process, she is trying very hard to confuse the court by speaking from both sides of the isle. More importantly, it showcases that Mother has serious credibility issues and confirms the Honourable Court’s findings where DJ Michelle Elias had mentioned in her brief grounds dated 21 Feb 2022, in Father’s previous summons for variation...[note: 138]”

50     In support of this position, the Father relied[note: 139] on the following observations from my earlier decision in the 2nd Variation Order which increased the Father’s weekly overnight access –

The evidence tells disparate stories; according to the Father, overnight access is extremely successful and meaningful for both A and him. According to the Mother, overnight access (indeed, access in general) is a miserable experience for A who does not want to go.

I am unable to agree that the evidence as a whole supports the Mother’s contentions. Similar to my findings in March 2019, I continue to find that both parties (and their families) crave and value their time with A. Everyone involved in her care is genuinely invested in promoting her well-being and success. There is nothing in evidence that suggests that either parent is falling short of their responsibilities or duties towards A: both provide a loving and supporting environment for her in their respective homes.

I maintain the view that A should have the benefit of overnight access to support the development of a meaningful relationship with her father, save that now, it need not be limited to one night a week. The Father clearly wants to be involved in A’s day-to-day and schooling arrangements, and A should have this benefit as well. There is nothing in evidence to suggest why overnight access should not be increased[note: 140].

[emphasis as reproduced in the Father’s written submissions]

51     The 2nd Variation Application was filed with separate affidavits, submissions and considerations. Just because I had previously found the Mother’s contentions to be unsupported by evidence on a specific issue had no bearing on her credibility in general, nor did it amount to “serious credibility issues” as argued by the Father. For these additional reasons, I remained unpersuaded that the Ancillary Order and 2nd Variation Order ought to be varied.

Prohibitionary orders

52     The Mother denied smoking in front of A[note: 141], and I did not consider it appropriate to make orders on this. Whether to smoke, including whether this should be done in front of A, are issues that should correctly be addressed as part of functional coparenting. As for vaping, this is an act governed by other laws applicable in Singapore; it was therefore unnecessary to provide for them in my orders.

53     The Father also sought a specific order prohibiting the Mother from referring to her male counterparts[note: 142] or her relationships with men[note: 143] as “sugar daddies” when speaking to A. The Mother explained[note: 144] the context in which this comment was made, namely, that it was a joke referencing the acquisition of luxury cars, inadvertently shared in A’s presence, and intended as light-hearted banter[note: 145]. I agreed with the Mother that the one-off use of the term did not mean she was an unfit parent[note: 146], nor was it a reason to vary care and control or grant an order preventing her from uttering these words again.

54     Finally, the Father sought an order that bound persons who are not party to these proceedings without providing a basis for the court to make such orders. I therefore dismissed all prayers seeking orders of this nature.

Deepavali access

55     While the Father did not appeal against the orders on Deepavali access, I considered it appropriate to make mention of this, as it was part of the orders made in the current application that gave rise to this appeal. Essentially, separate Deepavali access was not previously ordered in the Ancillary Order on the premise that each parent would see A in alternating years arising from the reckoning of Public Holiday access. This arrangement did not develop as anticipated after A started Primary School due to the longer stretch of primary school holidays, as compared with preschool holidays, which resulted in the Father missing out on Deepavali access for two years[note: 147].

56     Having been satisfied of the material change in circumstances, and that there remained a dispute over this issue, I made the following Deepavali orders to ensure both parents see A on Deepavali, irrespective of whether it was their ‘turn’ to spend the Deepavali Public Holiday with A.

-     For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

Video access

57     I was unable to agree with the Father’s submission that there had been a material change in circumstances warranting the inclusion of a video call access order. I maintained the views expressed in my earlier decision in granting the 2nd Variation Order, namely, that I did not consider such orders necessary for the following reasons:

(a)     The Parties should have the ability to spend uninterrupted blocks of time each week with A.

(b)     Orders mandating video calls could, in my view, form the basis for further misunderstanding and disagreements between the Parties.

(c)     Video calls were not necessary in this case. This was not a case where one parent does not see A for an extended period of time.

58     Finally, just as with any other type of access, Parties are at liberty to discuss and agree on any additional terms, including video access.

Conclusion

59     The Parties’ coparenting relationship requires improvement, including positive affirmation by the parent of the other parent in the roles that they play in A’s life. Efforts should also be made take over ownership over the coparenting process and put differences aside for A’s benefit. After considering Parties’ submissions on costs, I ordered costs of the Father’s application fixed at $3,800, all in, payable by the Father to the Mother.

_________________________________

Annex 1: The Ancillary Order

1.     By consent, the Husband and Wife shall have joint custody of the Child.

2.     The Wife shall have care and control of the Child with reasonable access to the Husband as follows:

a)     every Monday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

b)     every Wednesday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

c)     every Friday from 6:30 p.m. to Saturday 6:30 p.m. (overnight access);

d)     every Father’s Day from 10:00 a.m. to 8:00 p.m.;

e)     every birthday of the Husband, from 10:00 a.m. to 8:00 p.m.;

f)     every alternate Public Holiday from 10:00 a.m. to 8:00 p.m. (commencing Good Friday 2019).

3.     The Husband shall pick up and drop off the Child at the Wife’s residence before/ after access.

4.     The Wife and Husband shall each have an unbroken block of time with the Child for half of each of her school holidays. The parties shall be at liberty to discuss and agree on the split of the school holidays, but in default of any agreement the Husband shall have the first half of each such holiday in odd years (i.e. with effect from 2019) and the second half in even years (i.e. with effect from 2020).

5.     The Wife and Husband shall be allowed, subject to the consent of the other parent and such consent not to be unreasonably withheld, to bring the child overseas during her school holidays. The party intending to travel shall furnish the other party with the travel itinerary and relevant contact details at least 3 weeks before the commencement of the travel.

6.     Where there is a clash in the provisions above, the order of priority, in descending order, shall be as follows:

a)     School holiday arrangements;

b)     Public holiday arrangements. Where the public holiday falls within a school holiday, the affected public holiday shall not be counted in the reckoning of alternate public holidays; and

c)     Regular weekly arrangements.

7.     The Wife shall update the Husband on events / appointments at the Child’s school, including Parent-Teacher Meetings, school concerts and other meetings / events which would normally require the attendance of at least one parent. Notwithstanding that the Wife is the parent having care and control of the Child, the Husband should always have the option of attending these appointments / events in the spirit of joint parenting. The Husband may also approach the Child’s school directly for particulars in respect of such meetings/ events.

8.     In the event that the Child is unwell during the Husband’s access times, the Husband is allowed to visit the Child at the Wife’s residence for up to 30 minutes.

9.     The Parties shall be at liberty to:

a)     vary the care arrangements under this order by mutual agreement;

b)     agree to any other additional or make-up access as they see fit.

10.    The Wife and Husband shall attend counselling at DSSA.

11.    The Husband shall pay the monthly sum of $770 to the Wife as maintenance for the Child with effect from 1 April 2019 and thereafter on the 1st day of each subsequent month.

12.    In addition, the Husband shall also be responsible for:

a)     67% of the Child’s school fees;

b)     67% of enrichment classes and/or extra-curricular activities. Such enrichment classes and/or extra-curricular activities shall be discussed and agreed between the Parties;

c)     100% of all insurance premiums for the Child;

d)     100% of all medical expenses for the Child, with the use of his civil service card. The Husband shall pay the cash portion of the difference, after the necessary discounts are applied using his card.

13.    There shall be no maintenance for the Wife.

14.    All maintenance payments shall be deposited directly into the Wife’s POSB Account No. xxx.

15.    In respect of the matrimonial home, the following orders are made:

a)     Within 3 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Wife with no CPF refunds to be made to the Husband’s CPF account and no cash consideration to the Husband. The Wife shall bear the costs of the transfer and take over the outstanding mortgage.

b)     If, for whatever reason, the Wife is unable to take over ownership of the matrimonial property in the terms above, then within 6 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Husband upon the Husband making the full required CPF refunds to the Wife’s CPF account. The Husband shall:

i.       bear the costs of the transfer

ii.       take over the outstanding mortgage; and

iii.       pay the Wife a cash portion equivalent to the difference between $127,754 and her full CPF refunds.

c)     If, for whatever reason, neither party is able or willing to take over ownership of the flat, then within 9 months of the Final Judgment, the matrimonial home shall be surrendered to the HDB. Any losses shall be apportioned between the Parties in accordance with the prevailing HDB/CPF rules and regulations.

16.    The Registrar or Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

17.    Each party shall retain all other assets in their respective names.

18.    No order as to costs.

19.    Liberty to apply.

[note: 1]See Annex 1 for the full terms of the Ancillary Order.

[note: 2]HCF/DCA 38/2019 and HCF/DCA 39/2019.

[note: 3]FC/SUM 4267/2019.

[note: 4]FC/SUM 1643/2021.

[note: 5]Dated 25 March 2019.

[note: 6]F2, para 2, S/No. 1.

[note: 7]Dated 21 February 2022.

[note: 8]F2, para 2, S/No. 2.

[note: 9]F2, para 2, S/No. 3.

[note: 10]F2, para 2, S/No. 4.

[note: 11]Written decision rendered pursuant to Rule 670 of the Family Justice Rules via Registrar’s Notice dated 6 February 2024.

[note: 12]Per the Notice of Appeal filed on 27 February 2024.

[note: 13]Father’s written submissions, para 10.

[note: 14]Father’s written submissions, para 44.

[note: 15]Father’s written submissions, para 44.

[note: 16]Father’s written submissions, para 21.

[note: 17]Father’s written submissions, para 26(c).

[note: 18]Father’s written submissions, para 26(a).

[note: 19]Father’s written submissions, para 26(b).

[note: 20]Father’s written submissions, para 22.

[note: 21]Father’s written submissions, para 26(d).

[note: 22]Father’s written submissions, para 26(f).

[note: 23]Father’s written submissions, para 26(e).

[note: 24]Father’s written submissions, para 27.

[note: 25]Father’s written submissions, para 25.

[note: 26]Father’s written submissions, para 28.

[note: 27]Father’s written submissions, para 28.

[note: 28]Father’s written submissions, para 30.

[note: 29]Father’s written submissions, para 29.

[note: 30]Father’s written submissions, para 21.

[note: 31]Father’s written submissions, para 31.

[note: 32]Father’s written submissions, para 33(a).

[note: 33]Father’s written submissions, para 33(b).

[note: 34]Father’s written submissions, para 34.

[note: 35]Father’s written submissions, para 36.

[note: 36]Father’s written submissions, para 36.

[note: 37]Father’s written submissions, para 37.

[note: 38]Father’s written submissions, para 38.

[note: 39]Father’s written submissions, para 39.

[note: 40]Father’s written submissions, para 40.

[note: 41]Father’s written submissions, para 40.

[note: 42]Father’s written submissions, para 48.

[note: 43]Father’s written submissions, para 45 – 7.

[note: 44]Father’s written submissions, para 49.

[note: 45]Father’s written submissions, para 50.

[note: 46]Father’s written submissions, para 51.

[note: 47]Father’s written submissions, para 54.

[note: 48]Father’s written submissions, para 62.

[note: 49]Father’s written submissions, para 77.

[note: 50]Mother’s written submissions, para 8.

[note: 51]Mother’s written submissions, para 7.

[note: 52]Mother’s written submissions, para 80.

[note: 53]Mother’s written submissions, para 25.

[note: 54]Mother’s written submissions, para 26.

[note: 55]Mother’s written submissions, para 30.

[note: 56]Mother’s written submissions, para 30.

[note: 57]Mother’s written submissions, para 15.

[note: 58]Mother’s written submissions, para 5.

[note: 59]Mother’s written submissions, para 6.

[note: 60]Mother’s written submissions, para 27.

[note: 61]Mother’s written submissions, para 82.

[note: 62]Mother’s written submissions, para 16.

[note: 63]Mother’s written submissions, para 81.

[note: 64]Mother’s written submissions, para 81.

[note: 65]Mother’s written submissions, para 38.

[note: 66]Mother’s written submissions, para 95.

[note: 67]Mother’s written submissions, para 29.

[note: 68]Mother’s written submissions, para 31.

[note: 69]Mother’s written submissions, para 32.

[note: 70]Mother’s written submissions, para 34.

[note: 71]Mother’s written submissions, para 35.

[note: 72]Mother’s written submissions, para 39.

[note: 73]Mother’s written submissions, para 40.

[note: 74]Mother’s written submissions, para 69.

[note: 75]Mother’s written submissions, para 65.

[note: 76]Mother’s written submissions, para 40.

[note: 77]Mother’s written submissions, para 41.

[note: 78]Mother’s written submissions, para 46.

[note: 79]Mother’s written submissions, para 47.

[note: 80]Mother’s written submissions, para 48.

[note: 81]Mother’s written submissions, para 50.

[note: 82]Mother’s written submissions, para 46.

[note: 83]Mother’s written submissions, para 45.

[note: 84]Mother’s written submissions, para 60.

[note: 85]Mother’s written submissions, para 62.

[note: 86]Mother’s written submissions, para 42.

[note: 87]Mother’s written submissions, para 106.

[note: 88]Mother’s written submissions, para 109.

[note: 89]Mother’s written submissions, para 108.

[note: 90]Mother’s written submissions, para 64.

[note: 91]Mother’s written submissions, para 112.

[note: 92]Mother’s written submissions, para 70.

[note: 93]Mother’s written submissions, para 71.

[note: 94]Mother’s written submissions, para 44.

[note: 95]Mother’s written submissions, para 52.

[note: 96]Mother’s written submissions, para 52.

[note: 97]Mother’s written submissions, para 81.

[note: 98]Mother’s written submissions, para 114.

[note: 99]Mother’s written submissions, para 114.

[note: 100]The applicability of s.128 was not disputed; see Father’s written submissions, para 7 and Mother’s written submissions, para 73.

[note: 101]Father’s written submissions, para 14.

[note: 102]at [15], [16], [21] and [23].

[note: 103]Mother’s Notice of Objection.

[note: 104]F1, page 90 – 98; F3, page 40.

[note: 105]F1, para 25.

[note: 106]F3, para 21.

[note: 107]Father’s written submissions, para 26(b).

[note: 108]Father’s written submissions, para 27.

[note: 109]Father’s written submissions, para 26(a).

[note: 110]Father’s written submissions, para 26(b).

[note: 111]Father’s written submissions, para 44.

[note: 112]Father’s written submissions, para 41.

[note: 113]Father’s written submissions, para 44.

[note: 114]Father’s written submissions, para 30.

[note: 115]As reflected in the Ancillary Order.

[note: 116]Father’s written submissions, para 24.

[note: 117]F1, para 10.

[note: 118]Father’s written submissions, para 24.

[note: 119]Father’s written submissions, para 28.

[note: 120]Father’s written submissions, para 21.

[note: 121]Father’s written submissions, para 28.

[note: 122]Father’s written submissions, para 29.

[note: 123]Father’s written submissions, para 25.

[note: 124]Father’s written submissions, para 50.

[note: 125]Father’s written submissions, para 51.

[note: 126]Father’s written submissions, para 46.

[note: 127]Father’s written submissions, para 26(b).

[note: 128]Father’s written submissions, para 102.

[note: 129]F1, para 28.

[note: 130]Father’s written submissions, para 36.

[note: 131]Father’s written submissions, para 36.

[note: 132]Father’s written submissions, para 37.

[note: 133]Father’s written submissions, para 104.

[note: 134]Father’s written submissions, para 108.

[note: 135]Father’s written submissions, para 109.

[note: 136]Father’s written submissions, para 110.

[note: 137]F1, para 37.

[note: 138]Father’s written submissions, para 84.

[note: 139]As reproduced in the Father’s written submissions, para 84.

[note: 140]Father’s written submissions, para 84.

[note: 141]M1, para 68 – 69.

[note: 142]Father’s written submissions, para 77.

[note: 143]Prayer 3, FC/SUM 1702/2023.

[note: 144]Mother’s written submissions, para 52.

[note: 145]M1, para 74.

[note: 146]M1, para 75.

[note: 147]Father’s written submissions, para 69.

"},{"tags":["Family Law – Riddick undertaking","Family Law – Jurisdiction – Property legally owned by third party","Family Law – Procedure – Leave to file third ancillary affidavit"],"date":"2024-05-15","court":"Family Court","case-number":"D 1206/2020 (FC/RA 1/2024)","title":"WWK v WWL","citation":"[2024] SGFC 25","url":"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%2F31499-SSP.xml","counsel":["Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff","Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant"],"timestamp":"2024-05-21T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWK v WWL

WWK v WWL
[2024] SGFC 25

Case Number:D 1206/2020 (FC/RA 1/2024)
Decision Date:15 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff; Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant
Parties: WWK — WWL

Family Law – Riddick undertaking

Family Law – Jurisdiction – Property legally owned by third party

Family Law – Procedure – Leave to file third ancillary affidavit

15 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”.

2       FC/RA 1/2024 (“RA 1”) is the Husband’s appeal against the decision of the learned Assistant Registrar Adriene Cheong (“the AR”) given on 16 February 2024 in respect of FC/SUM 3414/2023 (“SUM 3414”) and FC/SUM 92/2024 (“SUM 92”).[note: 1]

3       RA 1 was filed on 26 February 2024.[note: 2]

4       On 27 February 2024, the AR made costs orders in respect of both applications. To obviate the need for the Husband to file a further Notice of Appeal on the costs orders, parties agreed that the Husband’s appeal against the costs orders be heard under RA 1.[note: 3]

5       On 22 April 2024, having carefully considered the submissions and the affidavits, I dismissed the Husband’s appeal with costs fixed at $5,000 (all in) to the Wife.

6       As the Husband has appealed against my decision vide HCF/RAS 6/2024 filed on 25 April 2024, I now set out the grounds of my decision.

SUM 3414

7       In SUM 3414, the Husband applied for the following orders:

a)     Leave be granted to the Husband to be released from any implied undertaking not to use the documents and information as set out in Annex A for any other purposes apart from the proceedings in Divorce Action FC/D 1206/2020 (“Prayer 1”);

b)     Following any order made on Prayer 1 above, the Husband may consequently be permitted to use the documents and information as set out in Annex A for the purpose of related proceedings in the General Division of the Hight Court, to determine the true beneficial ownership of [Property A][note: 4] (“Prayer 2”);

c)     The costs of this application be in the cause in the Divorce Action FC/D 1206/2020; and

d)     Such further and other reliefs as this Honourable Court deems fit.

The Husband’s position

8       In his Supporting Affidavit filed on 2 November 2023, the Husband avers that this is an application for leave to use certain documents disclosed by the Wife in the divorce proceedings in an intended fresh civil suit to be filed in the General Division of the High Court (“Related HC Proceedings”) to determine the true beneficial ownership of Property A.

9       The Husband says that pursuant to the order dated 4 August 2022 requiring the Wife to answer interrogatories in relation to Property A,[note: 5] the Wife gave her answers in an affidavit filed on 13 October 2022[note: 6] where she stated, among other things, that her now deceased father (the “Late Mr [T]”) had allegedly purchased Property A with the assistance of a friendly loan from one [CGK][note: 7], and the loan was extended to the Late Mr T and the Wife as borrowers.[note: 8] The Wife also stated that she did not contribute towards the payment or acquisition of Property A.[note: 9]

10     The Husband believes that the Wife’s account of Property A having been paid for entirely by the Late Mr T is false and inaccurate.[note: 10] He believes that the Wife has attempted to hide the fact that she has all along been the true beneficial owner of Property A in an obvious effort to exclude Property A from the matrimonial pool for division.[note: 11] The Husband believes that Property A was always held by the Late Mr T on trust for the Wife from the time it was purchased.[note: 12] He alleges that the Wife contrived that the Late Mr T would create by will, a purported bequest of Property A back to her in a scheme to also avoid having to pay for Additional Buyer’s Stamp Duty.[note: 13]

11     The Husband says that the Late Mr T never lived at Property A. It was instead the Wife who has been residing rent-free at Property A since October 2019.[note: 14] The tenancy agreements entered into between the Wife and the Late Mr T were therefore sham agreements.[note: 15]

12     The Husband says that as a result of the parties having differing and irreconcilable positions on whether the Wife or the Late Mr T was the true beneficial owner of Property A from the time it was purchased, he intends to commence the Related HC Proceedings to determine the beneficial ownership of Property A.[note: 16]

13     The Husband believes that various documents and information that the Wife has disclosed in her 1st Affidavit of Assets and Means (“AOM”), 13 October Affidavit, 8 February Affidavit, and her 2nd AOM (the “Disclosed Documents and Information”) will need to be used and referred to in the Related HC Proceedings.[note: 17] The relevance of each of the Disclosed Documents and Information towards the Related HC Proceedings is set out in Annex A.[note: 18]

14     The Husband says that the Related HC Proceedings would avoid a situation where any order made by the Family Justice Court in proceedings to divide matrimonial assets (having only force between the parties to the marriage) will not bind any third party who may have an interest in the matrimonial property that is being divided and expose the divided property to future litigation and claims in separate proceedings.[note: 19] The Disclosed Documents and Information would allow the High Court to have before it very relevant evidence that would enable the High Court to properly and fairly determine whether Property A was all along beneficially owned by the Wife and hence a matrimonial asset.[note: 20]

15     The Husband believes that the application is a necessary pre-requisite to his filing of proceedings at the High Court to determine the true beneficial ownership of Property A from the time of its purchase.[note: 21]

The Wife’s position

16     The Wife says that SUM 3414 is unnecessary and/or premature if the Husband’s intended action in the High Court involves her.[note: 22] If she is a party to the intended High Court civil action, there are obligations imposed on her during such court proceedings.[note: 23]

17     The Wife vigorously objects to the Husband’s allegations that she has provided false and inaccurate account of Property A having been paid entirely by her late father.[note: 24]

18     The Wife says that Property A was purchased in her father’s sole name. Her father was the party who had taken a friendly loan from CGK for the purchase of the property. [note: 25] The Wife’s father had requested the Wife to assist him with the payments for the property as he was getting on years and may not be able to attend at banks and wait long hours to purchase cashier’s orders for the purchase of the property.[note: 26]

19     The Wife says that her father passed away on 30 August 2022. Pursuant to his Last Will and Testament dated 3 June 2021, her father had given and bequeathed Property A to her.[note: 27] The Wife believes that in the administration of her late father’s Estate, Property A would be transferred to her pursuant to her father’s will. Given that she is a party of the divorce proceedings, any orders made in relation to Property A would bind her as a party to the action and the party who inherited the property.[note: 28]

20     The Wife says that there would be prejudice to her in the event that the court grants the orders the Husband is seeking.[note: 29] The Husband ought not to be allowed to make a frivolous claim against the Estate of her late father or the Wife based on information he had obtained from the divorce proceedings.[note: 30]

21     The Wife says that the Husband has acted with a vendetta and has been needlessly aggressive against her throughout the proceedings.[note: 31] As the High Court action would be an open trial proceedings, the Wife is concerned about what the Husband would be alleging in these proceedings and how he would utilise the documents provided, some of which are private and confidential in nature.[note: 32]

22     The Wife says that the divorce was commenced in March 2020 and more than four years have passed since then. The Husband has had a change of five sets of solicitors, his present set of lawyers being the sixth set.[note: 33] The Husband has gone to great lengths, including making intrusive and invasive requests for documents and information relating to the probate of the Wife’s late father, while there remain other options which would adequately address the Husband’s key concern, i.e. whether the value of Property A should be included in the matrimonial pool.[note: 34]

23     The Wife says that the Husband continually insists on prolonging the proceedings and aggravating the acrimony between parties.[note: 35] The Wife refers to an earlier appeal filed by the Husband vide FC/RA 1/2023 where I made the observations that the Husband had elected a procedural route that was needlessly more aggressive and acrimonious when a far less confrontational option existed that was equally capable of protecting his legal interests. The Wife also makes reference to the observations of Lai Siu Chiu J in the Husband’s further appeal vide HCF/RAS 4/2023 where the learned judge noted that the Husband was motivated by malice and ill will.[note: 36]

24     The Wife submits that the issue of the beneficial ownership of Property A can be property determined at the ancillary matters hearing, and there is no need for separate proceedings to be taken out for this issue.[note: 37] The matrimonial pool is sufficiently large to accommodate the distribution of matrimonial assets without needing to make an order directly affecting Property A, if it is later found to be a matrimonial asset.[note: 38]

The AR’s decision

25     The AR noted that the orders sought by the Husband are extremely wide. The AR noted that the Husband has asked to be allowed to use the listed documents for “any other purposes apart from the divorce proceedings”, which would effectively mean that there was no limit to the manner the documents may be used.[note: 39] The AR found that the Husband’s prayer is unnecessarily broad and unidentified, and it would not be reasonable for such an order to be granted.[note: 40]

26     The AR noted further that the Wife herself has stated that once the probate is completed, legal title with vest with her. There is hence no necessity for a separate civil suit in the High Court to determine either legal or beneficial interest of Property A.[note: 41]

27     Further, the Husband has not yet commenced the related proceedings, and the specific claims have not been set out. This is the “unclear” as to the collateral purpose of the suit.[note: 42] The burden of proof, as noted by the AR, lies with the Husband.[note: 43]

28     The AR found that the High Court proceedings are unnecessary, and this ground alone was sufficient to dismiss the Husband’s application.[note: 44] The AR noted further that in the context of matrimonial cases where proceedings are held in camera, it is important to apply a strict approach to any application for waiver to avoid a situation where disclosure in private personal proceedings are used for ulterior purposes.[note: 45]

Analysis

29     A judge hearing a Registrar’s Appeal exercises confirmatory jurisdiction, as opposed to appellate jurisdiction. Although I may accord appropriate weight to the AR’s decision, I am not bound by the manner in which she exercised her discretion.

30     As noted in the recent decision of the High Court in Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96 (“Third Eye”), a party who discloses a document in an action under compulsion is entitled to the protection of the court against any use of the document otherwise than in that action. [note: 46] This rule, known as the “Riddick principle”, is derived from the case of Riddick v Thames Board Mills Ltd [1977] 1 QB 881, where Lord Denning MR explained its rationale as follows:

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. … The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e., in making full disclosure.

…

On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of April 16, 1969, to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else —to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

31     As noted in Third Eye (at [9]) citing the Court of Appeal (“CA”)’s decision in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584, situations involving the Riddick principle may broadly be classified under three categories:

a)     First, it must be determined if a document is produced, or information furnished, out of compulsion. If so, it is covered by the Riddick undertaking. If not, the document or information may be used without the permission of the court.

b)     Second, if the Riddick undertaking applies, the question is whether the protected document or information may nonetheless be used without permission due to the nature of the related enforcement proceedings for which it is being used.

c)     Third, if neither of the above is satisfied, the party relying on the protected document or information to commence or sustain related proceedings must seek the court’s permission for the undertaking to be lifted.

32     In the present case, the Husband accepts that he is bound by the Riddick undertaking. As such, the Husband filed SUM 3414 praying to be released from the Riddick undertaking for the purpose of being permitted to start the Related HC Proceedings.[note: 47]

33     The Husband clarifies that Prayer 1 of SUM 3414 is not an application to be released from the Riddick undertaking in order to use the Disclosed Documents and Information for a limitless number of undefined extraneous purposes.[note: 48] The Husband says that Prayer 1 is simply a description of the nature of the Riddick undertaking that he was trying to be released from[note: 49] and is specifically limited by Prayer 2, which refers to the related proceedings in the General Division of the High Court to determine the true beneficial ownership of Property A.[note: 50] The Husband says that he has consistently made clear in his Supporting Affidavit that this is the sole purpose in filing SUM 3414.[note: 51]

34     Given the clarifications provided by the Husband, the central issue before me is whether permission should be granted for the undertaking to be lifted for the sole purpose of enabling the Husband to start the related proceedings in the General Division of the Hight Court to determine the true beneficial ownership of Property A.

35     The law, in this regard, was helpfully summarised in Third Eye as follows:

25    In determining whether permission should be granted, the Court embarks on a balancing exercise to assess “whether the circumstances are such as to justify the lifting of the Riddick undertaking” (Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (“Amber Compounding”) at [69]).

26    The Court of Appeal in Amber Compounding highlighted five (non- exhaustive) factors which may be raised in favour of lifting the Riddick undertaking (at [71]), of which the only relevant one here is that the EJD Information is to be used to support related foreign civil proceedings.

27    The factors in favour of granting permission are then to be balanced against the interests sought to be protected by the Riddick undertaking, namely the public interest in encouraging full disclosure and the disclosing party’s privacy interests. Factors which militate against the grant of permission include (Amber Compounding at [72]):

(a)    injustice or prejudice to the disclosing party – however, where no irremediable prejudice is demonstrated, this factor may be accorded little weight;

(b)    improper purpose for which permission is sought – the court has a general concern to control the collateral use of disclosed documents; and

(c)    privilege against self-incrimination – which is not engaged in the present case.

28    Ultimately, the test is whether “if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweigh the interests that are protected by the Riddick undertaking” (Amber Compounding at [46]).

36     The Husband says that SUM 3414 is necessary given that the matrimonial jurisdiction of the Family Justice Court cannot be exercised to decide the legal rights of third parties, based on the CA’s decision in UDA v UDB and another [2018] 1 SLR 1015 (“UDA”).[note: 52]

37     In UDA, the CA noted (at [51]) that there are four possible situations in which property may come before a court that is hearing an ancillary matters proceeding:

a)     the property is accepted as a matrimonial asset, having been acquired jointly by the spouses or solely by one of them, and the only question is how it should be divided;

b)     the property is in the name of one of the spouses and the issue is whether the circumstances of its acquisition render it a matrimonial asset;

c)     the property is in the name of one of the spouses who claims to be holding it in trust for a third party, whilst the other spouse disputes this and contends that the property belongs beneficially to the legal owner and is therefore a matrimonial asset; and

d)     the property is in the name of a third party but one or both spouses claims that it is a matrimonial asset because the third party is holding the whole or part of the property on trust for one or both spouses.

38     The CA noted (at [56]) that the following options are available if the property is legally owned by a third party:

a)     First, the spouse who claims the property to be a matrimonial asset may obtain legally binding confirmation from the third party that this is so and an undertaking that the third party would respect and enforce any order that the court may make relating to the beneficial interests in the property.

b)     If this is contested, either that spouse or the other who is asserting that the property belongs beneficially to the third party would have to start a separate legal action to have the rights in the property finally determined, vis-à-vis the third party, in which case the s 112 proceedings would have to be stayed until the rights are determined. This would be Option 2.

c)     The third possibility would be for the spouse to drop his or her claim that the property is a matrimonial asset and allow the s 112 proceedings to continue without it.

d)     Alternatively, that spouse may ask the court to determine whether the asset is a matrimonial asset without involving the third party’s participation at all or making an order directly affecting the property. This is Option 1.

39     With respect to Option 1, the CA provided the following guidance:

57     In respect of [56(d)] above, the family justice court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to prejudice the spouse who has had to account to the other for the value of an item of property which turns out not to be a matrimonial asset. By the time of the separate action the s 112 proceedings may have completed and no adjustments may be possible to reflect the decision made in the third party’s separate proceedings. If both spouses do not agree to Option 1 in this situation, then directions would have to be given regarding the taking of separate proceedings against the third party and Option 2 would come into play. We should add that Option 1 would not be viable if the disputed asset is the main or only substantial asset available for division.

58    The other situation is where the property is in the name of one of the spouses and the third party is a “shadowy” figure in the wings whom that spouse claims has an interest in the property but no order is sought by or against the third party directly. In such a case, because no order is sought by or against the third party, it is permissible for the court to make an order exercising its powers under s 112 because the only parties directly affected by the order will be the parting spouses. This, again, is an Option 1 course. The choice of Option 1 would have the same risks for the spouses as alluded to in [57] above. Thus, for instance, the spouse in whose name the property stands, having been ordered to share the value of the property with the other spouse, may later find he or she has to account to the third party for such value or to transfer the property outright to the third party. This is because the determination of the ownership of the disputed property in the s 112 proceedings will not bind the third party who may challenge it in separate proceedings. But that is the risk the spouse takes by not seeking an order that will bind the third party. Once such an order is sought, in our view, this would be the same situation as discussed in [56(b)] above and a separate set of proceedings would have to be issued.

[emphasis in bold added]

40     The Husband, through his solicitors, sought clarification from the Wife vide their letter dated 27 October 2023, on whether the Wife, in her personal capacity and her capacity as a Personal Representative (“PR”) of the Estate of the Late Mr T, continues to maintain her position that Property A is an inheritance and not a divisible matrimonial asset and whether the other PR, Ms [TYS], aligns herself with the Wife’s position.[note: 53] In their reply dated 30 November 2023, the Wife’s solicitors indicated that they have not been instructed to act for the PRs of the Estate of the Late Mr T, but they have been instructed to act for the Wife in respect of the High Court action.[note: 54]

41     The Husband contends that with the passing of the Late Mr T, the Executrices of his will, the Wife and her sister, are required to first administer the Estate. The PRs of an estate as well as the Estate of the Late Mr T are each considered at law to be third parties as far as D 1206 goes. Until all debts and liabilities of the Estate have been settled, no named beneficiaries of any property bequest can legally claim to have a beneficial interest in that property.

42     The Husband contends that the Executrices have steadfastly refused to disclose the progress of the probate. The Wife in her personal capacity also chose not to be helpful with disclosing the progress of the probate and avoiding the need for the Husband’s application. The Husband therefore has to start the Related HC Proceedings to determine whether the full beneficial interest to Property A has always belonged to the Wife or the Late Mr T since the current position is that there are third parties disputing that Property A is matrimonial property.[note: 55]

43     The Wife submits that there is no real dispute over who the beneficial interest in Property A will ultimately devolve to, and the Estate of the late Mr T is not a third party who has asserted beneficial ownership of Property A. Hence, separate proceedings in the General Division to determine the true beneficial ownership of property would be wholly unnecessary.[note: 56]

44     In light of the Wife’s submissions, it would be necessary to refer to Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Swoon and another and another appeal [2019] SGCA 61 where the CA summarised the principles regulating the interests of beneficiaries of an estate as follows:

64    In our judgment, a personal representative ceases to be an executor and administrator only after all the assets of the estate have been vested in the personal representative, and the estate has been fully administered: see G Raman, Probate and Administration in Singapore and Malaysia (LexisNexis, 4th Ed, 2018) at para 12.19. This involves, inter alia, getting in all the assets of the estate, paying for any funeral, testamentary and administrative expenses, and satisfying all outstanding debts against the estate. As trustee, the personal representative then becomes concerned with the problems of distribution of the administered estate among the persons entitled: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) (“Williams, Mortimer and Sunnucks”) at para 65-05. …

65     Once an executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate, he should then “assent” to the legacy. This is explained by the learned authors of Williams, Mortimer and Sunnucks at para 76-01 (see also Arthur Dean, “When Does an Executor become a Trustee?” (1935-1938) 1 Res Judicatae 92 at p 93):

An assent has been described as an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.

As has been shown all real and personal property to which a deceased person was entitled for an interest not ceasing on his death, now devolves upon his representatives. They are responsible for the satisfaction of the deceased’s debts to the extent of the whole estate, even though the testator may have directed that a portion of it should be applied to other purposes. In view of this liability they should not distribute any portion of the deceased’s estate until satisfied that such debts have been actually paid or are adequately secured, or can be paid without recourse to that portion of the estate. The personal representatives are protected against competing claims by the principle that the beneficiaries’ title to the deceased’s property, whether devisees, legatees or persons entitled on intestacy, is not complete until some act of the representatives themselves makes it so. This act, according to the circumstances, is either an assent or a conveyance, and until it has taken place the administration continues.

66     It follows that before the debts and liabilities of the estate have been fully settled, the beneficiaries to the will cannot claim to have a beneficial interest in the assets of the estate, since some of the assets may have to be used in satisfaction of the said debts and liabilities. Therefore, if the beneficiaries do not have an equitable interest in the assets of the Estate, the personal representative cannot be regarded as a trustee over those assets. …

[emphasis added]

45     It is clear from the above passages that a beneficiary’s title to a deceased’s property is not complete until the executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate and assents to the legacy. Until then, the beneficiary cannot claim to have a beneficial interest in the property.

46     In VIK v VIL [2020] SGHCF 12, the court noted (at [53]) as follows:

The question of whether an assent exists is a fact-sensitive one, since an assent may be informal and may also be inferred from conduct: Seah Teong Kang at [27]. In respect of Property 1 and Property 2, there is no evidence of any assent on the part of the Administrator, and none of the parties have sought to argue as such. It follows that both Property 1 and Property 2 are not held on trust by the Administrator, and the appropriate regime of law is that which applies to execution and administration of an estate.

47     In the present case, the Wife has not provided evidence of any assent and neither has she argued as such. In the absence of such evidence, the Wife cannot claim to have a beneficial interest in Property A qua beneficiary of her father’s will. In addition, there is no evidence to show that the debts and liabilities of the Estate have been fully settled. It would not be correct, as a matter of law, to assume that the beneficial interest in Property A will ultimately devolve to her.

48     In the circumstances, the facts of the present case fall within the situation described in paragraph 51(d) of UDA, i.e. the property is in the name of a third party (i.e., the Estate of Mr T) but one spouse (the Husband) claims that it is a matrimonial asset because the third party is holding the whole of the property on trust for the other spouse (the Wife).

49     Since Property A is legally owned by a third party, there are two options under paragraph 56 of UDA that come into play: “Option 1” (UDA at [56(d)]) and “Option 2” (UDA at [56(b)]). The other two options listed in paragraph 56 are not engaged on the facts of the case.

50     The Wife submits that Option 1 would be the most straightforward, expeditious and cost-effective way forward for parties.[note: 57] Under this option, the Family Justice Court may determine whether the asset is a matrimonial asset without involving the third party’s participation or making an order directly affecting the property. In other words, there would be no necessity for the Husband to start a separate legal action to have the rights in the property determined, vis-à-vis the third party, nor is there a need to stay the s 112 proceedings until the rights are determined, as would be the case if Option 2 is adopted.

51     As noted in UDA (at [57]), the Family Justice Court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to the prejudice of the spouse who has to account to the other for the value of an item of property which turns out not to be a matrimonial asset.

52     In the present case, the Wife has opted for Option 1 even though she is the party who may be prejudiced by this course of action since she is the one who has to account for the value of Property A. In contrast, the Husband does not bear such risk. So long as both parties agree, the question whether Property A is a matrimonial asset can be appropriately determined in the ancillary matters hearing without the need for the Husband to commence separate civil action at all. Clearly then, the only obstacle to Option 1 is the Husband’s refusal to agree to it.

53     The Husband has highlighted concerns that (i) any orders made by the Family Justice Court in proceedings to divide assets in the divorce proceedings will not bind third party including the PRs of the Estate who may have an interest in a matrimonial asset that is being divided, and (ii) any determination of ownership of a property, to which beneficial ownership is in dispute, in ancillary matters may face challenges by a third party affected by such a determination in separate proceedings.[note: 58]

54     However, it should be noted that Option 1 does not involve the court making an order directly affecting the property. The risk, if any, lies with the Wife as the spouse who has to account for the value of the disputed asset. The Wife recognises as such and is prepared to proceed on such a basis.[note: 59]

55     As the Husband has a real enough choice of taking up Option 1, the AR was correct in her finding that the Related HC Proceedings are unnecessary. Further, although the Husband has clarified that he filed SUM 3414 for the sole purpose of being permitted to start the Related HC Proceedings,[note: 60] the scope of the orders sought by the Husband is very wide and goes beyond that. If Prayer 1 of SUM 3414 is granted, it would have the effect of releasing the Husband of the Riddick undertaking from “any other purposes”. There is nothing in Prayer 2 that limits the effect of Prayer 1.

56     Given that there is no real necessity for the Husband to commence the Related HC Proceedings and taking into account the expansive nature of the orders sought by the Husband, the Wife’s apprehension that the Husband may misuse the documents and information if he is released of the Riddick undertaking is not without basis. This risk cannot be discounted given the conduct of the Husband as observed in FC/RA 1/2023 and HCF/RAS 4/2023. Additionally, his frequent change of solicitors deepens my concern about the propensity on his part to engage in a course of conduct that is unnecessarily acrimonious and confrontational.

57     On balance, it was clear to me that the interests that are protected by the Riddick undertaking outweigh the interests advanced by the Husband for the use of the Disclosed Documents and Information. Accordingly, I affirmed the AR’s decision and dismissed the appeal.

SUM 92

58     SUM 92 is an application by the Husband for leave to respond to certain paragraphs of the Wife’s Reply Ancillary Matters Affidavit dated 28 August 2023.

59     The Husband’s appeal is concerned with six items identified in S/No. 1, 4, 6, 9, 10 and 12 (the “Appealed Items”) of the Table of Positions exhibited in the Husband’s Supporting Affidavit filed in SUM 92 on 8 January 2024.

60     The AR disallowed the Husband’s application broadly on the basis that the proposed responses or new evidence is unnecessary or has limited impact to the outstanding issues to be determined.[note: 61]

61     The Husband submits that leave should be granted to reply to the Appealed Items as the evidence he intends to adduce will facilitate a fair adjudication of the ancillary matters.[note: 62] Out of the six Appealed Items, five are relevant to the issue of indirect contributions[note: 63] and one is relevant under s 112(2)(g) of the Women’s Charter (“the Charter”).[note: 64]

62     The Husband says that the parties are still in a relatively early stage of the ancillary matters as a hearing date has not been fixed.[note: 65] If the evidence that he is seeking to admit at this juncture is disallowed and turns out to be important in an appeal in future, it would not satisfy the Ladd v Marshall rule and the Husband would thus suffer prejudice.[note: 66]

63     The Wife submits that the affidavit filed by the Husband in support of SUM 92 is his twelfth affidavit. The Husband has already had ample opportunity to present his case whether through his AOM, or in the course of the several applications filed by him.[note: 67]

64     The Husband refers to the broad principle of law in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15 where the CA emphasised that “every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court” and where “the relevance of evidence sought to be adduced is unclear, or even doubtful”, it is “usually both prudent and just to err in favour of admission rather than exclusion”. [note: 68]

65     The Husband also refers to SIC College of Business and Technology Pte Ltd v Yeo Poh Siah [2016] SGCA 5 where the CA held as follows:

It is axiomatic that in order to arrive at a fully considered decision based on justice and fairness, the court concerned must have all the relevant evidence before it. The present appeal turns on this one fundamental point. Put simply, was all the relevant evidence before the judge in the court below? If it was not, then there would have been no way for the judge to have arrived at a considered decision simply because he would have been in receipt of the full picture.”

66     In my view, these general principles must be considered against the unique nature of proceedings for the division of matrimonial assets where different considerations apply. As noted by Debbie Ong J (as she then was) in UYP v UYQ [2019] SGHCF 16 (“UYP”):

63    It is significant to note that a civil trial is markedly different from an AM proceeding. In civil proceedings, parties set out their cases in their pleadings and are bound by them. Facts which are pleaded to support a cause of action are proved in the court proceedings. Where there are gaps in evidence and a party asserting a fact is unable to prove it, he or she may not have discharged the requisite burden of proof. A successful litigant would be one who has proved his or her pleaded facts that support the pleaded case. A court may find against a litigant who fails to provide evidence to prove those facts. In contrast, in proceedings for the division of MAs, the court is presented with only a fraction of each party’s “contribution” to the marriage, yet parties seek the court’s determination on what is a just division based substantially on each party’s direct and indirect contributions in the entire marriage. Had a similar approach as that used in civil matters been taken, the Family Court presented with a 30-year marriage would have had to examine the entire contributions and conduct of each spouse over 30 years, possibly examining the daily records of each act done, each decision made, each word uttered every day and night over 30 years, for that is the only way to fully assess what contributions each had made to the marriage. This is an impossible exercise. Neither does such an exercise accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for parties to continue family life after divorce in the most dignified manner possible. The court determines the division of assets by affidavit evidence unless leave is granted for the cross-examination of witnesses (see rr 42, 81(2) and 590 of the Family Justice Rules 2014 (S 813/2014)). This mode of proceedings is suitable because the “broad brush” approach is core to the exercise of discretion in s 112. It is appropriate because marriage is an intimate partnership between two spouses who had decided very solemnly to join their lives together.

64    Thus when applying the ANJ v ANK approach, the court must bear in mind that findings on the parties’ contributions are necessarily impressionistic as it can only have sight of a portion of all that had occurred during the marriage, and will not be able to reach with mathematical specificity each party’s contributions for the entire length of the marriage. This is especially true for long marriages, as the court’s finding on the parties’ “contribution” cannot fully reflect all that goes into building a life together nor will it be likely that records of transactions remain completely available. This observation should not be taken to suggest that parties should therefore dredge up their past in order to present to the court 30 years’ worth of daily journal records on their married lives. On the contrary, this would run counter to how family disputes ought to be resolved.

[emphasis in bold added]

67     The CA in UYQ v UYP [2020] SGCA 3, in affirming the learned judge’s views, reiterated (at [4]) as follows:

In our view, it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. Henceforth, therefore, courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. Parties would do well to understand that such an approach detracts from their respective cases instead of enhancing them. And in extreme situations where the court’s time and resources have been wasted in a wholly disproportionate manner, a party may face sanctions in the form of the appropriate costs orders.

68     Further, under rule 89 of the Family Justice Rules, parties are only permitted to file one AOM and a reply affidavit to the other party’s AOM. Rule 89(3) provides that no further affidavit shall be received in evidence without the leave of the court. The purpose of rule 89 is to discourage parties from filing multiple rounds of affidavits that would only increase legal costs and acrimony and drag out court time unnecessarily. By limiting the number of affidavits, it provides a cut-off point so that parties do not engage in a never-ending cycle of reply and rebuttal over every allegation raised.

69     In my view, the AR had exercised her discretion correctly in refusing to grant leave to the Husband to file a further affidavit to respond to the Appealed Items. The reasonings provided by the AR are consistent with the principles enunciated in UYP and the raison d'être of rule 89. Bearing in mind the “broad brush” approach which is core to the exercise of the discretion in s 112 of the Charter, I found nothing exceptional in the reasons provided by the Husband that would warrant a departure from the default position that limits parties to two affidavits each. In circumstances, I affirmed the AR’s decision and dismissed the appeal.

[note: 1]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [1].

[note: 2]M/S Drew & Napier’s letter dated 12 March 2024 at [3].

[note: 3]M/S Drew & Napier’s letter dated 12 March 2024 at [4] & [5].

[note: 4]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [3].

[note: 5]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [9].

[note: 6]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [10].

[note: 7]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.3].

[note: 8]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.6].

[note: 9]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.8].

[note: 10]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12].

[note: 11]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.3] & [15.5].

[note: 12]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.4].

[note: 13]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.4].

[note: 14]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.6].

[note: 15]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.7].

[note: 16]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [18].

[note: 17]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [19].

[note: 18]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [21].

[note: 19]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.1].

[note: 20]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.2].

[note: 21]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [26].

[note: 22]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [10].

[note: 23]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [11] & [28].

[note: 24]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [15].

[note: 25]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 26]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [14].

[note: 27]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 28]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [23(b)].

[note: 29]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [32].

[note: 30]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [33].

[note: 31]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [34].

[note: 32]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [35].

[note: 33]Respondent’s Written submissions for FC/AR 1/2024 at [102].

[note: 34]Respondent’s Written submissions for FC/AR 1/2024 at [101].

[note: 35]Respondent’s Written submissions for FC/AR 1/2024 at [99].

[note: 36]Respondent’s Written submissions for FC/AR 1/2024 at [105].

[note: 37]Respondent’s Written submissions for FC/AR 1/2024 at [106].

[note: 38]Respondent’s Written submissions for FC/AR 1/2024 at [57].

[note: 39]Notes of Evidence dated 16 January 2024 at p 16 at [3].

[note: 40]Notes of Evidence dated 16 January 2024 at p 17 at [4] and p 20 at [16].

[note: 41]Notes of Evidence dated 16 January 2024 at p 17 at [6].

[note: 42]Notes of Evidence dated 16 January 2024 at p 17 at [7].

[note: 43]Notes of Evidence dated 16 January 2024 at p 18 at [10].

[note: 44]Notes of Evidence dated 16 January 2024 at p 18 at [11].

[note: 45]Notes of Evidence dated 16 January 2024 at p 19 at [15].

[note: 46]Third Eye at [7].

[note: 47]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 48]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 49]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [14].

[note: 50]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 51]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 52]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 53]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [25].

[note: 54]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at p 20.

[note: 55]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [8].

[note: 56]Respondent’s Written submissions for FC/AR 1/2024 at [47].

[note: 57]Respondent’s Written submissions for FC/AR 1/2024 at [51].

[note: 58]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [39.2].

[note: 59]Respondent’s Written submissions for FC/AR 1/2024 at [55].

[note: 60]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 61]Notes of Evidence dated 16 January 2024 at pp 21 – 23.

[note: 62]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

[note: 63]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at pp 29 (s/no 1), 34 (s/no 4), 41 (s/no 6), 44 (s/no 10), 50 (s/no 12).

[note: 64]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at p 42 (s/n 9).

[note: 65]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [46].

[note: 66]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [47].

[note: 67]Respondent’s Written submissions for FC/AR 1/2024 at [120].

[note: 68]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

"},{"tags":["Civil Procedure – Discovery"],"date":"2024-05-13","court":"Family Court","case-number":"Divorce No 3366 of 2023 (Summons No 586 of 2024)","title":"WWU v WWV","citation":"[2024] SGFC 26","url":"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%2F31491-SSP.xml","counsel":["Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff","Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant."],"timestamp":"2024-05-17T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WWU v WWV

WWU v WWV
[2024] SGFC 26

Case Number:Divorce No 3366 of 2023 (Summons No 586 of 2024)
Decision Date:13 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff; Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant.
Parties: WWU — WWV

Civil Procedure – Discovery

13 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       It was the year 2000. The dawn of a new millennium. It was also the year that the Husband left the matrimonial home following a heated disagreement with the Wife.[note: 1] Since then, the Husband made no attempt to return home, or stay in touch with the Wife, save for instances where there were matters relating to their two children.

2       As to why the Husband had left and cut off all contact with the Wife, there are no details disclosed in the Statement of Particulars (“SOP”). What is disclosed, however, is that the Husband rented another place nearby, while the Wife and two children continued to reside at the matrimonial home. It is also disclosed, in the SOP, that the Husband is the joint partner of a vehicle workshop, (“ABC”).[note: 2] ABC is in the business of providing repair and maintenance services for heavy commercial vehicles.[note: 3]

3       Although the Husband was estranged from the Wife, he appears to have maintained a close relationship with the two children. The fact that his son filed an affidavit detailing his contributions to the family spoke to this.

4       The passing of time, however, did little to heal the rift between the Husband and the Wife. After more than twenty years apart, the Husband filed for divorce on 17 July 2023. Interim judgment was granted on 25 October 2023. All that was left to be settled were the ancillary matters. To that end, the matter was fixed for mediation. Realising that they were unlikely to find common ground, parties decided to abandon mediation and embark on the road to an ancillary hearing. Parties thus filed and exchanged their Affidavit of Means (“AOMs”). Subsequently, they exchanged requests for discovery and interrogatories.

5       The Wife, being dissatisfied with the Husband’s responses to her request for discovery, filed SUM 586/2024 (“SUM 586”). She sought the disclosure of the following documents:

(a)     Balance Sheets and the valuation report of ABC;

(b)     Statements of the Husband’s personal bank accounts;

(c)     Receipts supporting cash withdrawals from the Husband’s personal bank account;

(d)     In relation to the Husband’s insurance policies, the complete insurance policy contract as well as the projected benefit illustration of each policy.

6       In addition to the disclosure of the above-mentioned documents, the Wife also asked for a valuation expert to be appointed to value ABC, and that the costs of the valuer be borne by the parties equally.

7       I heard oral arguments on 6 May 2024. This is my decision in respect of the Wife’s application in SUM 586.

The Wife’s application for discovery

8       I deal, first, with the Wife’s application for discovery.

9       The first two items that the Wife sought disclosure of were the balance sheets and valuation report of ABC. Counsel for the Husband argued that these items should not be disclosed because ABC was not a matrimonial asset. The Husband had inherited ABC from his father, and had been added as a partner, well before parties were married.

10     This is not a sustainable argument. It is clear that parties must strictly observe their disclosure obligations and cannot tailor the scope of disclosure based on their own views of what a matrimonial asset is: UZN v UZM [2021] 1 SLR 426 (“UZN”) at [17].

11     There is, however, a more important point – that is: what are the sort of documents of a partnership that may be disclosed in the context of an application for discovery in support of an ancillary hearing? There is case law, in the context of commercial litigation, which suggests that certain documents of a partnership may not be disclosed without the consent of the other partners who are not a party to the suit. One such example may be found in Hadley v Mcdougall [1872] L.R 312 (“Hadley”). In that case, the plaintiff had applied for the account of partnership transactions entered into by himself and the defendant for the supply of harnesses to the French government. The defendant was in a partnership with his father, who had no interest in that particular transaction that formed the subject of the suit. The accounts of the relevant transactions, however, appeared to have been entered in the partnership books of the defendant and his father.

12     Vice-Chancellor Malins had ordered the partnership books to be disclosed. The defendant appealed, and succeeded. The court ruled that an order of production of documents could not be made on a person who was not a party to the suit.

13     In contrast to Hadley is the case of G v G (Financial Provision: Discovery) [1992] 1 FLR 40 (“G”). In that case, the husband, who was a lawyer, had recently jointed a firm of solicitors as a partner. The partnership deed had yet to be drawn up. The wife sought disclosure of the partnership deed. District Judge Conn granted the application. The husband appealed on the basis that the court could not order the disclosure of documents not currently in existence. Bracewell J dismissed the appeal, finding that the court’s powers were not limited to such documentation that was already in existence.

14     The point which may be distilled from the cases cited above is that where disclosure of partnership documents is sought, the question is whether the other partners to the partnership also have a right or interest in the document that is sought to be disclosed (see In re Pickering [1883] 25 Ch D 247). If they do, then disclosure would be disallowed, though the court could, in that case, allow an interrogatory as to the contents of the document sought: B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at p 187.

15     In the case of partnership books, s 24(i) of the Partnership Act 1980 makes it clear that all partners to the partnership shall have “access to and inspect and copy them”. The documents sought in the present case before me, however, are balance sheets. They are accounting documents. The Wife has asked for them because she wants to put a value on the Husband’s share of ABC. These documents are quite different from the partnership books that were sought in Hadley.

16     For completeness, I note that the Husband has resisted disclosure on the basis that there are no balance sheets. He had stated, in his reply affidavit, as well as written submissions, that ABC does not have a balance sheet.[note: 4]

17     The Husband cannot run from his disclosure obligations by virtue of such bare assertions. The twin criteria that must be satisfied to obtain an order for discovery are that of relevance and necessity: UJN v UJO [2018] SGFC 47 at [10]. If the document is relevant and necessary for the disposal of the ancillary matters, it should be disclosed.

18     In the circumstances, I will allow the Wife’s request for the balance sheets of ABC for AY 2021, 2022 and 2023. The balance sheets sought are indeed relevant and necessary to determining the value of the Husband’s share in ABC.

19     In light of the above, I will disallow the Wife’s request for the valuation report.

20     I come now to the next set of documents which the Wife sought – these were statements of the Husband’s two personal bank accounts with POSB from January 2023 to August 2023. Her request stems from the suspicion that the Husband had dissipated matrimonial assets. There were, according to her, a number of highly unusual transactions involving large sums of money, to his son and sister.[note: 5]

21     The Husband resisted disclosure on the basis that the Wife had no basis to allege that there had been dissipation of matrimonial assets. He referred to the Court of Appeal (“CA”) decision in BOR v BOS and another appeal [2018] SGCA 78 (“BOR”) where the court had observed, at [76], that “not every unexplained withdrawal or decrease in value in a bank account over time will be sufficient to raise a prima facie case of dissipation”. He also referred to the decision in Tan Yen Chuan (m.w.) v Lim Theam Siew [2014] SGHC 110 at [32] and [33] where the court had taken the view that focussing on the movement of large sums of money was a more reliable forensic approach of uncovering any dissipation of assets.

22     I do not think that discovery can be resisted on the Husband’s mere insistence, at the interlocutory stage, that the Wife had no basis to allege that assets had been dissipated. As the CA had noted in BOR at [76], whether there has been dissipation is a “fact-sensitive matter and the court will consider the evidence in the context of the parties’ habits, lifestyles, business activities, and amount of the withdrawal(s) in relation to the total value of the matrimonial assets in question”. Simply put, this is a matter to be decided by the judge hearing the ancillary matters. The corollary of this is that all the relevant and necessary evidence must be placed before that judge. This is where the discovery process comes into play. In that vein, it is useful for both the court, and the Wife, to have a snapshot of the Husband’s financial circumstances shortly before the marriage broke down till the period after divorce proceedings had been filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19].

23     I will allow the Wife’s request for the bank statements. The period of disclosure sought by the Wife is, in my view, a reasonable and sensible one. It covers the immediate period preceding the Husband’s filing of the divorce and a month after the divorce had been filed. There can also be no quarrel as to the relevance and necessity of these documents – any dissipation of assets would, in all likelihood, be reflected in the statements.

24     The next set of documents sought were the receipts supporting cash withdrawals from the Husband’s personal bank account. Counsel for the Wife explained that the Wife was essentially asking for documentary proof as to what the Husband had spent the cash on. In short, the Wife wanted an explanation as to what the cash had been spent on.

25     I will disallow the request. The disclosure of such documents was not necessary given that I have already ordered the disclosure of the Husband’s bank statements. In any event, if the Wife wanted an explanation as to what the cash had been spent on, that could have been pursued by way of interrogatories rather than discovery.

26     I now come to the final set of documents that the Wife has asked for. These are documents relating to the Husband’s insurance policies, specifically, three insurance policies that the Husband had with Manulife. This, once again, stems from Wife’s suspicion that the Husband has been dissipating assets because the surrender value of these policies were low compared to the premiums paid. She has therefore sought disclosure of the complete insurance policy contracts along with the projected benefit illustration.

27     The Wife’s request is disallowed. I did not see how the documents which the Wife asked for were relevant. The contracts would only disclose the extent of the obligations between the Husband and the insurance company. They would not actually show whether the Husband had, for example, taken out loans from his insurance policies. I will instead order the Husband to disclose the statement of any payouts he has received from these three insurance policies.

Appointment of a valuation expert

28     I turn now to deal with the Wife’s request that a valuation expert be appointed.

29     Parties disputed the appointment of a valuation expert on the basis that ABC was not a matrimonial asset.[note: 6] This quite misses the point. The law makes it abundantly clear that it is the court which hears the ancillary matters that decides whether the asset in dispute is indeed a matrimonial asset. It is not for parties to say that a valuation expert should not be appointed because they have taken the view that the asset in dispute is not a matrimonial asset.

30     The more pertinent question was whether there was any legal basis to appoint such an expert. Rule 630 of the Family Justice Rules 2014 (“FJR”) is relevant. It states:

Appointment of expert to report on certain question

630.—(1)    In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own motion or on any party’s application, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.

(2)    An expert appointed under this Division or under rule 555 shall be referred to as a court expert.

(3)    Any court expert in a cause or matter, if possible, is to be a person agreed between the parties and, failing agreement, is to be nominated by the Court.

(4)    The question to be submitted to the court expert and the instructions (if any) given to him is, failing agreement between the parties, to be settled by the Court.

(5)    In this rule, “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.

[emphasis added]

31     This Rule is derived from O 40 r 1 of the Rules of Court (2014 Rev Ed) (“ROC 2014”): Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [630.01]. In the context of civil litigation, O 41 r 1 acts as a safety net to avoid a situation where the court is left without the aid of expert evidence in cases where the experts appointed by each party has given contradictory questions on technical issues: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [40/1/2]. In the context of family proceedings, some have taken the view that the court should, given the benefits offered by a court-appointed expert, “consider using its appointment powers under this rule more liberally since it is given a strong mandate to manage cases and reduce acrimony”: Family Procedure in Singapore at [630.01].

32     There is much force to this view. It does not, however, mean that a valuation expert should be appointed in every case. The decision to appoint an expert under Rule 630 lies in the court’s discretion, and in this connection, the cost of doing so is one very relevant consideration (see White Book at [40/1/2] citing Maugham L.J. in Fishenden v Higgs & Hill Ltd [1935] All E.R. 435 at p 452). For example, if it will cost $10,000 to value a company whose estimated value is approximately $50,000, it is unlikely that the court will order that an expert be appointed unless there are other circumstances that weigh in favour of such an appointment being made.

33     Given that I have already granted the Wife’s request for disclosure of ABC’s balance sheets, I did not think it necessary for a valuation expert to be appointed at this stage. The balance sheets would shed light on the valuation of ABC.

Conclusion

34     I therefore order the following:

(a)     That the Plaintiff be required to state on affidavit pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in Items 1, and 3 of ANNEX A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(b)     The Plaintiff shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       The statement of any payouts he has received from the insurance policies set out at page 2 of Annex A annexed to this summons, from the time those policies were in force to date;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     Compliance affidavits are to be filed and served by 3 June 2024;

(d)     Costs submissions in respect of SUM 586 are to be filed and served by way of letter by 20 May 2024 by 5pm, limited to 3 pages each.

35     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars (Amendment No. 1) at paras 1 (e) and (f).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1 (d).

[note: 3]Husband’s AOM at para 4.

[note: 4]Husband’s Reply Affidavit for SUM 586 at para 11; Huband’s Written Submissions for SUM 586 at para 8.

[note: 5]Wife’s Skeletal Submissions at p 8 – 10.

[note: 6]Plaintiff’s Written Submissions for Discovery at para 9.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-05-09","court":"Family Court","case-number":"Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024)","title":"WWS v WWT","citation":"[2024] SGFC 24","url":"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%2F31488-SSP.xml","counsel":["Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff","Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant"],"timestamp":"2024-05-16T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WWS v WWT

WWS v WWT
[2024] SGFC 24

Case Number:Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff; Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant
Parties: WWS — WWT

Civil Procedure – Discovery

Civil Procedure – Interrogatories

9 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Suspicion and distrust are two defining features marking the breakdown of a marriage. This often manifests itself when parties, anticipating divorce, attempt to dispose of, or conceal their assets: see UZN v UZM [2021] 1 SLR 426 (“UZN”); TIT v TIU and another appeal [2016] 3 SLR 1137 at [32]. Such attempts, if successful, would deplete the deferred community of property arising upon the termination of marriage.

2       There is, however, a mechanism by which such attempts may be stifled and brought to light. Parties can, if they suspect that matrimonial assets are being dissipated or concealed, apply for discovery and interrogatories. The respondent to such an application must comply with any order for disclosure. They cannot hide. If they do, the court hearing the ancillary matters can draw an adverse inference from the failure to make full and frank disclosure: UZM at [18] – [21] citing BPC v BPB and another appeal [2019] 1 SLR 608 (see also AFS v AFU [2011] 3 SLR 275 at [40] – [45]).

3       The present case before me concerned a total of four applications taken out by both the Wife and the Husband for discovery and interrogatories. These applications appear to have been motivated by the fact that each party suspected the other of hiding or concealing their assets.

4       I heard oral arguments by counsel for both parties on 2 May 2024. This is my decision in respect of the four applications: SUM 632/2024 (“SUM 632”), SUM 633/2024 (“SUM 633”), SUM 682/2024 (“SUM 682”), SUM 684/2024 (“SUM 684”).

Background

5       The parties were married on 31 May 2007. They had a child shortly thereafter. In the years that followed, the family weathered the vicissitudes of life together. The Husband was imprisoned, and the responsibility of caring for the child fell to the Wife. Upon the Husband’s release, Company A was set up. Its’ business lay in the provision of courier services.

6       Relations between the couple, however, were strained, and deteriorated to the point where the Husband moved out of the matrimonial home in July 2021.[note: 1] A few months later, the Husband cut off all contact with the Wife. This was, as far as the Wife was concerned, the straw that broke the camel’s back. She filed for divorce a few months later on 2 August 2022. Interim judgment was granted on 25 October 2022. In an attempt to find common ground on the ancillary matters, parties attended mediation. No resolution was forthcoming.

7       This set parties on the road to an ancillary matters hearing. Parties exchanged their Affidavit of Means (“AOMs”) on 30 October 2023, and were directed to exchange voluntary discovery and interrogatories in a Case Conference on 9 November 2023.[note: 2]

8       Dissatisfied with what information and documents they had received from this voluntary exchange, the Wife and Husband both took out summons for discovery and interrogatories.

Parties’ application for discovery and interrogatories

The Wife’s application in SUM 632 and SUM 633

9       The Wife’s application for interrogatories were grouped in the following order. First, questions relating to the Husband’s sources of income – specifically, whether he had any other sources of income outside of his job as director of Company A.[note: 3] Second, questions relating to the Husband’s bank accounts – specifically, whether he had any other accounts apart from those disclosed in his AOM.[note: 4]

10     Third, questions relating to whether any other person or entity had held cash on behalf of the Husband.[note: 5] Fourth, questions relating to insurance policies – specifically, whether the husband had held any other insurance policies from the date of marriage, apart from those disclosed in his AOM.[note: 6]

11     Fifth, questions relating to the details of any loans or gifts that the Husband had made to any person.[note: 7] Sixth, questions relating to whether the Husband had disposed of any assets (ie, property, cash, cars) that were either owned by him individually or jointly.[note: 8] The Wife also sought an explanation for various deposits and withdrawals from the Husband’s bank account.[note: 9] Finally, the Wife also wanted answers as to the Husband’s current residential address, as well as whether he owned any credit cards, and if so, whether there were any supplementary cards, and an explanation as to what had happened to the $100,000 of cash that had been deposited into the safe box in the matrimonial flat.[note: 10]

12     The Wife takes the position that these interrogatories are relevant in determining whether the Defendant had made a full disclosure of his assets as well as his income. This would have a direct bearing on the division of matrimonial assets.

13     As for the Wife’s application for discovery, that fell into three broad categories. First, for documents pertaining to Company A – these included documents such as Company A’s articles of association and company memorandum and financial statements from 2022 – 2023.[note: 11]

14     The Wife explains that these documents are relevant because they establish her contributions towards the company, as well as the Husband’s earning capacity and/or means. The Wife has also pointed out that there is no reason why the Husband cannot produce these documents given that he is currently the sole director and shareholder of Company A, having removed her name without her consent.[note: 12]

15     Second, documents relating to the Husband’s personal finances – these include CPF transaction statements for the past 12 months, as well as receipts of household expenses.[note: 13] Here, the Wife explains that these documents are relevant because they establish the Husband’s earning capacity and/or means, and are also necessary for the division of matrimonial assets.

16     Third, documents relating to two questions posed in her Request for Interrogatories. These questions concerned whether the Husband had any other sources of income or credit cards. In relation to the former, the Wife stated, in her affidavit, that the Husband had other businesses apart from Company A.[note: 14] She therefore sought documents (ie, ACRA business profile, financial statements) relating to those businesses. As for the latter, the Wife had also stated that the Husband had other credit cards,[note: 15] and sought statements for those credit cards for the past 12 months.

The Husband’s application in SUM 682 and SUM 684

17     The Husband’s application for interrogatories all related to the Wife’s finances. He sought information about her source of income,[note: 16] details about her bank accounts (including inflows and outflows of funds),[note: 17] and whether she had taken any loans from her insurance policy which was disclosed in her Affidavit of Means (“AOM”).[note: 18]

18     The Husband’s application for discovery mirrored his request for interrogatories.[note: 19]

19     The Husband justified his request for interrogatories and discovery on the basis that he had reason to believe that the Wife had worked for other companies, apart from those disclosed in her AOM, and been paid by these companies. The Husband also claimed, in his affidavit, that despite working and drawing a good income in addition to a lump sum of $122,000 that she had amassed, it was puzzling that she only had the sum of $339.30 left in her bank account.[note: 20] In this vein, this made it necessary for him to get hold of her account statements with the banks and financial institutions.[note: 21]

20     As for the Wife’s insurance policies, the Husband’s position was that information and documents relating to those policies were necessary to confirm if those policies had been purchased prior to the marriage. This would allow the court to determine whether these policies should be considered a matrimonial asset.[note: 22]

My decision

The law on discovery and interrogatories in family proceedings

21     Discovery and interrogatories allow parties to a divorce proceeding to seek further information and documents from the other following the filing of the first AOM. The former concerns the disclosure of documents, whilst the latter allows for information to be sought in the form of answers to questions posed: UJN v UJO [2018] SGFC 47 (“UJN”) at [9].

22     Rules 63 – 77 of the Family Justice Rules 2014 (“FJR”) govern the process of discovery and interrogatories in ancillary matters proceedings. Parties seeking discovery and interrogatories must establish that their request for information or documents are not only relevant, but also necessary for the fair and efficient disposal of the matter: UJN at [10].

23     It has been stated that the test for what is relevant in family cases is very wide: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13]. The reason for this is to ensure that the issues are properly delineated, and that all the necessary evidence is made available by the time of the ancillary hearing.

24     This, however, does not mean that discovery or interrogatories will automatically be allowed once their relevance to the ancillary matters hearing can be shown. Necessity must also be established. In the context of discovery, this means that the court must “strike a balance between the importance and relevance of the documents sought and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party if an order to produce documents or provide information is made”: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26] citing Tan Bin Yong Christopher at [13].

25     Having sketched out the broad principles governing applications for discovery and interrogatories, I turn now to set out my reasons in respect of the applications filed by both the Wife and Husband.

SUM 633

26     I deal, first, with the Wife’s application for interrogatories. It was clear to me that the Wife was seeking these interrogatories because she did not believe the Husband’s answers. Indeed, she had said as much in her affidavit.[note: 23] Her counsel had also gone to great lengths in the course of oral arguments, and referred me to various documents which allegedly showed that the Husband had lied in his responses given on 2 February 2024.

27     The Wife is perfectly entitled to disbelieve the Husband’s response, and to mount a vigorous argument that he had been dissipating assets, but the proper forum to ventilate this is at the hearing of ancillary matters. I am not concerned as to the truth of the Husband’s answers, but rather, the sufficiency of those answers: UJN at [12].

28     How then is one to assess the sufficiency of answers in response to interrogatories? It is perhaps useful to look at an example. In Rasbotham v Shropshire Union Railways and Canal Company [1882 R. 2434] 24 Ch D 110 (“Rasbotham”), the plaintiffs, who were owners of water mills and had the statutory right to draw water from the river, sued the defendants, alleging that they had, through their own acts of negligence, polluted the river from which water was drawn for their mill. The defendants sought interrogatories asking the plaintiffs to give a list of specified dates on which the operation of the water mills had allegedly been interfered with. The plaintiffs’ response was that they were unable to specify the particular days on which the interference had taken place.

29     North J dismissed the defendants’ objection that the answer given was insufficient. In reaching this conclusion, North J distinguished the earlier case of Bolckow, Vaughan, & Co. v Fisher and others [1882] 10 QBD 161 (“Bolckow”), which stood for the proposition that where a man is “interrogated as to what he did by his servants or agents, he is not entitled to say that he will not ask them about it" (Rasbotham at p 112). The interrogatory posed did not specifically query the plaintiffs as to what their agents or servants knew. There was also nothing in the present case to show that the “acts referred to [had] been done in the presence of the plaintiffs’ servants or agents”.

30     Short of stating the obvious, in assessing the sufficiency of the response, one must look closely at the wording of the interrogatory posed, as well as the response given. Exactly what is it that is being asked? Has it been answered?

31     Returning to the present application, having read the Husband’s responses, I was satisfied that his answers to 31 out of the 32 interrogatories (Items 1 – 31) posed were indeed sufficient. He had directly answered these 31 questions posed to him. Where the questions posed had sought details, the Husband had provided them.

32     In relation to queries about his other sources of income, he had stated that he had none. As for details of other accounts or investments he may have had with financial institutions or banks, he answered in the affirmative and disclosed the details sought. When queried about whether others had held cash on his behalf, he replied in the affirmative. He stated that the Wife held cash, to the tune of $122,000, on his behalf.

33     As for the interrogatories about other insurance policies he may have had, he stated that, as far as he could remember, he did not own any other insurance policies apart from those disclosed in his AOM.[note: 24] As to whether he had made any loans or gifts, he stated that he had not made any loans to any person, but he had gifted a gold bangle to his mother.[note: 25]

34     The Wife had also asked whether he had disposed of any assets – to which the Husband had replied in the negative.

35     The next set of questions required the Husband to explain various withdrawals and deposits to his personal account. The Husband’s responses were sufficient – he not only set out the details sought (such as owner of the account to whom the monies had been transferred), but also explained the purpose of the transfer.

36     Finally, in relation to the set of miscellaneous interrogatories pertaining to the Husband’s current residence, as well as whether he had any other credit cards apart from those disclosed in his AOM, the Husband had, again, provided the details sought.

37     The one response which I did not find to be sufficient was that in respect of Item 32. This was the interrogatory posed:

What has happened to the cash amount more than $100,000.00 deposited earlier into the safe box in the matrimonial flat.

38     In stark contrast to his previous responses, all the Husband offered was: “no reply”. This is not a sufficient answer. The interrogatory seeks to know what has become of the cash. It is no answer to simply state “no reply”.

39     I therefore allow the Wife’s application in respect of Item 32. Her application in respect of Items 1 – 31 is disallowed, for the reasons that I have set out above.

SUM 632

40     I turn now to the Wife’s application for discovery. The first broad category of documents for which discovery was sought related to Company A (Items 1 – 10). The ACRA records disclosed in the Husband’s AOM showed that he was the sole director and shareholder of Company A.[note: 26]

41     The principles relating to discovery of documents belonging to a company of which the spouse was a director and shareholder, which was laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194), are thus relevant:

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)    If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i) the extent of the shareholding of the husband;

(ii) whether it amounts to control of the company;

(iii) whether the minority shareholders are adverse to him;

(iv) how the board of directors is constituted; and

(v) whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

42     The Wife appeared to take the position that Company A was the Husband’s alter ego – this meant that the documents set out in Items 1 – 10 were indeed in his possession and thus ought to be disclosed.

43     I was satisfied that Company A was indeed the Husband’s alter ego. There was no other evidence to the contrary. To borrow the words of Lord Denning in Lonrho Ltd and anor v Shell Petroleum and anor [1980] QB 358 at p 371, the Husband’s power over Company A was so complete such that he should be able to disclose the documents of the company that were sought in these proceedings.

44     I would, however, at this juncture, observe that the idea of a company being an alter ego in the context of a discovery application is subtly different from the context of piercing the corporate veil. The former inquiry is concerned with assessing whether the spouse’s control over the company is so domineering such that they would likely have, and be able to disclose, the company documents sought without requiring the consent of the company’s board. The latter, however, is concerned with questions of liability – if the company is carrying on the business of its controller and incurs liability as a result, the controller cannot take cover behind the company’s corporate form: see Dialectic PR LLC v Brilliante Resources International Pte Ltd [2023] SGHC 39 at [49] citing Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 (“Alwie”) at [96], citing NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd [2011] 2 SLR 565 at [31] and Zim Integrated Shipping Services Ltd v Dafni Igal [2010] 2 SLR 426 at [86]–[88].

45     As to which documents should be disclosed, I allow the Wife’s request in relation to Items 1 – 4, and Items 6 – 9. Item 1, which was the memorandum and articles of association of the company at the time it was incorporated, was relevant because the Wife had alleged that the Husband had removed her as a shareholder and intended to downplay her contributions to Company A.[note: 27]

46     As for items 2 – 4, and 6 – 9, I was of the view that they were relevant towards showing the value of Company A at the ancillary matters hearing. These items included, amongst other things, financial statements (which I understood to be a request for the audited financial statements) and the corporate income tax return form as well as bank statements. The Wife had also asked for the tenancy agreement and list of company vehicles (Items 4, 6, 7, and 8) – these were also relevant towards the valuation of Company A. These documents would show whether Company A’s assets had been dissipated, and also give a clearer picture of its expenses.

47     In light of the above, I will disallow the Wife’s request for a valuation report (Item 9).

48     As for the Wife’s request in relation to Item 5, that too, is disallowed. Item 5 was the CPF list of Company A’s employer submissions statement. Counsel for the Wife argued that it was relevant to showing the company’s value, as well as ascertaining who were Company A’s employees, and whether the Husband was an employee. I disagree. Item 5 was not relevant towards valuing the company – the company’s payroll would have been reflected in the financial statements, which the Wife had also asked for. There were also other documents that could be sought to show whether the Husband was indeed Company A’s employee. Finally, as counsel for the Husband quite rightly pointed out, Item 5 would contain CPF contributions of other employees that were, and should remain, confidential.

49     I turn now to deal with the next category of documents which related to the Husband’s personal finances.

50     Item 11 was a request for the Husband’s CPF statements for the past 12 months. Counsel for the Husband characterised this request as a fishing expedition. In response, counsel for the Wife argued that the CPF statements would be a more accurate reflection of the Husband’s salary, and also allow for the numbers to be tallied with the payslips that had been disclosed.

51     I will allow the request for Item 11. The CPF statements were clearly relevant towards demonstrating the Husband’s earning capacity and means.

52     As for Items 12 – 14, these were requests for receipts evidencing the Husband’s expenditure on, amongst other things, household expenses and property tax. I will disallow this request. As I had pointed out to counsel for the Wife during the hearing, if the Husband has not disclosed these receipts, that will only be to his detriment at the hearing of ancillary matters.

53     I come now to the last two items. Item 15 related to Item 1 of the Wife’s request for interrogatories. She wanted the Husband to produce documents, including the ACRA business profile, financial statement (which I, again, understood to be a request for the audited financial statements), corporate income tax form and valuation of the business.

54     This request is not well framed. The Wife’s real interest was in Company B, which had an almost similar name to Company A. She had disclosed ACRA records of Company B in her affidavit which showed the Husband being listed as a shareholder and director.[note: 28] These ACRA records also showed that Company B had been incorporated on 30 May 2022.[note: 29]

55     In the circumstances, I will allow Item 15 only to the extent that the Husband is to disclose the bank statements of Company B from 30 May 2022 to date. The Husband is also to disclose, if available, the audited financial statements of Company B for the financial years 2022 and 2023.

56     Item 16 was a request related to Item 31 of the Wife’s request for interrogatories. As I have rejected the Wife’s request (above at [39]), I see no basis to order discovery for Item 16.

57     In summary, Items 1 – 4, 6 – 9, 11, and Item 15 (only to the extent I have stated above), are allowed. Items 5, 10, 12 – 14 and 16 are disallowed.

SUM 682

58     I turn now to deal with the Husband’s application for interrogatories.

59     Item 8 required the Wife to disclose if she had any other sources of income. Items 9 – 12 required the Wife to, if she indeed had any other sources of income, to provide details – this included, amongst other things, the source and frequency of such income as well the banks or financial institutions within which she had deposited such income.

60     The Wife’s response to Item 8 was that “there was no such income”.[note: 30] Counsel for the Husband justified the request on the basis that the Wife was not honest in her answer.

61     This, however, is not a valid justification on which to seek interrogatories. The rule is that answers to interrogatories should be sufficient. As I have already pointed out, any quarrel as to the truth of the answers given should be taken up at the ancillary matters hearing (see UJN at [12]). I thus disallow the Husband’s request in relation to Items 8 – 12.

62     I turn now to Items 13 and 14. Item 13 was a request for the Wife to state whether she had, in the preceding 3 years, maintained any account or investment in any type of financial institution in Singapore or abroad. Item 14 required the Wife to disclose the relevant details, if she indeed had such accounts.

63     The Wife’s answer to Items 13 was:

“It is in the POSB account under the Plaintiff’s name.”

64     This is an insufficient answer. The question posed was whether she had maintained any account or investment with any other financial institutions either in Singapore or abroad. The Wife had, in her response, entirely side-stepped this question. I will therefore allow the Husband’s request for Items 13 and 14.

65     I come now to the final two interrogatories sought: Items 28 and 29. These questions required the Wife to state whether she had taken any loans from her insurance policies as stated at paragraph 7 of her AOM, and if so, to state the quantum of the loan, when it was taken, and the reason for taking the loan.

66     The Wife’s response was “N.A.”. As her counsel explained, this response was provided because she had not taken any loans from those insurance policies. This was, obviously, not good enough for the Husband. As his counsel explained – if such loans had indeed taken, then the question should be answered in the affirmative.

67     I allow the Husband’s request in relation to items 28 and 29. The response was insufficient. I would add, however, that had her response to item 28 been that no such loans were taken out, then her answer of “N.A.” to item 29 would be perfectly acceptable. That is because the manner in which item 29 was framed clearly showed that it was a follow-up question to that posed in item 28.

68     To sum up, in respect of SUM 682, I allow the Husband’s request in respect of Items 13, 14, 28, and 29. The Husband’s request in respect of Items 8 – 12 is denied.

SUM 684

69     I come now to the Husband’s request for discovery.

70     The Husband sought documents pertaining to the Wife’s payslips and related bank account statements:

(a)     Item 2 was a request for the Wife to furnish payment advice statements if she had, in the preceding 3 years, some other sources of income apart from that declared in her AOM.

(b)     Item 3 was a related request for the Wife to provide bank statements, from January 2022 to date, for the accounts in which payments from her other sources of income had been deposited.

(c)     Item 8 required the Wife to produce, bank account statements for the past 3 years, for the accounts into which her monthly salary had been deposited.

71     Counsel for the Husband argued that while the Wife had disclosed that she was working for her father’s company (“Company X”), and other ride-hailing companies, she had only produced her payslips from Grab. In addition, it was highly suspicious that her personal bank account was depleted, despite her remaining gainfully employed. It was therefore necessary to obtain the Wife’s payslips, and relevant bank account statements, to get a fuller picture of her financial status, and to determine if she was truly attempting to conceal her sources of income.

72     In response, counsel for the Wife argued that this request was simply a tit-for-tat response by the Husband. In any event, the request, as framed, was not for payslips, and the Wife was not trying to evade her disclosure obligations.

73     There can be no quibble that the documents sought for are indeed relevant to the ancillary matters hearing. There is a point, however, as to whether these documents were indeed in the Wife’s possession, custody or power (VTQ at [26(b)]).

74     In this connection, there was evidence to show that the Wife had indeed been driving for other ride-hailing companies. For example, these were some of the payouts that the Wife had received in the months of August and September:

(a)     Tada cashout, $962.72 (14 August)[note: 31]

(b)     Gojek cashout, $248.37 (20 August)[note: 32]

(c)     Ryde cashout, $80 (20 August)[note: 33]

(d)     Tada cashout, $907.13 (21 August)[note: 34]

(e)     Gojek cashout, $70.45 (28 August)[note: 35]

(f)     Ryde cashout, $80.90 (28 August)[note: 36]

(g)     Tada cashout, $674.34 (28 August)[note: 37]

(h)     Tada cashout, $521.38 (4 September)[note: 38]

(i)     Gojek cashout, $65.45 (4 September)[note: 39]

It is also evident that both Company X, and Company A, had made CPF contributions to the Wife’s CPF accounts.[note: 40]

75     It thus stands to reason that the Wife, having received payment from other ride-hailing applications, as well as Company X and Company A, should be able to produce the relevant payslips and bank statements. If she does not have them in her possession, or cannot obtain copies, she must set out her explanation in an affidavit with the supporting documentation (if any): VTQ at [26(c)]. She cannot tiptoe around her obligation of disclosure in these proceedings with the bare assertion that she does not have the documents that were requested for.

76     I would note that the Wife had, in an earlier affidavit, to which her counsel referred me, stated that she had been banned by all the other ride-hailing companies, except Grab.[note: 41] The point, which counsel appeared to allude to, was that because the Wife had been banned from these ride-hailing platforms, she would not have been able to obtain these payslips. If this is indeed the case, the Wife should, as I have highlighted above, explain the same in an affidavit and exhibit the relevant documents in support.

77     I therefore allow the Husband’s request for discovery in relation to Items 2, 3, and 8.

78     The next request, Item 5, was for the Wife to disclose the transaction history of her personal bank account with POSB, from January 2022 to May 2023 as well as from December 2023 to date. The Husband wanted these records because, as his counsel put it, it was inconceivable that she only had a few hundred dollars left in her personal bank account. Counsel for the Wife pointed out that she had already disclosed 6 months’ worth of statements and that administrative charges would likely have to be incurred to procure the records sought.

79     I allow the Husband’s request for Item 5. As far as I could tell, the marriage was on the rocks when the Husband left the matrimonial home in July 2021. It would therefore be useful, for the court hearing the ancillary matters, to have an idea of the Wife’s finances during the breakdown of the marriage and prior to the filing of divorce proceedings (see Tan Bin Yong Christopher at [19]).

80     Apart from the Wife’s personal bank account statements, the Husband also sought, in Item 6 of his request for discovery, the account statements of the joint bank account which the Wife held with their daughter. The Husband’s contention is that the Wife should be able to produce these documents but has refused to do so. In response, counsel for the Wife argued that there was no need to produce these documents because it was not a matrimonial asset.

81     I allow the Husband’s request for Item 6. It is the court that decides what constitutes a matrimonial asset. Parties must strictly observe their disclosure obligations and cannot “tailor the extent of their disclosure in accordance with their own views on what constitutes their matrimonial assets”: UZN at [17].

82     Item 7 was related to Items 8 – 12 of the Husband’s request for interrogatories. In short, if the Wife had accounts or investments with other financial institutions, apart from those disclosed in her AOM, she was to produce statements from these accounts.

83     While I had rejected Items 8 – 12 of the Husband’s request for Interrogatories, it did not follow that Item 7 of the Husband’s request for discovery should also be rejected. I cannot proceed on the basis that discovery of these documents should be disallowed because the Wife had no such accounts. To do so would be to implicitly accept that her answer to Items 8 – 12 of the Husband’s request for interrogatories were true. That, however, is an assessment that must be left to the court hearing the ancillary matters.

84     It was, however, clear to me that such documents, if they existed, were clearly relevant to the disposal of ancillary matters. I thus allow Item 7 of the Husband’s request for discovery.

85     I come now to the Husband’s request for documents relating to the Wife’s insurance policies as set out in Items 10 – 12. Counsel for the Husband argued that these documents were relevant in determining whether they formed part of the matrimonial pool of assets. Further, any loans taken out would have been a draw down on the matrimonial assets. Counsel for the Wife contended, in response, that these insurance policies had been acquired before marriage and so were not part of the matrimonial pool, and that in any event, no loans had been taken out.

86     I allow the Husband’s request in relation to Items 10 – 12. As I have noted above (at [81]), it is the court that decides whether a particular asset is indeed a matrimonial asset. These documents sought were clearly relevant towards determining whether they were matrimonial assets or not.

87     The final request, in Item 14, was for the Wife to furnish all documents supporting her replies to the Husband’s request for interrogatories. This request is denied. What the Husband has sought, in interrogatories, was similarly sought in his request for discovery. He basically wanted information as to the Wife’s sources of income, whether she had any other bank accounts apart from those disclosed in the AOM, details about the joint account she held with their daughter, and her insurance policies. Given my orders in respect of his request for discovery and interrogatories, I did not think it was necessary to grant his request in respect of Item 14.

88     To sum up, the Husband’s request in relation to Items 2, 3, 5, 6, 7, 8, 10 – 12 are allowed. The Husband’s request in relation to Item 14 is disallowed.

Summary of orders made

89     These are the orders that I make in respect of the four applications:

SUM 633

(a)     The Defendant shall answer the interrogatories as set out in Item 32 of the Request for Interrogatories annexed to this summons on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 632

(b)     The Defendant shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 3, 4, 6, 7, 8, and 9 of the Request for Discovery annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     The Defendant shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       the bank statements of Company B from 30 May 2022 to date; and

(ii)       the audited financial statements of Company B for the financial years 2022 and 2023;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

SUM 682

(d)     The Plaintiff shall answer the following interrogatories set out in Items 13, 14, 28, and 29 in Schedule B annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 684

(e)     The Plaintiff shall state on Affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents as set out in Items 2, 3, 5, 6, 7, 8, 10, 11, and 12 of Schedule A annexed to this summons, whether the same is in her possession, custody or power, and if not in her possession, custody or power, when she parted with it and what has become of it.

90     In addition to the above orders, I also order that:

(a)     Compliance affidavits are to be filed and served by 14 June 2024, by 5pm.

(b)     Costs submissions in respect of SUM 633, 632, 682 and 684 are to be filed and served by way of letter by 16 May 2024 by 5pm, limited to 3 pages each.

Conclusion

91     I conclude with one brief observation. It was not lost on me that there was a great deal of acrimony between the parties. That is, perhaps, to be expected in a family dispute, but I must stress that the Family Court is not a place for parties to do battle.

92     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars dated 2 August 2022 at 1(c)(vii).

[note: 2]Minute Sheet dated 9 November 2023.

[note: 3]SUM 633, Request for Interrogatories, Items 1 – 4.

[note: 4]SUM 633, Request for Interrogatories, Items 5 – 6.

[note: 5]SUM 633, Request for Interrogatories, Items 7 – 8.

[note: 6]SUM 633, Request for Interrogatories, Items 9 – 11.

[note: 7]SUM 633, Request for Interrogatories, Items 12 – 15.

[note: 8]SUM 633, Request for Interrogatories, Items 16 – 17.

[note: 9]SUM 633, Request for Interrogatories, Items 18 – 29.

[note: 10]SUM 633, Request for Interrogatories, Items 30 – 32.

[note: 11]SUM 632, Request for Discovery, Items 1 – 10.

[note: 12]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [12].

[note: 13]SUM 632, Request for Discovery, Items 11 – 14.

[note: 14]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25].

[note: 15]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [31].

[note: 16]SUM 682, Schedule B, Items 8 – 12.

[note: 17]SUM 682, Schedule B, Items 13 – 14.

[note: 18]SUM 682, Schedule B, Items 28 – 29.

[note: 19]SUM 684, Schedule A, Items 2 – 3 (Sources of Income); Items 5 – 8 (bank account details); Items 10 – 12 (Insurance Policies).

[note: 20]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [34].

[note: 21]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [29].

[note: 22]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [41] – [43].

[note: 23]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25] – [31].

[note: 24]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 13.

[note: 25]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 14.

[note: 26]Husband’s AOM at pp 30 – 33.

[note: 27]Wife’s Reply Affidavit filed 26 April 2024 at [5] – [7].

[note: 28]Wife’s Reply Affidavit filed 26 April 2024 at p 35.

[note: 29]Wife’s Reply Affidavit filed 26 April 2024 at p 33.

[note: 30]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024.

[note: 31]Wife’s AOM at p 89.

[note: 32]Wife’s AOM at p 91.

[note: 33]Wife’s AOM at p 91.

[note: 34]Wife’s AOM at p 91.

[note: 35]Wife’s AOM at p 93.

[note: 36]Wife’s AOM at p 93.

[note: 37]Wife’s AOM at p 93.

[note: 38]Wife’s AOM at p 96.

[note: 39]Wife’s AOM at p 96.

[note: 40]Wife’s AOM at p 71.

[note: 41]Wife’s Affidavit dated 28 March 2024 at [30].

"},{"tags":["Family Law – Interlocutory Injunction"],"date":"2024-05-09","court":"Family Court","case-number":"D 2347/2023 (FC/SUM 3775/2023)","title":"WWG v WWH","citation":"[2024] SGFC 23","url":"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%2F31478-SSP.xml","counsel":["Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff","Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant"],"timestamp":"2024-05-15T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWG v WWH

WWG v WWH
[2024] SGFC 23

Case Number:D 2347/2023 (FC/SUM 3775/2023)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff; Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant
Parties: WWG — WWH

Family Law – Interlocutory Injunction

9 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”. The parties were married on 22 May 2011 and an Interim Judgment of Divorce was granted on 1 February 2024. They have three children, aged 14, 12 and 9.

2       The parties have a number of assets that included several immovable properties.[note: 1] FC/SUM 3775/2023 (“SUM 3775”) is the Wife’s application for an injunction to restrain the Husband from selling one of the immovable properties, [Property A], pending the determination of the ancillary matters. Property A is a condominium in the sole name of the Husband.[note: 2]

3       I heard and dismissed the application on 13 March 2024. The Wife filed a request for further arguments on 20 March 2024. I heard the further arguments on 4 April 2024 and affirmed my decision to dismiss the application.

4       As the Wife has appealed against my decision vide HCF/RAS 5/2024 filed on 17 April 2024, I now set out the grounds of my decision.

The Wife’s application

5       The Wife says that Property A is a matrimonial asset.[note: 3] She says that she paid for the fixture and fittings and also the downpayment. She says that she resided at Property A with her three children from around 2017 to 16 April 2017.[note: 4] As a result of the Husband’s violent behaviour and gambling habit, she tried many times to divorce the Husband and each time the Husband would promise that he would change.[note: 5]

6       The Wife says that the Husband had, on 19 December 2021, agreed to give her 20% of the net sale proceeds in the event that Property A is sold. This was in return for the Wife forbearing to pursue divorce proceedings.[note: 6] She exhibited an email from the Husband where he stated as follows:[note: 7]

I will give [Wife] 20% share of nett sales proceeds in the event of sale of [Property A] condo, and if we buy another replacement property she shall maintain her 20% share of new property.

7       The Wife says that the Husband also promised many times that the children and her can stay in Property A.[note: 8] However, the Husband broke his promises and continued to be violent. She then started the divorce proceedings.[note: 9]

8       The Wife says that the Husband is trying to sell Property A to pay off his gambling debts and failed investments[note: 10] and wants an injunction to stop him from doing so.

The Husband’s response

9       The Husband does not dispute that Property A is a matrimonial asset.[note: 11]

10     The Husband says that as the marriage is a sole income marriage,[note: 12] he would take up loans using credit cards to fund the purchase of the matrimonial properties. Thereafter, for tax and stamp duty purposes, he would arrange for the properties to be held under the Wife’s name.[note: 13]

11     The Husband says there are four immovable properties in the Wife’s sole name.[note: 14] One of the immovable properties, a HDB flat, was the matrimonial home which he had fully paid for before the marriage.[note: 15] The Husband says that as part of the family financial arrangement, he transferred the HDB flat to the Wife so that he was able to free up his name and avoid ABSD to purchase Property A.[note: 16]

12     The Husband says that apart from the immovable properties, the matrimonial assets included the parties’ bank accounts and CPF monies.[note: 17] The Husband says that the Wife had throughout the marriage, transferred matrimonial monies to her parents or brother in China without his consent. The Husband believes that the Wife has bank account and immovable property in China.[note: 18]

13     The Husband says that the value of the matrimonial pool is about $2,285,030.[note: 19] As the marriage lasted for about 12 years,[note: 20] the Husband believes that the Wife is entitled to about 30% of the matrimonial pool. Even if, for the sake of argument, the Wife is entitled to 50% of the matrimonial pool which is about $1,142,515, the money in the matrimonial pool is sufficient to meet the Wife’s share of the matrimonial assets.[note: 21]

14     The Husband says that if Property A is sold for $1,560,000, after repaying the outstanding loan which is about $802,619.51 and after refunding his CPF of about $403,071.04, the cash sale proceeds would only be about $354,309.45.[note: 22] This is around 15.5% of the matrimonial pool.[note: 23]

15     Hence, the sale of Property A does not prejudice the Wife and the estimated sale proceeds can in any event be notionally added back into the matrimonial pool for division.[note: 24] On the other hand, the Husband says that he will suffer irreversible harm if he is sued by the banks and made a bankrupt if he is unable to pay off his credit card debts.[note: 25]

Analysis

16     Where any matrimonial proceedings are pending, the court may grant an injunction to prevent the sale of a matrimonial asset pending the ancillary matters hearing. This is pursuant to s 132 of the Women’s Charter 1961 (2020 Revised Edition) (“the Charter”), which states as follows:

132.—(1)    Where —

(a)    any matrimonial proceedings are pending;

…

the court has power on application —

(f)    to set aside any disposition of property, if it is satisfied that the disposition of property has been made within the preceding 3 years, with the object on the part of the person making the disposition of —

(i)    reducing that person’s means to pay maintenance; or

(ii)   depriving that person’s wife, former wife, incapacitated husband or incapacitated former husband of any rights in relation to that property; and

(g)    if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition.

(2)    In this section —

“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made;

“property” means property of any nature, movable or immovable, and includes money.

17     Section 132 of the Charter was considered in Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant) (“Lee Chi Lena”) [2011] SGHC 91 where Choo Han Teck J set out the following principles:

Given the time lag between the initiation of matrimonial proceedings and a final judgment of divorce, disposing matrimonial assets and translating them into new assets by the parties in the ordinary course of living and investment is frequently necessary, especially when each of them are seeking to begin a new life. Thus it cannot be that every decision to dispose of a matrimonial asset by one spouse is susceptible to injunctive intervention by the other spouse. A balance must be struck. Therefore, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. In determining whether there is prejudice in this context, the court should take into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party. Hence, in a case where there is only one matrimonial asset of substantial value and a husband wishes to dispose of it, a court should allow a wife's application for an injunction because there are no adequate remaining assets to satisfy a likely award in her favour in those circumstances. On the present facts, however, that is not the case. There are other properties of substantial value available.

[emphasis in bold added]

18     As noted in the above passage, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. The question of prejudice is to be determined by taking into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party.

19     Although the Wife bears the burden of proof, she made no effort to show why the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. This is not withstanding the fact that she had every opportunity to respond to the Husband’s reply affidavit, where he had set out clearly his computation of the asset pool, the likely division proportion and why the Wife would not be prejudiced.

20     The Wife says that parties are “still in the process of preparing their cases for the division of assets, so neither can submit with the exactitude of evidence their contribution”.[note: 26] I did not find this to be a convincing explanation for the lack of effort on her part, bearing in mind that she is the party making the application. She could have at least provided a prima facie case of the likely division proportion from her perspective, especially since she had the benefit of reading the Husband’s reply affidavit.

21     Instead, the Wife submitted that Property A was a matrimonial home and if the property is sold, she “will be prejudice (sic) in that it (sic) would not be able to purchase [Property A] from the Defendant” [note: 27]. Even on this point, I noted that neither her supporting affidavit nor reply affidavit reveal any intention on her part to purchase Property A from the Husband. Nor did she explain in what way she would be prejudiced if she could not own Property A. It should be noted that she is the sole legal owner of the family’s HDB flat which she occupies with the children and three other immovable properties. So there is no question of the Wife and the children not having a place to stay.

22     What is clear from her evidence is that the parties had envisaged that Property A may be sold, as she was promised a 20% share of the sale proceeds in the event of a sale. The Wife was aware that the Husband had difficulty holding on to Property A and might be compelled by the credit card company to sell the property if he could not repay his debts.[note: 28]

23     As the Wife did not put forth any evidence that would enable me to properly consider if she would be prejudiced by the sale of Property A, I was left with the Husband’s evidence which shows that there are adequate matrimonial assets which will remain to satisfy the likely division proportion in favour of the Wife. In the circumstances, I found that the Wife had not discharged the burden of proof.

24     The Wife had clarified in her further arguments that she was relying on the principle in American Cyanamid Co v Ethicon Ltd [1975] 1 ALL ER 504 (“American Cyanamid”).[note: 29] She submitted that the purpose of the interlocutory injunction is to maintain the status quo pending the trial and the balance of convenience lies in granting the interlocutory relief.[note: 30]

25     In my view, I do not think that the American Cyanamid principle is applicable in the context of pending matrimonial proceedings where the injunctive relief being sought is to prevent the sale of a matrimonial asset pending the determination of the ancillary matters. This is because there is an express statutory provision in the Charter that applies specifically to this type of injunction.

26     I find support for this line of reasoning in TQ v TR [2009] SGCA 6 where the Court of Appeal (“CA”) discussed the interaction of statute law and the common law in the context of the legal status of a prenuptial agreement in Singapore. The CA held (at [50]):

Put simply, where one or more of the provisions of the Act expressly covers a certain category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is silent, then the legal status of the prenuptial agreement concerned will be governed by the common law.

[emphasis in original]

27     By a parity of reasoning, s 132 of the Charter is the governing law in the present case.

28     In any event, as noted in TRW Inc v Terus Jaya Auto (S) Pte Ltd [1992] SGHC 31, a case authority cited by the Wife:

The principle in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 is that an injunction should not be granted unless otherwise damage is likely to be caused which could not be remedied by money compensation. In a case where the grant of an injunction may result in damages not being compensable, the court must determine the case according to the balance of convenience.

29     As noted earlier, the Wife has not shown that the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. Neither has she shown that damage is likely to be caused which could not be remedied by money compensation. Consequently, even on the American Cyanamid principle, she would not have succeeded in her application for an interlocutory injunction.

30     For the above reasons, the application was dismissed.

31     The Husband had offered to provide the Wife with a statement of accounts on how the sale proceeds of Property A would be utilised. The balance of the sale proceeds is to be deposited into the conveyancing account of his solicitors pending the outcome of the ancillary matters hearing. In light of the concession by the Husband, I made the order accordingly.

[note: 1]Wife’s affidavit dated 9 December 2023 (P1) at [5]; Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 2]Husband’s affidavit dated 8 February 2024 (D1) at p 8.

[note: 3]Wife’s affidavit dated 9 December 2023 (P1) at [10].

[note: 4]Wife’s affidavit dated 9 December 2023 (P1) at [11].

[note: 5]Wife’s affidavit dated 9 December 2023 (P1) at [14].

[note: 6]Wife’s affidavit dated 9 December 2023 (P1) at [15].

[note: 7]Wife’s affidavit dated 9 December 2023 (P1) at p 28.

[note: 8]Wife’s affidavit dated 9 December 2023 (P1) at [16].

[note: 9]Wife’s affidavit dated 9 December 2023 (P1) at [18].

[note: 10]Wife’s affidavit dated 27 February 2024 (P2) at [23].

[note: 11]Husband’s affidavit dated 8 February 2024 (D1) at [7].

[note: 12]Husband’s affidavit dated 8 February 2024 (D1) at [15(e)].

[note: 13]Husband’s affidavit dated 8 February 2024 (D1) at [15(b)].

[note: 14]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 15]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 16]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 17]Husband’s affidavit dated 8 February 2024 (D1) at [25].

[note: 18]Husband’s affidavit dated 8 February 2024 (D1) at [28].

[note: 19]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 20]Husband’s affidavit dated 8 February 2024 (D1) at [33].

[note: 21]Husband’s affidavit dated 8 February 2024 (D1) at [34].

[note: 22]Husband’s Submissions dated 11 March 2024 at [11].

[note: 23]Husband’s Submissions dated 11 March 2024 at [12].

[note: 24]Husband’s affidavit dated 8 February 2024 (D1) at [36].

[note: 25]Husband’s affidavit dated 8 February 2024 (D1) at [37].

[note: 26]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [6].

[note: 27]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [9].

[note: 28]Wife’s affidavit dated 27 February 2024 (P2) at [20].

[note: 29]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [11].

[note: 30]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [13].

"},{"tags":["PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction"],"date":"2024-04-30","court":"Family Court","case-number":"FC/S 17/2020","title":"WWE v WWF","citation":"[2024] SGFC 21","url":"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","counsel":["Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff","Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant."],"timestamp":"2024-05-06T16:00:00Z[GMT]","coram":"Shobha Nair","html":"WWE v WWF

WWE v WWF
[2024] SGFC 21

Case Number:FC/S 17/2020
Decision Date:30 April 2024
Tribunal/Court:Family Court
Coram: Shobha Nair
Counsel Name(s): Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff; Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant.
Parties: WWE — WWF

PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction

30 April 2024

District Judge Shobha Nair:

Introduction

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.

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.

Facts

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[note: 1] 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.

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.[note: 2] 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.

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.

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”.[note: 3] 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.

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.

8       Against this factual backdrop, the respective cases of the parties were positioned.

Is the will executed on 3 August 2012 valid?

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 (Yogambikai Nagarajah v Indian Overseas Bank & anor. appeal).[note: 4] 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.

(a)   Legislative requirements

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:

Section 5(2):     A will shall be treated as properly executed if its execution conformed to the internal law in force –

(a)     in the territory it was executed;

(b)     in the territory where the testator was domiciled at the time –

(i)     When the will was executed; or

(ii)    Of his death.

(c)     in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or

(d)     in the state of which the testator was a national at either of the times referred to in paragraph (b)

Section 5(3):     Without prejudice to subsection (2), the following shall be treated as properly executed:

(a)     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.

(b)     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.

Section 6(1):     No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).

Section 6(2):     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.

Section 6(3):     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 -

(b)     that a blank space shall intervene between the concluding word of the will and the signature

11     The burden of propounding a will lies in every case upon the party propounding the will (ULV v ULW).[note: 5] 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.

(b)   The evidence of the witness to the execution of the will of 3 August 2012.

12     A Malaysian lawyer who was one of 2 witnesses of the 2012 will provided an affidavit[note: 6] 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.

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.

14     The lawyer/witness went on to explain that he was handed 2 copies of a 3 page will and “I glanced through these documents and noticed it was two copies of a will dated 3 August 2012 with three pages”.[note: 7] 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.

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.

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.[note: 8] 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.

The weight to be accorded to the evidence of the mistress of the deceased.

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.

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.

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.[note: 9]

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.[note: 10] 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:

“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 (sic).”[note: 11]

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.

To what extent should reliance be placed on the handwriting analysis?

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)[note: 12] 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.[note: 13]

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 “original inked signatures of XXX...”[note: 14] 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.

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.

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.

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 Robson & Wakefield v Rocke[note: 15] who said with reference to such analysis that “…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” 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.[note: 16] 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.

Does the delay in the production of the 2012 will create suspicion as to its authenticity?

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.

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[note: 17]. 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.

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[note: 18] 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.[note: 19]

Conclusion

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 Sudha Natarajan v The Bank of East Asia Ltd.[note: 20] 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.

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.

[note: 1]Paragraph 5 of the affidavit of the deceased’s mistress dated 22 November 2022.

[note: 2]Paragraph 10 of the defendant’s affidavit of 10 January 2023.

[note: 3]Exhibit SAAS -1 of the defendant’s affidavit of testamentary scripts dated 4 November 2020.

[note: 4][1990] 2SLR (R) 774.

[note: 5][2019] SGHCF 2.

[note: 6]Affidavit of 23 November 2022.

[note: 7]Ibid. at paragraph 11.

[note: 8]Paragraph 23 of 5 September 2023 submissions.

[note: 9]Page 160-162 of NE (Day 3).

[note: 10]Page 62, lines 10-13 of NE (Day 2).

[note: 11]Page 78 at lines 16 – 22, NE (Day 2).

[note: 12]See pages 10-12 of the report exhibited in the expert’s affidavit of 5 January 2023.

[note: 13]Paragraph 5 of the expert’s affidavit of 5 January 2023.

[note: 14]Paragraph 5.1 on page 3 of the report exhibited in the affidavit of the handwriting expert.

[note: 15](1824) 2 Add 53 at [79-80].

[note: 16]Fancini, Simone Ling, “Expert Handwriting Testimony: Is the Writing Really on the Wall?”11 Suffolk J. Trial & App. Advoc. 99 (2006).

[note: 17]Lines 3-17 at pages 146-147 of NE (Day 3).

[note: 18]At page 1 of the Reply of the plaintiff.

[note: 19]Paragraphs 9, 12 of affidavit of 25 November 2022 and lines 2-4 at page 42 of NE (Day 2).

[note: 20][2016] SGCA 66.

"},{"tags":["Succession and Wills – Testamentary capacity – Undue Influence – Whether the testator lacked testamentary capacity at the time of making and executing will – Whether the testator understood the will – Whether the testator made and executed will under undue influence"],"date":"2024-04-29","court":"Family Court","case-number":"Suit No. 1 of 2022","title":"WWI v WWJ","citation":"[2024] SGFC 22","url":"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","counsel":["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."],"timestamp":"2024-05-03T16:00:00Z[GMT]","coram":"Jason Gabriel Chiang","html":"WWI v WWJ

WWI v WWJ
[2024] SGFC 22

Case Number:Suit No. 1 of 2022
Decision Date:29 April 2024
Tribunal/Court:Family Court
Coram: Jason Gabriel Chiang
Counsel Name(s): 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.
Parties: WWI — WWJ

Succession and Wills – Testamentary capacity – Undue Influence – Whether the testator lacked testamentary capacity at the time of making and executing will – Whether the testator understood the will – Whether the testator made and executed will under undue influence

29 April 2024

District Judge Jason Gabriel Chiang:

Introduction

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.

2       During the Matriarch’s lifetime, 3 wills had been executed:

(a)     The 1st Will, which was executed on 22 March 2005 (“1st Will”), bequeathed the Matriarch’s estate, which mainly consisted of the half share of a landed property (the “Estate”), 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 1st Will;

(b)     The 2nd Will, which was executed on 6 April 2017 (“2nd Will”), 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 1st Son. The Plaintiff was appointed as her sole executor and trustee under the 2nd Will; and

(c)     The 3rd Will, which was executed on 19 June 2017 (“3rd Will”), largely mirrored the 1st 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 3rd Will.

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:

(a)     The 3rd Will is declared valid, and thus, revoked the prior 1st and 2nd Wills, regardless as to whether those wills were valid or not;

(b)     The 3rd Will is declared invalid, but the 2nd Will is declared as valid, and thus, revoked the 1st Will, regardless of whether it was valid;

(c)     The 2nd and the 3rd Wills are declared invalid, and the 1st Will is declared to be valid and effective; and

(d)     The 1st, 2nd and 3rd Wills are all declared to be invalid and thus section 7 of the Intestate Succession Act 1967 (“ISA”) applies for the distribution of the estate to the various beneficiaries.

4       Ultimately, I held that both the 2nd and 3rd 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 1st Will had been procured by undue influence to invalidate it. Therefore, the 1st Will was given effect. The Plaintiff and the Defendant, both dissatisfied with my decision, filed their respective appeals.

Facts

The parties

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:

(a)     1st Daughter;

(b)     2nd Daughter;

(c)     3rd Daughter;

(d)     1st Son, the Defendant;

(e)     4th Daughter;

(f)     2nd Son, who was given up for adoption to another family and was wholly uninvolved in these proceedings;

(g)     5th Daughter;

(h)     6th Daughter;

(i)     7th Daughter;

(j)     8th Daughter;

(k)     3rd Son, who was informally adopted into the family, being the son of the Patriarch with another woman;

(l)     4th Son, the Plaintiff;

(m)     9th Daughter; and

(n)     10th Daughter.

(collectively referred to as the “Children”).

The 4th, 5th, 6th, 7th, 8th, 9th and 10th Daughters were the 7 named daughters in the 1st and the 3rd Wills.

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 2nd floor, while the Matriarch occupied the 1st floor of the property.

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.

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:

(a)     Himself, the Plaintiff;

(b)     Dr FN, who had assessed P for issues of mental capacity in July 2017;

(c)     3rd Daughter;

(d)     8th Daughter;

(e)     Estate Planner 1, who had drafted the 2nd Will and witnessed the execution of the same;

(f)     Estate Planner 2, who had witnessed the execution of the 2nd Will;

(g)     2nd Daughter; and

(h)     3rd Son.

9       The Defendant had called 6 witnesses, 2 of whom were expert witnesses:

(a)     Himself, the Defendant;

(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;

(c)     Dr JBL the doctor who assessed the Matriarch’s mental capacity before she executed the Transfer Instrument for 2 JM;

(d)     Dr NBY, the doctor who assessed the Matriarch’s mental capacity before she executed the Statutory Declaration;

(e)     Mr CJH, the lawyer who had drafted the 1st and the 3rd Wills and was also a named witness to the execution of these Wills; and

(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.

10     Both the Plaintiff and the Defendant had their respective translators, but parties agreed that it was not necessary to call them as witnesses.

Background to the dispute

Brief history of the family

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 “Family Business”). The Family Business was largely managed with the assistance of the 1st, 2nd and 3rd Daughters, and the 3rd Son as well as the Defendant. Sometime in the 1990s, the 2nd Daughter left the business as she got married and the 3rd Sister left and became a real estate agent.

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.

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.

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.

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.

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 1st 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.

The Family Residence

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 “old 4 JM”). 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.

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.

19     Sometime around 1980, the Patriarch purchased a house in the Defendant’s name (“old 10 VR”). 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. “new 10 VR” and “10A VR”). 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. “2 JM” and “new 4 JM”). 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.

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 1st to 10th Daughters, and the 3rd and 4th 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 1st to 3rd Daughters and the 3rd Son, as the other Children progressively moved to their own residences. Subsequently, the new 4 JM was transferred to the 1st to 3rd Daughters and the 3rd Son on 26 August 1988, and they independently paid off the remaining loan on the property.

The Patriarch’s passing

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:

(a)     100% of cash or equivalent to the Matriarch;

(b)     50% of 2 JM to the Matriarch and the other 50% of 2 JM to the Plaintiff; and

(c)     25% of the Family Business to the Defendant, and 12.5% to each of the 1st Daughter and the 3rd Son as they were still involved in the management of the Family Business and the 1st and 2nd Daughters already had certain shares of the Family Business.

The Defendant acknowledged that he unfortunately neglected to consider his 7 younger sisters, i.e. the 4th to 10th 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.

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.

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 1st 2nd and 3rd Daughter’s and the 3rd 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.

Arrangements for the Matriarch after the Patriarch’s passing & the execution of the 1st Will.

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 1st 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 1st Will.

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.

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 2nd 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.

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 1st 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 1st Will and he contacted Mr CJH to draft the 1st 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 4th to 10th Daughters and that the remainder would go to him. Mr CJH then attended to the Matriarch for the execution of the 1st Will at the Defendant’s home on 22 March 2005.

28     The Plaintiff alleged that 1st 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.

29     The other Children subsequently came to know of the 1st Will. There were some discussions over executing a new will to replace the 1st Will, particularly with the 8th Daughter having conversations with the Matriarch over this. However, the Matriarch did not change the 1st Will.

The Matriarch’s dementia and the execution of the 2nd Will

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.

31     Unbeknownst to either the Plaintiff or the Defendant, it was suddenly revealed in the testimony of the 3rd 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.

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 (“MMSE”) 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.

33     Notwithstanding this recommendation, the Plaintiff followed through with arrangements for the Matriarch to execute a Lasting Power of Attorney (“LPA”) and the 2nd 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 1st 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 1st 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 2nd Will.

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.

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.

The Matriarch’s execution of the 3rd Will, Transfer Instrument & Statutory Declaration

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 “renovation permit”. 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 1st Will.

37     The Defendant reapproached Mr CJH, who had helped prepare the Patriarch’s will and the Matriarch’s 1st Will, to assist the Matriarch for the 3rd Will. Purportedly on behalf of the Matriarch, the Defendant informed Mr CJH to prepare a fresh will which was similar to the 1st Will save that the gifts to each of the 4th to 10th Daughters was increased from S$5,000 to S$10,000. Mr CJH made the necessary preparations.

38     On 19 June 2017, the Defendant brought the Matriarch to Mr CJH’s office to execute the 3rd 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 3rd Will, and amended the draft based on this. Thereafter, the Matriarch executed the 3rd Will in the presence of Mr CJH and his colleague in the Defendant’s car. Mr CJH recalled that at least after the 3rd 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.

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 “renovation permit” 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 3rd 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 & Wee LLP (“HW”).

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.

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.

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.

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.

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 (“SLA”) required that the Matriarch execute a statutory declaration and to file up a form, “Application for Replacement of Certificate of Title”. Hence, the Defendant made arrangements for this.

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 “considered invalid in view of a high likelihood of being susceptible to manipulation and influence”. 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 2nd Will and was also not in support of the Defendant’s position on the validity of the 3rd Will.

46     Around 20 August 2017, the 8th Daughter, who had been provided with Dr FN’s report from the Plaintiff also forwarded this to the Defendant. The 8th 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 2nd Will and an LPA. This was the 1st time that the 2nd 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.

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.

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.

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 3rd Will upon the Matriarch’s passing.

The Matriarch’s passing and the application for a grant of probate.

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.

51     On 11 February 2020, another law firm engaged by the Defendant then, Wee, Tay & Lim LLP (“WTL”) to apply for a grant of probate for the Matriarch’s estate, wrote to the other Children on this stated intention.

52     On 13 February 2020, the Defendant followed up with an email to the other Children. The 8th 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 3rd Will, failing which there may be a contest of the validity of the 3rd 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 8th Sister and the Defendant arranged to have a discussion.

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 2nd Will and followed up with another reminder on 20 February 2020. The Plaintiff provided a copy of the 2nd 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 & Co (“GJC”).

54     On 21 February 2020, the 8th Daughter, speaking purportedly on behalf of the 7 daughters (i.e. 4th to 10th 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 8th Daughter also clarified that the Matriarch’s bequeaths of S$10,000 to each of the 7 daughters (i.e. 4th to 10th 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 8th 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 3rd Will was the Matriarch’s true will and that he was no longer willing to gift his half share of 2 JM to the 4th to 10th Daughters beyond what the 3rd Will provided and stated:

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 "Deed of family arrangements.

Further correspondence was exchanged but this did not progress any further negotiations on a Deed of Family Arrangement.

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 3rd 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 3rd 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 3rd 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 3rd Will in FC/P 1753/XXXX (“P 1753”). 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.

56     Then on 19 August 2020, the Defendant filed a summons application, FC/SUM 2342/XXXX (“SUM 2342”) for the caveat to cease to have effect. On 26 September 2020, the Plaintiff then filed FC/SUM 2873/XXXX (“SUM 2873”) for leave to file a further affidavit and requested for the Court to invalidate the 3rd Will and to reinstate the 2nd 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 3rd Will and, in any event, the 3rd Will was procured by undue influence of the Defendant and that the Matriarch had executed the 2nd Will to bequeath her half share of 2 JM to the Plaintiff instead.

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 3rd Will in FC/PRG 5965/XXXX.

Events after the grant of probate

58     On 4 January 2021, the Defendant sought, through new solicitors, Lai Mun Onn & Co (“LMO”) 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.

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.

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.

61     On 3 May 2021, the Plaintiff instructed Kalco Law LLC (“KL”) 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.

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.

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.

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 3rd 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.

65     Given the delay in the matter, the Defendant, on 24 August 2021 filed HC/OS 801/XXXX (“OS 801”) for an order for 2 JM to be sold forthwith with vacant possession. At the 1st Pre-Trial Conference (“PTC”) for OS 801, the Plaintiff was directed to file and serve his reply affidavit by 15 September 2021, which he did. At the 2nd PTC, OS 801 was fixed for hearing on 2 November 2021. Both the Plaintiff and the Defendant confirmed at the 3rd PTC for OS 801 on 26 October 2021 that they were ready for the hearing to proceed.

66     However, at the hearing of OS 801 before Justice Pang Khang Chau (“Justice Pang”), 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 (“Suit 1”) on 23 December 2021, and OS 801 was stayed pending the outcome of these proceedings.

Brief Chronology of Suit 1 leading up to the trial

67     At the 1st Probate Case Conference (“PCC”) on 15 February 2022 before Assistant Registrar Miranda Yeo (“AR Yeo”), among other things, parties were directed to identify all the potential beneficiaries pursuant to the 1st, 2nd and 3rd Wills and in accordance with the ISA.

68     The Defendant had been initially represented by Sim Chong LLC for this matter but changed counsel to IRB Law LLP (“IRB”) on 28 February 2022.

69     At the 2nd 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 2nd 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.

70     At the 3rd 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.

71     At the 4th 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 (“AEICs”) 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

72     The Defendant then filed a notice of change of solicitors from IRB to Templars Law LLC (“Templars”) on 2 December 2022.

73     At the 5th 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.

74     At the 6th 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.

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.

76     At the 7th PCC before Assistant Registrar Colin Tan (“AR Tan”) 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.

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.

78     At the 8th 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 (“JPTC”).

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 3rd Son, who had previously not been listed as a witness.

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.

81     On 7 June 2023, the Plaintiff filed the AEIC of the 3rd 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 3rd 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.

82     At the JPTC on 26 June 2023 before me, several key matters were attended to:

(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;

(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 Auto Clean ‘N’ Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] SGCA 27; 2 SLR(R) 427 and Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15; [2010] 3 SLR 110 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;

(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;

(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:

(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 1st day of trial on 14 August 2023; and

(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.

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 (“OHRR”) 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.

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.

85     On 17 July 2023, the Defendant and the Plaintiff file their objections to the categorization of hearsay evidence.

86     On 18 July 2023, the Plaintiff filed a summons for the admission of the 3rd Son as an additional witness in FC/SUM 2268/XXXX (“SUM 2268”). The next day, 19 July 2023, the Plaintiff filed a notice of appointment of solicitor being CNPLaw LLP (“CNPLaw”). Given such new representation, there was no longer a need to consider any application of the Plaintiff for a McKenzie Friend.

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.

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.

89     On 28 July 2023, the Plaintiff, through CNPLaw, filed an OHRR stating that Parties consented to the admission of the 3rd 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 1st day of trial and no submissions were required.

90     On 31 July 2023, the Plaintiff further requested for administrative support of a Mandarin and Hokkien interpreter for the Plaintiff’s witnessed, the 3rd Daughter and the 3rd Son respectively. This was allowed.

91     On 2 August 2023, the Plaintiff filed a Supplemental List of Documents with a supporting affidavit.

92     Then, on 7 August 2023, parties filed the following:

(a)     The Defendant filed 2 volumes of Bundle of Affidavits, the 2nd Supplementary List of Documents, an Opening Statement and a Bundle of Authorities;

(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.

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.

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 3rd Further Supplementary List of Documents, which contained the attendance notes of Mr CJH and a purported English version of previously submitted WhatsApp Chats.

The trial of Suit 1

95     The trial of Suit 1 commenced on 14 August 2023 with the following:

(a)     We began with certain preliminary issues regarding the Defendant’s 3rd 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, “Ah Chek” 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;

(b)     I confirmed the sequence and scheduling of the witnesses and marked the relevant documents;

(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;

(d)     I granted order-in-terms for SUM 2268, allowing the 3rd 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;

(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 1st and 3rd 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;

(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

(g)     The Plaintiff was then called as the 1st witness at around 4 pm and completed his evidence-in-chief before cross-examination commenced.

96     On the 2nd 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 2nd 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.

97     On the 3rd 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 3rd Daughter was heard before coming back to complete the cross-examination and re-examination of the Plaintiff.

98     On the 4th 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 8th 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 8th Daughter that the courtroom could be cold and to bring a bottle of water, the 8th 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 8th Daughter was upset but the Plaintiff’s Counsel intervened to stop the conversation. When the 8th 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 8th 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 8th 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 2nd Daughter.

99     On the 5th 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 3rd Son, before starting with half a day of testimony of the Defendant.

100    On the 6th 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 “Ah Chek” 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.

101    On the 7th 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.

102    On the last and 8th 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.

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.

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.

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.

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.

107    In a half-day decision hearing on 15 January 2024, I delivered my oral grounds of decision and ordered that:

(a)     the 3rd Will executed on 19 June 2017 was pronounced to be invalid;

(b)     the 2nd Will executed on 6 April 2017 was pronounced to be invalid;

(c)     the 1st Will executed on 22 March 2005 was pronounced to be valid;

(d)     Grant of Probate (Order No. FC/PRG 5965/XXXX) issued to the Defendant on 10 December 2020 on the 3rd Will was revoked; and

(e)     the Defendant was entitled to apply for Grant of Probate for the estate of the Matriarch, deceased, on the basis of the 1st Will.

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.

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.

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 & Co.

Issues to be determined

111    Positionally, the Plaintiff took the position that the Matriarch had mental capacity to execute the 2nd Will, and that subsequent to that, in the 2 months thereafter, she lost the requisite mental capacity to execute the 3rd 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 2nd Will, that she had done so in a moment of lucidity.

112    Additionally, the Plaintiff claimed that for the 1st 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 1st Will and/or it was procured by way of undue influence of the Defendant.

113    On the other hand, the Defendant initially took the position that:

(a)     With regard to the 1st 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 1st Will, and there was no fraud or under influence in the procurement of the same;

(b)     In relation to the 2nd Will, the Matriarch did not have the requisite testamentary capacity, did not understand or approve of the contents of the 2nd Will and that there was undue pressure placed by the Defendant in tis execution; and

(c)     For the 3rd Will, the Matriarch had the requisite testamentary capacity, had understanding and approval of the contents of the 3rd Will, and there was no fraud or under influence in the procurement of the same.

114    I had questioned whether the positions on testamentary capacity of the Matriarch for the 2nd and 3rd 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 3rd 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 2nd Will but instead claimed that:

(a)     That the Matriarch did not understand and approve of the contents of the 2nd Will; and

(b)     There was undue influence by the Defendant, even though this was not specifically pleaded in the pleadings;

(c)     In the alternative, the Defendant claimed that the 1st Will was valid, should both the 2nd and 3rd Will be invalidated.

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.

116    Hence, the issues that the Court needs to determine are as follows:

(a)     Whether the 1st Will was valid and effective;

(b)     Whether the 2nd Will was valid and effective, and therefore revoked the 1st Will;

(c)     Whether the 3rd Will was valid and effective, and therefore revoked the 2nd Will and/or 1st Will; and

(d)     Whether neither the 1st, 2nd nor 3rd Will were valid and effective, and therefore the ISA should apply.

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.

The Applicable Law

117    It was agreed between Parties that the applicable law on the validity of Wills was pronounced in the case of Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (“Muriel Chee”) that 3 elements need to be satisfied:

(a)     the testator must have the requisite testamentary capacity to make a will;

(b)     the testator must have knowledge and understanding of the contents of the will and approved of it; and

(c)     the testator must be free from undue influence or the effects of fraud.

Testamentary Capacity

118    With regard to testamentary capacity, pursuant to the elaboration of Muriel Chee in ULV v ULW [2019] 3 SLR 1270 (“ULV v ULW”) at [25], the propounder of a will bears the burden to prove that:

(a)     the testator understands the nature of the act and what its consequences are;

(b)     the testator knows the extent of his property of which he is disposing;

(c)     the testator knows who his beneficiaries are and can appreciate their claims to his property; and

(d)     the testator is free from an abnormal state of mind that might distort feelings or judgments relevant to making the will.

119    As held at [217] to [219] of UWF & Anor v UWH & Anor [2020] SGHCF 22; [2021] 4 SLR 314 (“UWF v UWH”), 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.

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.

121    Pursuant to Muriel Chee 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.

122    It should be noted, that in BUV v BUU & Anor [2019] SGHCF 15; [2020] 3 SLR 1041, 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 Re BKR [2015] SGCA 26; [2015] 4 SLR that mental capacity under section 4(1) of the Mental Capacity Act 2008 (“MCA”) 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 “assistance” as defined under section 3(3) of the MCA: “[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”. In this regard, Justice Aedit Abdullah held at [109] to [110] that:

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.

110     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. 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. 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.

[emphasis added]

Knowledge and Approval of Contents

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.

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.

125    Whether testator approved of or had knowledge of the contents of the will is based on whether the Testator understood:

(a)     what was in the will when he/she signed it; and

(b)     what its effect would be.

Undue influence

126    As held in UWF v UWH 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.

127    The Plaintiff has also cited the UK case of Edwards v Edwards [2007] WTLR 1387, 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.

128    The Defendant further highlighted the UK Case of Wingrove v Wingrove (1885) 11 P D 81 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.

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.

Preliminary issue: Questions of the Matriarch’s Purported Testamentary Wishes

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.

10 & 10A VR & Renovations of 2 & 4 JM

131    The Plaintiff had raised arguments about 10 and 10A VR and the consequential redevelopment of 2 and 4 JM.

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.

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.

134    While neither side has provided evidence to support the sale of 10 & 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 & 2 JM, and a sum of S$160,000 being either a loan or return of monies to the Patriarch’s company.

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 inter vivos gift or trust.

136    This further did not shed light on what the Matriarch, The Matriarch’s testamentary wishes would be.

Issues of Business Management

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.

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.

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.

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 “Towkay Besar” 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.

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.

142    All evidence from 2nd, 3rd and 8th Daughters on the Matriarch’s, The Matriarch’s intentions appear to come from purported recounts from the 3rd 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.

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 2nd Will.

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 4th to 10th 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.

145    Having dealt with that I went chronologically backwards to consider the validity of the most recent 3rd Will executed in June 2017 to the validity of the 1st Will executed in March 2005.

Validity of the 3rd Will

146    With regard to the validity of the 3rd Will, I first considered whether the Matriarch had the requisite testamentary capacity to make this 3rd 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.

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 3rd 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 3rd Will and the further witness accounts of the Matriarch after the execution of the 3rd Will.

Mr CJH

148    The execution of the 3rd Will was only witnessed by Mr CJH and his associate. Mr CJH recounted having explained the 3rd 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 3rd 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.

149    The contents of the 3rd Will were largely similar to the 1st Will with the main difference being the increase in the quantum of the gifts to the 4th to 10th 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.

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 3rd Will was executed, but he definitely recalled telling him after the Matriarch had signed the 3rd 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.

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 3rd 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.

Dr FN

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 “considered invalid in view of the high likelihood of being susceptible to manipulation and influence”.

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.

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 1st Daughter as her elder sister and the Plaintiff as her elder brother. She also claimed that her 6th 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 2nd Son) and one who was informally adopted (i.e. the 3rd Son). The Matriarch also mixed up the order of her children.

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 3rd 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.

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:

(a)     she was unable to understand the information relevant to the decision;

(b)     she was unable to retain information long enough to make the decision; and

(c)     she was unable to weigh the information as part of the process of decision-making.

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.

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 3rd Will to be wholly unfounded.

159    While Dr Ngui did concede that there could be good days for the Matriarch where the 3rd 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 3rd 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.

Dr JBL & Mr DK

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 3rd Will on 19 June 2017. Mr DK, in concert with Dr JBL, only attended to the execution of the Transfer Instrument and not the 3rd 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 “more complicated”. 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 3rd Will, and on the evidence, neither Dr JBL nor Dr NBY were informed of this 3rd Will. Hence, there was no assessment of testamentary capacity when the Matriarch executed the 3rd Will.

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 3rd 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 3rd 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.

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.

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.

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:

(a)     the Plaintiff already has half of 2 JM;

(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

(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.

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.

166    Mr DK though, purportedly went through with the Matriarch the 3 implications of a transfer of her half share of 2 JM, that:

(a)     she would no longer be an owner of the property, which Mr DK believed she understood;

(b)     she would no longer have legal rights to reside there, which Mr DK believed she was not concerned about; and

(c)     her 2 sons would be the owners and could deal with the house without her permissions, which MR DK also believed she understood.

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.

168    Dr JBL noted that the Matriarch had incoherent responses to his questioning due to dementia and that she was “suggestible” based on her responses, which he noted in his notes that “caution needed when understanding”. 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.

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.

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.

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.

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.

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.

174    In any event, Dr JBL also could not speak to the Matriarch’s testamentary capacity to execute the 3rd 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.

175    It can be argued that since this assessment by Dr JBL was done 6 days after the execution of the 3rd Will and therefore it should apply to purportedly prove the Matriarch, had testamentary capacity when she executed the 3rd Will. However, given the Matriarch’s condition, there was insufficient evidence provided that she was in a moment of lucidity when she executed the 3rd Will.

Dr NBY & Ms LKK

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.

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.

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.

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 3rd 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.

Corroboration by other persons

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.

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.

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 8th Daughter to bring the Matriarch to see another set of lawyers, Tan Kim Seng & Partners, where the Matriarch did not appear to be able to recall what documents she had executed and placed her thumbprint on.

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 8th 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.

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 3rd 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 3rd Will.

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 3rd Will, and consequently could not understand and approve of the contents of the Will.

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.

Validity of the 2nd Will

187    Moving on to the circumstances surrounding the execution of the 2nd Will, while the Plaintiff is correct that pursuant to Rajaratnam Kumar (alias Rajaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit [2010] SGHC 164 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.

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 2nd 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 3rd Will, she had lacked the requisite mental capacity.

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.

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 2nd Will.

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.

192    In UWF and another v UWH and another [2021] 4 SLR 314 at [213] and [214], the Court held that “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.”

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 2nd 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.

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:

(a)     even though the Matriarch was 87 years old, it was not asked if any mental capacity assessment has been conducted recently;

(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;

(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;

(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 2nd Will, as she thought it would be helpful for The Matriarch;

(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;

(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 2nd Will;

(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

(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.

195    The Plaintiff claimed the Matriarch had the ability to recall key facts about executing the 2nd 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 2nd 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 “key facts” of the 2nd 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.

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 2nd 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.

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 “Ah Chek” 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 “Ah Chek” was referring to the Plaintiff or whether it could have referred to someone else like the Patriarch. Based on the evidence of the 3rd Daughter, the reference to “Ah Chek” in this recording was unlikely to be her late husband, the Patriarch, as he was never referred to as “Ah Chek”.

198    The 2nd 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 2nd Will were significantly different from the 1st Will and with a more complex mechanism for the Plaintiff’s 1st 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 1st Son was to the Matriarch. The Matriarch was unable to volunteer such information independently during that session with Estate Planner 1. The 2nd Will was also dissimilar to the 2 draft wills proposed to the Matriarch by the 8th Daughter, which the Matriarch had rejected.

199    The 8th Daughter, on the witness stand, questioned as to why would the Matriarch give such a significant bequest to the Plaintiff’s 1st Son, who was only 1 out of 20 grandchildren that the Matriarch had and whom she opined was not the Matriarch’s favourite grandchild.

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 2nd Will, either by way of a continuing mental capacity or there being a period of lucidity.

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 2nd 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.

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 2nd 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 2nd Will without such assessment and the terms were very favourable to him and his 1st son, and that it had to be explained by the Defendant to Estate Planner 1 who the Plaintiff’s 1st Son was for why he was being named in this 2nd 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.

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.

204    Having determined the 3rd and 2nd Will to be invalid, I turned next to the validity of the 1st Will.

Validity of the 1st Will

The Matriarch’s Testamentary Capacity & Knowledge & Approval of the contents of the 1st Will

205    The 1st Will was executed in 2005, 12 years before the 2nd Will, and long before the Matriarch had began suffering from dementia.

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 1st Will or whether there was any undue influence applied on the Matriarch by the Defendant.

207    Pursuant to Muriel Chee 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.

208    As highlighted in [46] of Muriel Chee, 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 1st Will. It is without a doubt that the Defendant stood to gain substantially from the 1st 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 4th to 10th Daughters.

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 1st 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 1st Will.

210    There has been evidence that Mr CJH had read out the contents of the 1st 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 1st 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.

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 “residue of the estate” 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.

212    While the Matriarch was illiterate, she had been described by her children as being capable and smart:

(a)     The 3rd Daughter described her as having an “independent mind” and that she was “business-minded”;

(b)     The 2nd Daughter described her as “smart” and “sharp”, had a “strong sense of survival”, a “strong sense of self-independence”, a “clear independent mind”, “strong will and amazing spirit” and that it was “hard to persuade her after she had made up her mind”;

(c)     The 8th 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 “play” her 2 sons for her own financial security.

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 1st Will.

214    Furthermore, evidence was provided by the 8th 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 8th 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.

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.

216    The evidence of 3rd Son further indicated that the Matriarch had told him that she knew she could change her 1st Will if she wanted to, and when it was broached with her on 2 occasions to take action to change the 1st Will, she did not take it up to execute a new Will.

217    Such conduct after the execution after the 1st Will further corroborate that she had knowledge of and approved of the contents of the 1st Will.

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 1st 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.

Purported Undue Influence

219    Having dealt with the 1st 2 limbs of the test in Muriel Chee, we move on to the 3rd limb, which the Plaintiff has the burden of proving, i.e. purported undue influence.

220    While Mr CJH was under the impression that the Matriarch was executing the 1st 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 “threat of physical confinement in addition to the mental distress and fear of facing the Defendant’s wrath”.

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 3rd Will or the Transfer Instrument, where the Matriarch made threatened to commit suicide after the execution of, or the 2nd Will, where the Matriarch raised concerns to the Defendant, there was no evidence that the Matriarch raised any concern after the execution of the 1st Will.

222    The Plaintiff argued that the Matriarch was in a weakened physical and mental condition when she made her 1st 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.

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.

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 3rd Son. However, as mentioned earlier, the credibility of the 3rd Son had been called into serious question.

225    The 3rd 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 1st Will. The 3rd 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 3rd Son suddenly recalled the purported 2nd 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 3rd 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.

226    All of the siblings who took the stand recounted that the 3rd Son had told them that he witnessed such a conversation, but 3rd Son emphatically claimed he did not tell any of his siblings such things.

227    The 3rd Son did however recount that he knew that the Matriarch was informed that if she did not like the 1st 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.

228    Even if the 1st 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.

229    The Plaintiff’s argument that “it is quite possible that the Defendant had sprung the 1st 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” and that she “could not call anyone for assistance or delay the execution of the 1st Will” was weak, and unsupported. There was also no corroboration of the Matriarch, having complained about this after the fact.

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 1st 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.

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.

232    The further fact that the Matriarch had the opportunity to revise the 1st Will, on 2 occasions based on the testimony of the 8th 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 1st Will was not procured by coercion.

233    Any allegations that the Defendant treated the Matriarch better after the 1st Will was executed and that monthly allowances were more regular afterwards, are inconsequential to any allegations of coercion.

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 1st Will, and that there was sufficient evidence that the Matriarch had knowledge of and approved of the contents of the 1st Will and as a free agent decided to make the bequests in the 1st Will.

235    In the circumstances, I found the 1st Will to be valid and effective.

Costs

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.

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.

238    Rule 855 of the FJR provides that:

Restriction of discretion to order costs

855.—(1)    Despite anything in this Division or under any written law, 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 in a probate action who has given notice with his defence to the party setting up the will that he —

(a)     merely insists upon the will being proved in solemn form of law; and

(b)     only intends to cross-examine the witnesses produced in support of the will.

(2)    Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, 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.

(3)    The Court may otherwise order, under paragraph (2), only on the ground that —

(a)    the trustee, personal representative or mortgagee has acted unreasonably; or

(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.

[emphasis added]

239    The Plaintiff further relied on G Raman, Probate and Administration law in Singapore and Malaysia, 4th Edition (2018), Lexis Nexis at [10.51] to [10.53] that:

E. Costs

[10.51]    Ordinarily, costs should follow the event. However, in probate actions, there is a permutation to this rule.

[10.52]    Costs in probate actions are based strictly on the justification or reasonableness of bringing such actions.

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 [Tristan and Coote’s (30th ed, 2006), P 747].

[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 [re Angulia deceased [1939] MLJ 100; 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.

240    Additionally, the Plaintiff raised the High Court case of WHR & Anor v WHT & Ors [2023] SGHCF 32 (“WHR v WHT”), 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:

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.

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.

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 WHR v WHT 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 2nd Will was valid and the 1st and 3rd Wills were invalid and called 8 witnesses in support of his case and to defend against the Defendant’s counterclaim.

242    Having delivered the decision that Rule 855 was inapplicable in this case, I sought parties to submit on the quantum of costs.

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 (“Appendix G”), 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 3rd 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.

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 2nd and 3rd Will. Additionally, the Plaintiff sought costs for and disbursements for having to initiate proceedings against the Defendant’s reliance on the 3rd 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.

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:

(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;

(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;

(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;

(d)     That was an aggregate of S$165,000;

(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;

(f)     Additionally, the Defendant was only successful in his claim that the 1st Will was valid and the 2nd Will was invalid, and was unsuccessful in proving that the 3rd Will was valid. In the circumstances, the Defendant should only be awarded 2/3 of such costs, i.e. S$73,333.33;

(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;

(h)     For disbursements of witnesses as Dr JBL, Dr NBY, Mr DK and Ms LKK were called for the purposed of propounding the 3rd Will, these disbursements were not allowed. For Mr CJH, given that he was called to speak to the validity of the 1st and 3rd Will, half of his disbursements were allowed, i.e. S$5,535/2 = S$2,767.50; and

(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.

Conclusion

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 3rd Will, the Plaintiff failed more significantly to discharge his burden in proving the 2nd Will and to show that the 1st 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.

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 2nd 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.

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.

"},{"tags":["Children and Young Persons Act – Care and Protection Orders – Youth progressing well and mother enjoying strong social and community support – Child Protector seeking early discharge of Care and Protection Order"],"date":"2024-04-18","court":"Youth Court","case-number":"Care and Protection Order No 183 of 2021","title":"Child Protector v GIH","citation":"[2024] SGYC 1","url":"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%2F31397-SSP.xml","counsel":["Rahmatunnisa binte Abdul Majeed (the Home) for the Child Protector","The youth in person","The parents of the youth in person","Mr Josephus Tan and Mr Syahrin Mohd Salleh as advisers."],"timestamp":"2024-04-25T16:00:00Z[GMT]","coram":"Patrick Tay Wei Sheng","html":"Child Protector v GIH

Child Protector v GIH
[2024] SGYC 1

Case Number:Care and Protection Order No 183 of 2021
Decision Date:18 April 2024
Tribunal/Court:Youth Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): Rahmatunnisa binte Abdul Majeed (the Home) for the Child Protector; The youth in person; The parents of the youth in person; Mr Josephus Tan and Mr Syahrin Mohd Salleh as advisers.
Parties: Child Protector — GIH

Children and Young Persons Act – Care and Protection Orders – Youth progressing well and mother enjoying strong social and community support – Child Protector seeking early discharge of Care and Protection Order

18 April 2024

District Judge Patrick Tay Wei Sheng:

1       A youth had been neglected by his parents since childhood and had been committed to a children’s home (the “Home”) until adulthood to protect him from delinquency. Yet so extraordinary was his progress in the Home that the Child Protector applied for his early discharge from it nearly two years before the end of that placement. I granted the application and now record the reasons for my decision.

2       The youth was 19 years of age. Since 2011, he had been placed on care and protection orders under the Children and Young Persons Act 1993 (2020 Rev Ed) (the “CYPA”) because of his neglect by his parents. The first of these orders had been made when he had been just six years of age. Thereunder, he had initially been placed in the care of a foster family.

3       In 2021, this foster placement was terminated when the police began investigations into the youth for his involvement in a criminal offence. While those investigations continued, the youth was committed to the Home, which was a place of safety, until he turned 21 years of age, pursuant to a further care and protection order. At the conclusion of the investigations into the criminal offence, the youth was issued a conditional written warning for 12 months.

4       The power of the Youth Court to discharge a care and protection order before its expiry is found in s 54(17) of the CYPA. It provides that the Youth Court may, on the application of the Director-General of Social Welfare or a child protector, discharge the care and protection order if it is “in the best interests of the person in respect of whom the order was made”.

5       The family circumstances of the youth were challenging. His father had been repeatedly incarcerated for drug-related offences and had since 2021 been serving eight years’ imprisonment for a sexual offence. His mother had been repeatedly incarcerated for drug-related offences and was on long-term anti-psychotic medication for Drug-Induced Psychosis and Opioid Dependence. His elder brother had recently served 18 months in the Reformative Training Centre for drug-related offences. And his two younger siblings were, like him, the subject of care and protection orders because of their neglect by their parents.

6       Yet the committal of the youth to the Home galvanised his mother and him to improve their lot. His mother sought help from the Institute of Mental Health for her mental health conditions. She shared her challenges with the professionals there and acknowledged that her mental health conditions had precipitated her neglect of her children. She followed the treatment regime on which she was placed, which treatment stabilised her condition to the extent that the frequency of her treatment was reduced to just thrice a year. And she availed herself of the support of her community, which included her relatives and social workers, to buttress her capacity to support the youth.

7       More importantly, the youth had progressed remarkably after his entry into the Home. He had enrolled in a vocational course to gain work experience while earning an income with which he could support his family. As part of that course, he was attached to the culinary division of a hotel. His manager at the hotel reported that he performed well in his work, showed strong leadership qualities, and was well on his way to achieving his vocational qualification. Indeed, within the culinary division of the hotel, the team on which the youth had been placed was “selected to prepare menu and food during the Grand Prix event that was held in Singapore and during a Farewell event at the Istana for former Singapore President, Mdm Halimah Yacob”.[note: 1] The youth expressed that he was “proud of himself and is thankful for the opportunities opened to him”, “aims to pursue his studies in the Polytechnic in Culinary Arts”, and “aspires to be a professional Chef at international level”. And the Home invited the youth to apply for its in-house scholarship were he to pursue those studies.[note: 2]

8       With the guidance of a case worker from the Ministry of Social and Family Development (the “MSF”), the youth learnt to manage his finances. From his attachment at the hotel, he received $1,900 each month. From these monies, he purchased groceries and other necessities for his family and gave his mother a further $100 each month. He even presented monetary gifts to the foster family that had taken him in during his younger years.

9       Even as the youth desired to return to independent living under the care of his mother, he remained cognisant of the challenges presented by their circumstances. To prepare for such independent living, the youth made efforts to overcome those challenges. For his mother, he worked on identifying the triggers that escalated her mental health conditions and on managing her in the event of such an escalation. For himself, he sought treatment with the National Addictions Management Service (the “NAMS”) to address the delinquent tendencies that had necessitated his committal to the Home. He completed this treatment and the NAMS assessed his risk of re-offending to be “low”.

10     The Home put together a comprehensive discharge plan for the youth. Access sessions for the youth to meet his family had been arranged on a weekly basis since late-2021. These sessions went smoothly, and overnight access sessions were arranged for the youth to spend his weekends with his family since late-2022. To secure the independent living of the youth going forward, the Home devised, and the youth agreed to, the following arrangements:

a)    [The youth] to complete his [vocational course] till Oct 2025 and to enlist for National Service after that.

b)    [The youth] to be attached with [the Home’s] Transition Support Officer (TSO) to support his reintegration transition. This will be for a period of 6 months after discharge.

c)    [The youth] can seek support from NAMS Counselor on his [addiction] issues if he needs support in the future …

d)    [The youth] can apply for [the Home’s] Scholarship award in 2024. The [Home’s] Scholarship is awarded to former residents who plan to further their studies in post-secondary education. The [Home’s] scholarship is worth up to $2500 per annum and it will be disbursed monthly to the former resident. The money received can be used for their school needs including food, transport, and other necessities.

e)    [The mother of the youth] will continue to work closely with FSC Social Worker and IMH.

11     Ultimately, the newfound caregiving ability of the mother and maturity of the youth allayed the concerns that had necessitated his committal to the Home. The skills that the youth had acquired in the Home and from his vocational course equipped him to support himself and his family. The discharge plan arranged by the Home and embraced by the youth put him in good stead him to live independently as a productive member of society. It was thus in the best interests of the youth to discharge the care and protection order that had committed him to the Home and return him to the care of his mother. On the advice of Mr Josephus Tan and Mr Syahrin Mohd Salleh, the advisers whom with me comprised the Youth Court in these proceedings pursuant to s 38 of the CYPA, I so ordered.

12     Much of the work in the child protection ecosystem is unsung. This case testifies to the good that it does. Mired in neglect and delinquency the youth had been. Working together, the MSF, the Child Protective Service, the NAMS, and the Home rescued him.

[note: 1]Progress Report 9/2/24 at paras 7.4.2 and 7.4.3

[note: 2]Progress Report 9/2/24 at para 10.1(d)

"},{"tags":["Family law – Maintenance – Variation of Maintenance Order – Whether remarriage terminates periodic maintenance order for a fixed period","Family law – Consent Orders – Whether maintenance order is a periodic order or for a lump sum amount payable by instalments"],"date":"2024-04-16","court":"Family Court","case-number":"Divorce Suit No. 4124 of 2019, (Summons No. 3215 of 2023)","title":"WWC v WWD","citation":"[2024] SGFC 17","url":"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%2F31395-SSP.xml","counsel":["Ms Chang Man Phing and Ms Heidi Ngo (WongPartnership LLP) for the Plaintiff","Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant."],"timestamp":"2024-04-25T16:00:00Z[GMT]","coram":"Kevin Ho","html":"WWC v WWD

WWC v WWD
[2024] SGFC 17

Case Number:Divorce Suit No. 4124 of 2019, (Summons No. 3215 of 2023)
Decision Date:16 April 2024
Tribunal/Court:Family Court
Coram: Kevin Ho
Counsel Name(s): Ms Chang Man Phing and Ms Heidi Ngo (WongPartnership LLP) for the Plaintiff; Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant.
Parties: WWC — WWD

Family law – Maintenance – Variation of Maintenance Order – Whether remarriage terminates periodic maintenance order for a fixed period

Family law – Consent Orders – Whether maintenance order is a periodic order or for a lump sum amount payable by instalments

16 April 2024

District Judge Kevin Ho:

Introduction

1       In August 2019, the Plaintiff and the Defendant reached what appeared to be an amicable decision to end their almost three-decade long marriage.

2       The Plaintiff applied for divorce in Singapore as he had been working here since 1999. At the time of the divorce application, the parties were already in their early 50s.[note: 1] The divorce application itself was filed as a simplified divorce application on the ground that the parties have been separated for 3 years and the Defendant consented to the divorce.

3       An Interim Judgment for divorce (“IJ”) was eventually granted on 11 September 2019 and the orders relating to the ancillary matters of divorce contained in the IJ were recorded “by consent”.[note: 2] These consent orders were based on the terms of a draft IJ which parties had carefully negotiated; multiple drafts of the proposed IJ were exchanged between the couple[note: 3] before the final version was duly executed by the Plaintiff and the Defendant,[note: 4] and thereafter submitted to the court.

4       Following the finalisation of the divorce, the Defendant continued to reside in the United States of America, where she had been since 2015 and where she continues to reside today.[note: 5] The Plaintiff, on his part, complied with the terms of the IJ and paid maintenance to the Defendant. He also funded her health insurance premiums.[note: 6]

5       Unfortunately, the terms of the parties’ divorce settlement are now being litigated before this Court, 5 years after their divorce.

6       Specifically, the Plaintiff filed FC/SUM 3215/2023 (“SUM 3215”) requesting that the Court rescind (or vary) paragraph 3(d) of the IJ.[note: 7] This paragraph sets out the Plaintiff’s maintenance obligations to the Defendant, the specific wording of which is as follows:

d.    The Plaintiff shall pay to the Defendant a sum of US$10,000 per month being maintenance for the Defendant. The payments shall be made with effect from 1 August 2019 and thereafter on the 1st day of each subsequent month for fifteen (15) years until 1 August 2034.

The Plaintiff shall provide funding for the Defendant’s international health insurance premiums from 1 August 2019 for fifteen (15) years until 1 August 2034.

After 1 August 2034, the Plaintiff is at liberty to extend maintenance to the Defendant at his sole discretion.

(collectively, the “Maintenance Order”)

7       The Plaintiff’s reason for rescinding the Maintenance Order is that the Defendant has since remarried. He says he was made aware of the Defendant’s new marital status after he was formally introduced to the Defendant’s new spouse at their adult son’s (ie. the Plaintiff and the Defendant’s child) wedding in August 2022.[note: 8] The evidence, in my view, suggests that he found out earlier.

8       Be that as it may, the Plaintiff (who has himself remarried) believes that given the Defendant’s remarriage, he should no longer need to pay her maintenance,[note: 9] or that his maintenance obligations should be reduced.[note: 10]

9       The questions before this Court – as put forward by the Plaintiff – appear, at first glance, straightforward:

(a)     Does the Defendant’s remarriage terminate his obligation to pay her maintenance?

(b)     Alternatively, can the Plaintiff rely on the Defendant’s remarriage and her present circumstances to vary (or reduce) his payment obligations ?

10     The answer to these seemingly straightforward questions, however, require some discussion given the legal arguments raised, and positions taken, by both parties.

Effect of Remarriage: Section 117, Women’s Charter 1961

11     The answer to the first question as regards the legal effect of the Defendant’s remarriage lies in the application of s 117 of the Women’s Charter 1961 (“WC”).[note: 11] This represents the main plank of Plaintiff’s case.

12     Section 117 provides as follows:

Duration of orders for maintenance

117.    Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —

(a)    if the maintenance was unsecured —

(i)    on the death of either spouse or former spouse;

(ii)   in the case of maintenance payable to a former wife — upon her remarriage; or

(iii)   in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or

(b)    if the maintenance was secured —

(i)    in the case of maintenance payable to a wife — on her death;

(ii)   in the case of maintenance payable to a former wife — on her death or upon her remarriage;

(iii)   in the case of maintenance payable to an incapacitated husband — on his death; or

(iv)   in the case of maintenance payable to an incapacitated former husband — on his death or upon his remarriage

13     Of particular relevance in the present case is s 117(a)(ii) which states that maintenance payable to a former wife expires “upon her remarriage”.

14     On a plain reading of this statutory provision, the Maintenance Order in the present case would have expired when the Defendant married her current husband on 31 January 2020.[note: 12] This would have occurred automatically as the extinguishment of the Plaintiff’s maintenance obligation was by operation of statutory law. There is no need for the Plaintiff to file a formal application to rescind the Maintenance Order.

15     This approach coheres with the statutory framework set out in ss 117 and 118 of the WC.

16     Section 117 provides that a maintenance order expires upon the occurrence of the various statutory preconditions (eg. death or remarriage), “[e]xcept where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded…” (“Exception Preamble”). This dovetails with s 118 which confers upon the court the power to vary or rescind any “subsisting order” for maintenance.

17     An application for rescission pursuant to s 118 should be made before the occurrence of the preconditions set out in s 117. This is because once a maintenance order has expired by operation of s 117, there would no longer be a “subsisting order” in respect of which the court can vary or rescind.

18     Given that a plain reading of s 117 would mean that the Plaintiff is no longer obliged to pay the Defendant any maintenance from the time of the latter’s remarriage, counsel for the Defendant sought to persuade the Court to adopt a slightly different reading of the statute.

19     In the course of oral arguments, the Defendant’s counsel suggested that the phrase “where an order for maintenance is expressed to be for any shorter period” in the Exception Preamble should be read to mean that if a maintenance order provides for a specified period of time, then the maintenance order would continue to subsist for the entirety of the specified period regardless of the ex-wife’s remarriage.

20     According to counsel, such a reading can inferred from the decision of the High Court in BNS v BNT [2017] 4 SLR 213 (“BNS”). In BNS (which involved a first instance ancillary matters hearing), the High Court found that the wife in that case to be in a settled relationship with a new partner and in making a maintenance order, the High Court included a proviso that the said order would lapse upon remarriage should the wife remarry before the end of two years. In so doing, Valerie Thean JC (as her Honour then was) made the following observations (at [55] – [56]):

55    I deal with two further issues raised in the Husband’s submissions. The first issue is that the Wife is in a settled relationship and thus there should be no lump sum order. I agree. In addition, s 117 of the WC provides that maintenance generally expires upon remarriage:

Duration of orders for maintenance

117.   Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —

(a)    if the maintenance was unsecured —

(i)    on the death of either spouse or former spouse;

(ii)   in the case of maintenance payable to a former wife — upon her remarriage; or

(iii)   in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or

(b)    if the maintenance was secured —

…

56    To obviate any argument that the present order for maintenance for two years is an order “expressed to be of any shorter period” within the meaning of that provision, I add a caveat to my order that it will lapse upon the Wife’s remarriage should she remarry before the end of the two years.

21     As I understand it, counsel’s argument is that Thean JC must have decided to add the caveat to the maintenance order in BNS because had her Honour not done so, the two-year maintenance order would have superseded the operation of s 117 and continue to give the wife a right to maintenance even if she had remarried before the end of the two years.

22     The Plaintiff’s counsel disagreed with the inference which the Defendant’s counsel sought to draw from what had been ordered in BNS as this was not stated explicitly in the judgment. The Plaintiff’s counsel submitted that Thean JC was simply being clear when making her Honour’s order and this was apparent from the judgment where her Honour had explained that the proviso was added so as “to obviate any argument”.

23     Having considered the nature of the case in BNS and the context of High Court’s decision, I agree with the Plaintiff’s counsel that BNS does not stand for the proposition that absent a “caveat” (or “proviso”), a periodic maintenance order for a fixed term should be read as an order for a “shorter period” within the meaning of s 117.

24     It is apparent from a plain reading of the statutory provision that the Exception Preamble provides for only 2 distinct scenarios when a maintenance order would not be terminated by operation of s 117(a), ie.:

(a)     where the maintenance specifies a “shorter” period, ie. where the end date of the order occurs before the death or remarriage of the recipient spouse; and

(b)     where the maintenance has been rescinded by the court before the death or remarriage of the recipient spouse.

The reason underlying both scenarios is clear – in both situations, the obligation on the paying spouse would already have ended before the recipient spouse had died or remarried, and it would be unnecessary to provide for the expiry of the order in question.

25     In effect, the Defendant’s argument seeks to replace the phrase “shorter” in the Exception Preamble with the phrase “specified”, in that so long a maintenance order specifies that it would be in force for a certain period, the automatic expiry date set out in s 117(a) would no longer apply.

26     With respect, I am unable to agree with the Defendant’s reading of the provision as it goes against the express language used in s 117(a). The well-established principles of statutory interpretation (as explained by the Court of Appeal in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850) requires the court to have regard to the text of the statutory provision, its ordinary meaning, and the context of the statute.[note: 13]

27     I find that adopting the Defendant’s reading of s 117(a)(ii) would lead to anomalous results, considering the context of the provision. This is especially so when considered against the other scenarios contemplated in s 117(a).

28     For instance, adopting the Defendant’s interpretation for s 117(a)(ii) suggests that s 117(a)(i) should be interpreted in a similar fashion, ie. a maintenance order with a specified period would, under the Defendant’s approach, also continue to be in force despite a recipient ex-spouse’s death. That would surely be an absurd outcome – to whom is the maintenance payor expected to continue paying maintenance to, after the ex-spouse’s death? Can the deceased ex-spouse’s estate then make monthly maintenance claims for the entire period? Neither of these outcomes is supported by the statute.

29     Moreover, the Defendant’s reading effectively means that a person can exclude the operation of the statute by specifying a time-period (however long or short) to a maintenance order. In the absence of clear statutory language permitting the parties to do so, I decline to adopt such a reading.

30     For completeness, I should add that the Defendant’s reading does not accord with the legislative policy behind s 117(a)(ii) which simply recognises that a former wife’s right to maintenance should cease upon remarriage.

31     By way legislative history, the idea that remarriage automatically terminates a person’s obligation to pay maintenance to his former wife was not always part of the WC. It was added as part of the legislative amendments made to the WC in 1996.[note: 14] Before the relevant amendments were made, the only scenario which terminates a husband’s obligation to pay maintenance is upon the former’s wife’s death.[note: 15]

32     The insertion of the additional termination event for remarriage came as a result of the Report of the Select Committee on the Women’s Charter (Amendment Bill) (Bill No. 5/96) which was presented to Parliament on 15 August 1996. The Select Committee had supported the suggestion raised by one representor for the insertion of such a termination event; in his speech to move the Bill for its third reading, the then Minister for Community Development explained that such an addition provision was “logical and fair”.[note: 16] There was no suggestion that there should be any exception to this provision or that spouses can privately exclude its operation.

33     Accordingly, I find that s 117 would apply, in the present case, to any maintenance order which was in existence as at the time of the Defendant’s remarriage to her current spouse.

Interpretation of the Interim Judgment

34     Notwithstanding the applicability of s 117 (as discussed above), that is not necessarily the end of the matter as the Defendant has a second string to her bow.

35     Counsel for the Defendant argued that the Maintenance Order should be read (or interpreted) as an order for “lump sum” maintenance payable by the Plaintiff. Indeed, this was the gist of the Defendant’s case.

36     The Defendant submitted that if the Maintenance Order was to be read as a lump sum maintenance order (instead of an order for periodic maintenance), the Defendant’s remarriage would not have had any legal effect on the Plaintiff’s obligation to pay her the monthly sum of US$10,000 as all he had been doing (and must continue to do) is paying, by equal monthly instalments, a fixed maintenance sum of US$1,800,000 over a period of 15 years.[note: 17]

37     The Plaintiff strenuously challenges this argument on the basis that such a reading of the Maintenance Order was not supported by the evidence adduced by the parties. He also raised a related legal challenge that even if this Court finds that it should be understood as an order for lump sum maintenance should still be considered as a subsisting order which could be varied or rescinded by the court. I will address the latter argument later in this judgment.

38     In my view, the parties’ arguments raise the following two sub-issues:

(a)     How should a court interpret the Maintenance Order (which is part of the by-consent IJ entered into by the parties), including what principles and/or canons of interpretation the Court can rely on in the exercise of interpretation?

(b)     Applying those principles, whether the Maintenance Order, in the present case, should be interpreted as being an order for lump-sum maintenance?

39     I will address both sub-issues in turn.

40     As regards sub-issue (a) above, after hearing counsel’s oral arguments, I directed both counsel to provide further written submissions to provide their views (and the relevant research) as to the approach which should be taken by the Court. Both counsel duly filed their respective supplemental submissions, and I had considered these submissions in reaching my decision.

41     At the outset, I recognise that the Maintenance Order was clearly court orders and not merely an agreement between the parties. They were made by the Family Court as part of the parties’ divorce proceedings in 2019. The difference, however, is that the Maintenance Order was not made after contested proceedings; it was part of a by-consent IJ agreed between the parties through private negotiations without the direct involvement of the court. For ease of reference, I shall refer to such consent orders as “Matrimonial Consent Order(s)”.

42     In the case of court orders made after contested proceedings, the interpretation of such orders is often straightforward. In BRZ v BSA [2020] SGHCF 17 (“BRZ”), the High Court made the following observations (at [21]) in relation to the interpretation of court orders:

The law on interpretation of court orders

21    As much of the dispute turns on the proper interpretation of the AM Order, I begin by setting out the principles that apply to the interpretation of court orders. The starting point should be the language of the order. An interpretation would necessarily consider the natural and ordinary meaning of the words and the manner in which they are used. Regard must also be had to the whole of the order. As far as possible, each part of the court order should be read consistently with every other part and with the intention of the court which granted the order: Hoban Steven Maurice Dixon and another v Scanlon Graeme John and others [2007] 2 SLR(R) 770 at [41]. It is common sense that the court, in making an order, would not have wished to have different parts of the order produce different results. Beyond that, the interpretation of the court order should strive for consistency with the prevailing principles. As the High Court considered in Sujatha v Prahbakaran Nair [1988] 1 SLR(R) 631 (“Sujatha”) at [16]:

… [W]here an order of court is capable of being construed to have effect in accordance with or contrary to established principles of law or practice, the proper approach, in the absence of manifest intention, is not to attribute to the judge an intention or a desire to act contrary to such principles or practice but rather in conformity with them. …

[Emphasis added in underline]

43     I would add that the interpretation of orders made by a judge after contested proceedings would usually not pose a significant challenge to the parties given the availability of other means to understand and ascertain the judge’s intention when making the relevant order – for eg. notes of evidence and written grounds of decision may be available to the parties. Requests can also be made to the court for the clarification of its judgment.

44     In contrast, Matrimonial Consent Orders are different in that such orders are typically based on out-of-court agreements reached by the parties themselves without the court’s direct involvement in the preparing/drafting of such Orders. Parties generally have freedom to choose the terms/language used in the Matrimonial Consent Orders.

45     Nevertheless, the Plaintiff’s counsel submitted that the principles relating to the interpretation of commercial contracts should not be adopted in the present case, given the unique nature of orders made in family proceedings.[note: 18]

46     As stated above, I agree that the nature of a Matrimonial Consent Order is different from an agreement to settle legal proceedings in the civil and/or commercial context. A Matrimonial Consent Order is, for example, different from other type of court orders (such as Tomlin order[note: 19]) which record the litigants’ settlement agreements in civil proceedings. Unlike such orders, the legal effect of a Matrimonial Consent Order is derived from being an order of court,[note: 20] and not merely because of a commercial contract the parties had entered into.

47     However, recognising the legal nature of a Matrimonial Consent Order (which may affect the way in which its terms are enforced or varied) does not necessarily shed light on how to interpret (or read) its terms, especially where these terms were not the result of adjudication by the court.

48     In my view, the principles of contractual interpretation may be relevant when a court is tasked with interpreting specific clauses set out in a Matrimonial Consent Order which were principally prepared by the parties. This would be the case where the clauses were the product of extensive negotiations between the parties prior to the making of the Matrimonial Consent Order, or, in some cases, the terms of a Matrimonial Consent Order reflect an earlier written contract or document (such as a deed of separation) where the terms of the parties’ intended divorce were spelt out in detail.

49     As noted by the High Court in Seah Kim Seng v Yick Sui Ping [2015] 4 SLR 731 (“Seah Kim Seng”) at [29]:

…the fact that a consent order was recorded means that the intention of the respective parties may be relevant in a broad sense; such intention has to be considered in the light of the compromise required in reaching an agreement and expressed in the consent order. What matters ultimately is the common understanding between the parties. The court cannot ultimately substitute its own agreement in place of what the parties came to…

[Emphasis added in underline]

50     I recognise that in Seah Kim Seng, the High Court was considering an application to vary a consent order due to its alleged unworkability. Nevertheless, the High Court’s reference to the parties’ intentions suggests that in understanding a Matrimonial Consent Order, the surrounding circumstances and the parties’ understanding at the time of its making remain relevant.[note: 21]

51     To be clear, my observations above pertain only to the use of relevant legal principles to aid in the construction and/or interpretation of a Matrimonial Consent Order drafted by the parties. The purpose of this exercise is to ascertain what the parties had understood or intended when they agreed to include a term in the Matrimonial Consent Order, especially where some of its terms are ambiguous.

52     The interpretation of a Matrimonial Consent Order is distinct from its nature as a court order, and my observations here should not be taken as implying that other principles of contract law should be automatically “imported” into the matrimonial context. One unique nature of matrimonial proceedings is that the WC statutorily allows the court to vary or rescind maintenance orders (including those reached through parties’ agreement),[note: 22] and the principles applicable to such variation applications are well-established.

53     Notwithstanding the discussion above, on the facts of the present case, I find that the outcome of my decision would not have been significantly different regardless of whether I had used principles relating to contractual interpretation, or if I had interpreted the IJ as if it was a court order (made after adjudication). My reasons are as follow:

(a)     To begin with, the exercise of contractual interpretation and the interpretation of a Court Order both place primacy on the text of the document in question.

(b)     As the High Court noted in BRZ, the starting point for interpreting a court order should be the “language of the order”.[note: 23] Similarly, in the interpretation of contracts, the Court of Appeal had, on various occasions, emphasised the importance of considering the text of the document in question.[note: 24]

(c)     In the present case, the text of the Maintenance Order is plain in that it states unequivocally that “[t]he Plaintiff shall pay the Defendant a sum of US$10,000 per month being maintenance for the Defendant”, and that is to be paid on the “1st day of each subsequent month for fifteen years until 1 August 2023”.

(d)     The reference to a sum of US$10,000 payable “per month” and payable on the “1st day” of each month puts in beyond peradventure that it was a periodic maintenance order.

(e)     The same interpretative exercise similarly applies to the part of the Maintenance Order relating to the Plaintiff’s payment of the Defendant’s health insurance premiums (“Insurance Premium Clause”).

(f)     Looking at the Maintenance Order as a whole, reading the same in its plain language and considering how parties had included the Insurance Premium Clause in the same clause as that relating to the payment of monthly maintenance, I find that the Insurance Premium Clause was also part of the Plaintiff’s monthly maintenance payment obligations.

(g)     Indeed, the parties had situated this Clause immediately before the proviso giving the Plaintiff the discretion to “extend maintenance” – this reinforces my finding that the parties intended for the payment of insurance premiums to be a facet of the Plaintiff’s maintenance obligations.

54     In my view, against the backdrop of the plain language used in the Maintenance Order, to accept the Defendant’s interpretation of the same would be to ignore (or even contradict) the actual text of the Order. That would not be permissible regardless of which principles of interpretation are applied.

55     The Defendant’s suggested understanding of the Maintenance Order requires the Court to read in additional words – for eg. “lump sum” and “instalments” – so that her reading of the Order as an order for lump sum maintenance would make sense. It would also require the Court to ignore words used – ie. “monthly payments” – and replace them with a fixed sum of US$1.8million; what was clearly described as monthly maintenance payments must be also read as monthly “instalment” repayments of a fixed amount.

56     Moreover, the fact that the last sentence of the Maintenance Order expressly gives the Plaintiff a “discretion” to “extend maintenance” roundly contradicts the Defendant’s claim; one cannot extend a lump sum maintenance order for a fixed sum of US$1.8 million.

57     I thus do not find the Defendant’s proposed interpretation of the Maintenance Order to be one which the plain words and expressions used by the parties can reasonably bear. I therefore cannot accept her interpretation.

58     It follows from the above discussion that the Maintenance Order should be understood as being a periodic maintenance order where the Plaintiff was obliged to pay a monthly sum of US$10,000 to the Defendant monthly.

59     Accordingly, being a periodic monthly order, the Maintenance Order expired upon the Defendant’s remarriage in 2020 by virtue of s 117(a)(ii) of the WC; it no longer has any effect by the time the Plaintiff filed the present application in October 2023.

60     Before I conclude my discussion as to how the Maintenance Order (or the IJ) ought to be interpreted, I will address the Defendant’s submission that she was unrepresented at the time of divorce proceedings in 2019,[note: 25] and that she had trusted the Plaintiff.[note: 26] For completeness, I note that the Defendant has not alleged, in her affidavits or in her counsel’s submissions, that there had been fraud, misrepresentation, or mistake perpetuated by the Plaintiff which led to the execution of the draft IJ or in recording the Maintenance Order as a by-consent order.

61     In my view, little weight can be placed on the Defendant’s reference to her lack of legal representation or knowledge in 2019. The main difficulty I had with the Defendant’s argument in this regard was that the draft IJ she had executed contained a clear endorsement stating that the Defendant “acknowledge[s] that [she has] considered the terms of the agreement and have also been informed of my right to seek independent legal advice”.[note: 27] This endorsement was expressly affixed next to where she had placed her signature (and assent) to the terms of the draft IJ. The Defendant executed the document before, and was witnessed by, a Notary Public.

62     In my view, the Defendant, having chosen to sign and agree to the terms as stated in the draft IJ after having been informed of her right to seek legal advice, must be taken to have accepted the terms of the Maintenance Order and how the relevant statutory provisions may operate on the same.

Other observations

63     Although my decision on the applicability of s 117 above fully disposes the present application filed by the Plaintiff, both parties and their counsel had provided their submissions on two other issues which I will briefly address.

64     First, counsel for the Plaintiff submitted that even if this Court had found that the Maintenance Order to be an order for a lump sum maintenance (paid over a 15-year period), s 118 would still have been applicable because the Maintenance Order should be considered as still “subsisting” when this present application was filed.[note: 28] This stands in contrast to the Defendant’s case which appears to assume that an order for lump sum maintenance cannot be varied or rescinded by the Court.

65     As I have found that the Maintenance Order was not for the payment of maintenance in a lump sum, it is strictly not necessary for me to address the question of the court’s power to vary an order for lump sum maintenance.

66     Nevertheless, having considered the parties’ submissions, I am of the view that the court can (in the sense that it has the power to) vary or rescind a lump sum maintenance order which has not been fully executed. Whether the court does so depend on the facts of the case.

67     It is plain from a reading of s 118 that the court can vary or rescind an order for maintenance so long as it is a “subsisting” order. An order (regardless of whether it is expressed to be for a specified period or for the payment of a lump sum over a series of instalments) would be “subsisting” – ie. that it remains in force or effect – if the payment period has not yet ended at the time of the variation or rescission application.

68     This is also the view taken by Professor Leong Wai Kum in Elements of Family Law in Singapore (LexisNexis, 3rd Ed., 2018), where the learned author opined (at [18.097]) that:

…[a]lthough a lump sum order of maintenance is less amenable to being varied or rescinded, it is not impossible for a court to consider doing either when an extremely good reason is proffered, even, after the lump sum order has been fully executed.

69     Indeed, Professor Leong’s approach goes further as she suggests that the court can vary even a fully executed lump sum maintenance order. As this was not an issue raised in the present case (since there is no dispute that the Maintenance Order in the present case would not have been fully executed even if it was for the payment lump sum maintenance), I will leave this issue to be addressed at the appropriate time and forum.

70     The second issue relates to Plaintiff’s alternative case which I have alluded to at [9(b)] above, ie. whether this Court should nevertheless vary or rescind the Maintenance Order, assuming s 117 was not applicable to the present case.

71     In the event that I am wrong as to the applicability of s 117 (ie. that the Defendant’s remarriage did not operate to terminate the Maintenance Order), I would have accepted the Defendant’s argument and would not have exercised my discretion to either vary or rescind the said orders.

72     Having reviewed the evidence provided by both parties, I am of the view that there has been no material change of circumstances which warrants the variation of the Maintenance Order sought by the Plaintiff.

73     In reaching this view, I take into account the following matters:

(a)     I find that the parties’ negotiations and the surrounding circumstances leading up to the making of the IJ to support the Defendant’s case that the Plaintiff had intended to make provision for the Defendant – his spouse for almost three decades. This is reflected in the discussions between both parties in the months before August 2019 (when the divorce was finalised with the making of the IJ).[note: 29]

(b)     In my view, the Plaintiff was clear in that he had agreed to pay the Defendant maintenance for a period of 15 years back in 2019. If s 117 had not terminated the Maintenance Order by operation of law, there would have been no justifiable basis for the Plaintiff to apply to vary the Maintenance Order.

(c)     Indeed, I do not accept the Plaintiff’s submission that he only found out about the Defendant’s remarriage at their son’s wedding. I agree with the Defendant that on 16 March 2020, the Plaintiff sent the Defendant a message stating unequivocally that:

“…I was naïve when you asked me to change from a lifetime-unless married to an [sic] 15 years-unconditional USD 10k monthly allowance…not knowing you already started an affair, probably prior [sic] our decision to get separated in Dec 2018 and planned to live with [the Defendant’s current spouse] (by the way, I heard the news, not from you of course…congratulations on your marriage, and all the very best!...even if you portrayed to me that you would just get married to get the US green card)…”

[Emphasis added in underline]

That the Plaintiff knew of the Defendant’s remarriage was also supported by his text message in 2022 which references the Defendant having “remarried right after” their divorce.[note: 30]

(d)     Despite being aware of the remarriage, the Plaintiff continued paying the Defendant the monthly amount of US$10,000. This shows that the Plaintiff had himself thought that the Defendant’s remarriage alone would not have justified a reduction in the maintenance amount payable.

(e)     Had s 117 not applied, I would have placed weight on the parties’ negotiated agreement especially given that issues such as when the Defendant’s ability to support herself (including through earning an income from employment, receiving inheritance, etc.) were specifically considered and the parties had agreed to the 15-year maintenance period.[note: 31] Such an agreement should generally be honoured.[note: 32] In the context of consent orders relating to the division of matrimonial assets, Choo J in WRP v WRQ [2024] SGHCF 12 recently observed as follows:

5    […] Although the idea of sanctity of contract is not applied directly in matrimonial proceedings as if they were commercial enterprises, weight is given to the negotiated settlement of the parties. Much give and take are involved in reaching such settlements, and the court should keep this in mind lest it gives more to the taker by taking more from the giver, contrary to the parties’ intentions […].[note: 33]

I find these observations to also be applicable in the present case in light of the evidence submitted by the parties.

(f)     To avoid doubt, I also find that the Defendant’s current income (earned through her work as a real estate agent in the United States) does not represents a material change to her circumstances justifying a reduction of the maintenance amount of US$10,000 which the Plaintiff had agreed to pay. I accept the Defendant’s evidence that she is earning a relatively meagre amount (if at all).[note: 34]

(g)     As regards the Plaintiff’s earning capacity and personal expenses, I find that he remains able to support the Defendant if the Maintenance Order remains in force. His own remarriage does not amount to a sufficient change in circumstances to justify a downward variation (or complete recission) of the Maintenance Order as he would have entered his new marriage fully aware that he was obliged to maintain the Defendant for the 15 years he had promised.[note: 35]

74     Accordingly, had the Defendant not remarried, I would not have exercised the power given by s 118 to vary or reduce the amount payable under the Maintenance Order.

Remaining Procedural Issue

75     I turn now to a final procedure-related issue which arises given the manner in which the Plaintiff had chosen to frame the prayers set out in SUM 3215.

76     In each of his prayers, the Plaintiff had asked for various parts of paragraph 3(d) of the IJ to be “rescinded or varied forthwith”. As I had found that s 117 operates automatically upon the Defendant’s remarriage in 2020 to end all of the Plaintiff’s maintenance obligations, there would be no subsisting order in respect of which I am empowered by the WC to rescind or vary.

77     I therefore make no orders on prayers 1 to 3 of SUM 3215 on the basis that the orders in paragraph 3(d) of the IJ have expired upon the Defendant’s remarriage.

Conclusion

78     The present case was an unfortunate one where an amicable divorce between two parties (who had shared an almost three-decade long marriage) ended up in litigation years later.

79     While the Plaintiff had promised to take care of the Defendant by giving her financial provision for a period of time, this promise came in the form of a periodic maintenance order which both parties agreed to. The nature of such maintenance orders is that they would terminate upon the ex-wife’s remarriage in accordance with the provisions of the WC. The Defendant’s decision to remarry shortly after the divorce thus resulted in the expiry of the said maintenance order.

80     Despite this, both parties continued to follow the order and, as a result, the Defendant has received almost half a million US dollars’ worth of maintenance payments from the Plaintiff since their divorce.

81     I note that the Plaintiff’s counsel’s indication during the hearing that the Plaintiff is not seeking the return of any overpayment of maintenance. I find this gesture to be reasonable and I hope that with this decision, both parties can move on with their lives now that they have both remarried.

82     I will hear the parties on the issue of costs.

[note: 1]Plaintiff’s Written Submissions dd 16.02.24 (“PWS”) at [4] – [7]

[note: 2]The IJ is exhibited at pp. 36 and 37 of PA1

[note: 3]Defendant’s Affidavit d 05.01.24 (“DA1”) at pp. 28 – 56

[note: 4]Plaintiff’s Affidavit dd 12.10.23 (“PA1”) at pp. 31 – 35

[note: 5]Defendant’s Written Submissions dd 19.02.24 (“DWS”) at [11]

[note: 6]PA1 at [19]; DA1 at [34]

[note: 7]PA1 at p. 37

[note: 8]PA1 at [22]

[note: 9]PA1 at [40]

[note: 10]PA1 at [46] – [47]

[note: 11]All references to statutory provisions in this judgment are references to the Women’s Charter 1961

[note: 12]DA1 at [6]

[note: 13]Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [37], [38] and [50]

[note: 14]Women’s Charter (Cap. 353, 1997 Rev. Ed.)

[note: 15]See the predecessor to s 117, ie. s 111 of the Women’s Charter (Cap. 353, 1985 Rev. Ed.)

[note: 16]Singapore Parliamentary Debates, Official Report (27 August 1996) vol. 66 at col. 525 (Abdullah Tarmugi, Minister for Community Development)

[note: 17]DWS at [9]

[note: 18]Plaintiff’s Supplemental Submissions dd 12.03.24 at [16]

[note: 19]See eg., HQH Capital Ltd v Chen Liping [2023] 4 SLR 885 (at [24] – [32]) where the High Court (General Division) discussed the nature and effect of a Tomlin Order

[note: 20]See AOO v AON [2011] 4 SLR 1169 at [14]

[note: 21]See also Defendant’s Supplemental Submissions dd 12.03.24 at [17]

[note: 22]AXM v AXO at [22] and [23]; see also ss 118 and 127 of the WC

[note: 23]See BRZ at [21]; see also VZL v VZM [2022] SGFC 34 at [38] for a detailed summary of the applicable approach to the interpretation of court orders

[note: 24]See for eg., Yap Son On v Ding Pei Zhen [2017] 1 SLR 219 at [30]; Lucky Realty Co Pte Ltd v HSBC Trustees (Singapore) Ltd [2016] 1 SLR 1069 at [2]

[note: 25]DWS at [3]

[note: 26]DWS at [24]

[note: 27]DA1 at p. 57

[note: 28]PWS at [64]

[note: 29]DA1 at pp. 28 – 33

[note: 30]DA1 at p. 67

[note: 31]DA1 at [31] – [33]

[note: 32]See eg., VRX v VRY [2021[ SGFC 62 at [13]

[note: 33]WRP v WRQ [2024] SGHCF 12 at [5]

[note: 34]DA1 at [51] – [53]

[note: 35]George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197 at [39] – [40]

"},{"tags":["Family Law – Maintenance for Ex-Wife and child"],"date":"2024-04-19","court":"Family Court","case-number":"FC/D 399 of 2010 in FC/SUM 2054 of 2023","title":"WTP v WTQ","citation":"[2024] SGFC 19","url":"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%2F31392-SSP.xml","counsel":["Mr Jeremy Chong with Ms Nurul Nabilah of M/s JCP Law LLC for the Plaintiff","Mr Lee Yun En with paralegal Ms Cheyanne Doria of M/s Regal Law LLC for the Defendant."],"timestamp":"2024-04-24T16:00:00Z[GMT]","coram":"Christine Lee","html":"WTP v WTQ

WTP v WTQ
[2024] SGFC 19

Case Number:FC/D 399 of 2010 in FC/SUM 2054 of 2023
Decision Date:19 April 2024
Tribunal/Court:Family Court
Coram: Christine Lee
Counsel Name(s): Mr Jeremy Chong with Ms Nurul Nabilah of M/s JCP Law LLC for the Plaintiff; Mr Lee Yun En with paralegal Ms Cheyanne Doria of M/s Regal Law LLC for the Defendant.
Parties: WTP — WTQ

Family Law – Maintenance for Ex-Wife and child

19 April 2024

District Judge Christine Lee:

Introduction

1       This case involves an appeal by the Plaintiff Father regarding the whole of my decision given on 5 January 2024 on his application in FC/SUM 2054 of 2023 for variation of the maintenance payable by him for the Defendant Mother and the sole child of the previous marriage.

2       The Plaintiff Father filed his appeal in HCF/DCA 8 of 2024 on 19 January 2024.

Facts

The Parties

3       The Plaintiff Father (“the Plaintiff”) and the Defendant Mother (“the Defendant”) married on 3 May 1995, in the People's Government of Xiangcheng District, Zhangzhou City, People's Republic of China. Both the Plaintiff and Defendant are Singapore citizens. There is one child to the previous marriage namely, [Child 1] (m) DOB 17 July 2000 now aged 23 years (“the said child”). The marriage lasted about 15 years before the Plaintiff filed Writ of Divorce on 26 January 2010.

4       Interim Judgement (“IJ”) was granted on 14 October 2010 on an uncontested basis on the Statement of Claim and the marriage was dissolved by reason that the Parties to the marriage had lived apart for a continuous period of at least 4 years immediately preceding the filing of the Writ. The IJ also contained the terms of a Consent Order regarding all the Ancillary Matters in the Statement of Claim. Accordingly, the Certificate of Final Judgement was issued on 17 January 2011.

5       On 28 June 2023, the Plaintiff filed FC/SUM 2054/2023 for 3 prayers but Prayer 1 was in 2 parts as follows:

Prayer 1: That paragraphs 3(6) and 3(7) of the Interim Judgment dated 14 October 2010 (IJ4842/2010/V) be varied as follows:

"3(6) That there shall be no maintenance for the Defendant”.

3(7) That the child namely [Child 1] (M) shall be solely maintained by the Defendant.

6       Prayer 2 of FC/SUM 2054/2023 was on the issue of Costs:

Prayer 2: Parties to bear their own costs of this application.

7       Prayer 3 of FC/SUM 2054/2023 related to other relief orders:

Prayer 3: Such other orders as the Honourable Court deems fit.

The Parties cases

8       Both Parties were represented by Counsel at the hearing, which was held on one day only on 5 January 2024, whereupon I delivered my decision after hearing the submissions of both Counsel.

9       As I was of the view that the 2nd part of Prayer 1 was redundant, I informed the Plaintiff's Counsel that I was striking out this prayer because the said child was over 21 years, and the case law was clear that the said child had to make his own application for maintenance if he so wished. I was also of the view that since the Court Order in Clause 3(7) of the IJ did not provide for maintenance for the said child beyond 21 years, that the Plaintiff was no longer liable to pay any maintenance for the said child. The Plaintiff's Counsel agreed[note: 1]. As such, I held that there was no need to hear the Defendant’s Counsel on this prayer.

10     The Plaintiff's Counsel submitted that the Plaintiff’s case for the 1st part of Prayer 1 was that this application was made under sections 118 and 119 of the Women’s Charter (“WC”) on the grounds that there had been a material change in the circumstances of the Plaintiff such that he was no longer able to provide maintenance for the Defendant Ex-Wife.

11     It was submitted that on the timelines, the divorce was made more than 13 years ago. At the time the IJ By Consent Order was made in 2010, the Plaintiff was working as an architect earning over S$5,000 per month[note: 2]. After the divorce, he started a company [C] in China in the Xiamen province and at the beginning, the income earned was similar to what he was earning at the time of the divorce and actually increased between 2015 to 2016 to about S$8,000 per month[note: 3]. During this time, he kept up with his maintenance obligations and in fact, gave more as he could afford it.

12     It was also submitted that the company started to struggle after 2016 and as of January 2018, the Plaintiff started to find difficulty in making the maintenance payments[note: 4]. The Plaintiff’s Counsel referred to the Defendant’s calculation of arrears at page 25 of the Plaintiff’s Supporting Affidavit which showed the default and lump sum payments to make this up. However, the Plaintiff managed to pay up to over $140,000 from 2018 to-date and the last few payments were made by his current wife to keep him out of prison[note: 5].

13     The Plaintiff’s Counsel submitted that the material change was that for the past 2 years, the company had been in negative territory and making losses and the Plaintiff had been forced to take loans from family and friends. It was submitted that effectively, the Plaintiff had no more income and was just incurring more and more debt[note: 6].

14     The Plaintiff’s Counsel agreed that maintenance for the Defendant ex-Wife extended until her passing or re-marriage. However, it was submitted that the Plaintiff Ex-Husband was not supposed to be the Defendant Ex-Wife’s “general insurer of sorts” as stated in the case of ATE v ATD [2016] SGCA 2 which was an order for ancillaries at the time of divorce. The Plaintiff’s Counsel submitted that paragraphs 30 and 31 of the ATE case, as applied to the present case, was that when the division of property was a fair division at the time of the divorce and the Wife had always been working, now that the Husband was no longer able to maintain the Wife, this taken in totality, was that the Wife was not disadvantaged given that she had already gotten a lot of the wealth from the marriage[note: 7].

15     The Plaintiff’s Counsel also referred to the case of AYM v AYL [2014] SGCA 46 at paragraph 23 which held that: “The cases have established that a material adverse change in the financial circumstances of the Husband, especially where the Wife is reasonably provided for, is a good basis for a downward variation of a maintenance order[note: 8]”.

16     The Plaintiff’s Counsel submitted that in the present case, the Plaintiff was in debt and dependent on his new wife to keep him out of jail. On the other hand, the Defendant had done well for herself and she was working for most of her life. It was submitted that there was nothing to show that she could not find another job as her resignation only happened very recently and it was many years after the divorce[note: 9]. It was submitted that this warranted a rescission of the maintenance payable to the Defendant ex-Wife.

17     The Defendant’s Counsel responded that on the material change of circumstances based on the ATE case, that decision was on the ancillary matters for the Wife’s maintenance. Therefore, it was not a case authority for variation. The Defendant’s Counsel referred to the case of ATS v ATT [2016] SGHC 196 before the Honourable Justice Belinda Ang from paragraphs 10 to 14. Reading from paragraph 10 of the case, Defendant’s Counsel submitted that “as a starting point, the material changes in question must relate to the circumstances prevailing at the time the 2011 maintenance order was granted”[note: 10].

18     The Defendant’s Counsel also referred to paragraph 11 of the ATS case and submitted that “a variation application that seeks to rely on circumstances prior to the order for maintenance should be rejected. It was submitted that, put simply, the Court must be vigilant to sieve out unmeritorious applications and to ensure finality in the judicial process. No applicant should be allowed to have another bite at the cherry merely because he or she is displeased with the outcome of Court proceedings[note: 11]”.

19     The Defendant’s Counsel submitted that the ATS case also referred to the case of Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83 wherein the District Judge in that case had cautioned against back-door appeals that are disguised as variation applications and emphasised that if the change is alleged to be material, “the evidence of change must have arisen after the maintenance order”[note: 12].

20     The Defendant’s Counsel further referred to paragraph 12 of the ATS case and quoted that “a variation application under s 72 and/or s 118 is not a de novo application; the variation Court decides from the vantage point that presumes the final maintenance order to be appropriate at the time it was made and examines whether the evidence demonstrates a change in circumstances has occurred since then to justify a variation or rescission of the final maintenance order made at the ancillary hearing[note: 13]”.

21     The Defendant’s Counsel also highlighted the three factors set out in paragraph 13 of the ATS case and quoted from the case that[note: 14]: “Generally, when the “change in circumstances” condition in s 72 and/or s 118 is invoked, the variation Court strictly decides from the time-point post-ancillary order. The Court should thus examine whether:

(a)     such change being alleged is a change from circumstances prevailing during the ancillary matters hearing.

(b)     such change being alleged arose after the ancillary matters hearing; and

(c)     such change being alleged is sufficient enough to satisfy the court that a variation or rescission of maintenance is necessitated (in light of the factors that determined the final maintenance order made at the ancillary hearing.”

22     Finally, the Defendant’s Counsel also quoted paragraph 14 of the ATS case that: “To summarise, what can qualify as material change within the meaning of s 118 would thus depend on the facts in light of the factors that informed the final maintenance order for the former wife[note: 15].

23     The Defendant’s Counsel informed that the three factors set out in paragraph 13 of the ATS case were endorsed by the Court of Appeal (“CA”) in paragraph 10 of the case of BZD v BZE [2020] SGCA 1. It was submitted that therefore, the starting point for this case must come from the vantage point presuming the appropriateness of the maintenance order made on 14 October 2010[note: 16].

24     In response to my query that, if what the Plaintiff’s Counsel said was true in that the Plaintiff was no longer earning what he was earning at the time the maintenance order was made, whether these same factors were raised before the District Judge at the hearing for MSS xx3/2023 wherein the Plaintiff had sought to vary downwards the agreed maintenance arrears and MSS xx7/2023 wherein the Defendant sought to enforce the maintenance arrears, the Defendant’s Counsel informed that they were[note: 17].

25     However, the Plaintiff’s Counsel disputed this and submitted that they were not having a 2nd bite of the cherry. It was submitted that the earlier submissions in MSS xx3/2023 and MSS xx7/2023 (“the two MSS applications”) were for the reduction of the arrears that was payable. Whereas, in the current case, the application was in relation to the amount payable in the Maintenance Order. As there was another agreement entered into by the Parties, the District Judge declined to adjust the arrears of maintenance. Therefore, the two MSS applications were for a different set of circumstances[note: 18].

26     The Defendant’s Counsel responded that it was not accurate to say that the basis of the two MSS applications was different[note: 19]. It was submitted that the District Judge did not just deal with the fact that there was a pre-existing agreement between the Parties[note: 20]. The Defendant’s Counsel referred to the Grounds of Decision (“GD”) dated 14th July 2023 for the two MSS applications [at paragraphs 23 to 33]. In summary, the Defendant’s Counsel referred to the parts of the GD whereby the District Judge noted that the Plaintiff had not demonstrated that there had been a change in circumstances warranting a downward variation of the arrears because according to his own evidence, his business had suffered greatly since 2016, which predated the enforcement orders. [note: 21]

27     The Defendant’s Counsel submitted that at paragraph 31 of the GD, the District Judge had also taken into account the fact that the Plaintiff had started a new family with his current wife and held that when the Plaintiff voluntarily took on additional financial obligations for his new family, the decision to take on any additional financial obligations must have regard to the existing ones. The District Judge found that the Plaintiff could afford to do both[note: 22]. The Defendant’s Counsel pointed out that in the middle of the Plaintiff’s alleged business downturn in 2018, the Plaintiff had moved his current new family from China to Singapore but gave no reasons why[note: 23].

28     The Defendant’s Counsel also referred to the case of George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197, before the Honourable Judicial Commissioner Ramesh at paragraphs 39 and 40 and submitted on the factors that must be taken into account regarding the Plaintiff’s obligations to his new family, which have to be balanced against the pre-existing obligations to the family from the previous marriage[note: 24].

29     The Defendant’s Counsel summarised the three factors as: (i) the reasonableness of the commitments that the Plaintiff had assumed, whether as regards his new family or otherwise, bearing in mind the pre-existing obligations he owed to the family from the previous marriage. (ii) Whether the Plaintiff and his new family had explored and exhausted all reasonable solutions that would enable him to perform his obligations on both sides of the fence; and (iii) The financial circumstances and needs of the family from the previous marriage.[note: 25]

30     The Defendant’s Counsel submitted that in the present case, the Plaintiff not only remarried, but went on to have 2 children and relocated them from China to Singapore. It was also noted that the Plaintiff now no longer had to pay any maintenance for the said child of his previous marriage, and that instead of paying $2,000 per month, he was now only liable to pay $1,000 per month for maintenance. The Defendant’s Counsel also submitted that since the said child had not made any application for maintenance, essentially the Plaintiff’s obligation to his previous family had halved[note: 26].

31     The Defendant’s Counsel submitted that the Defendant herself had suffered an adverse and material change of her circumstances. The Defendant’s Counsel referred to Tab 1 of the Defendant’s Reply Affidavit at page 66 for a medical report dated 9 September 2023 stating that her medical treatment was for the next 5 to 10 years and made it difficult for her to work. It was submitted that the Defendant’s official last day of service was 5 September 2023 and that she was also suffering from other medical issues and paying for her Mother’s (suffering from cancer) medical bills as well as paying for the said child’s medical school expenses[note: 27].

32     The Defendant’s Counsel also submitted that the Plaintiff had not provided proof of his loss of income[note: 28]. The Defendant’s Counsel referred to paragraph 27 of the Defendant’s Reply Affidavit, wherein the Defendant had stated that the Plaintiff’s UOB account had not been disclosed[note: 29].

33     The Defendant’s Counsel also referred to paragraph 26 of the Defendant’s Reply Affidavit and submitted that, contrary to the Plaintiff’s allegations, the Plaintiff had been receiving at least $4,000 to $5,000 every month into his ICBC account[note: 30]. The Plaintiff had said that this was for salary arrears but he gave no proof of this. The Defendant’s Counsel submitted that the inference was that he was still drawing about $5,000 per month so there was no material change of circumstances in his salary from the IJ date[note: 31].

34     The Defendant’s Counsel also submitted that the Plaintiff appeared to be in a much stronger financial position now as he was currently a joint owner of his HDB flat which was purchased in 2021. It was also fully paid up with a cheque which was issued from his current wife’s bank account. It was submitted that there was no evidence to show where the source of funds came from. However, this did show that the family was in a position of financial strength and stability to be able to fully pay off the flat at the purchase price of $635,000[note: 32].

35     The Defendant’s Counsel also submitted that the company [C] belonged solely to the Plaintiff and that what the Plaintiff had produced did not show the true state of the company’s financial position[note: 33]. It was submitted that this was because from the [C]’s website, it could be seen that the company had been involved in numerous major projects over the past few years as stated in paragraph 15 of the Defendant’s Reply Affidavit[note: 34].

36     It was also submitted that paragraph 17 of the Defendant’s Reply Affidavit showed that it was unsafe to rely on the Plaintiff’s documents on the true state of the company’s affairs as these were not audited statements and were no more than a self-serving exercise[note: 35]. It was therefore submitted that the Plaintiff had not discharged the burden of proof to show that there had been a material change of circumstances to warrant the rescission of the Defendant’s $1,000 per month spousal maintenance[note: 36].

37     The Plaintiff's Counsel responded that in the George Sapooran Singh’s case, there were 2 factors which had contributed to the Court’s decision. First, he had said that he had cancer but this was not true. So, this affected his credibility to the Court. It also did not affect his ability to work. The second reason was that he had claimed that he had to be the sole caregiver of his new wife but the Court found that it was not necessary for him to stop work to be the sole caregiver of his new wife[note: 37]. So, the facts were quite different from the current case where it was submitted that the material change that the Plaintiff was relying on was his total loss of income[note: 38].

38     The Plaintiff's Counsel also submitted that the Defendant had relied on a few bank statements which were only a narrow snapshot of a few months. It was submitted that the true situation was in the company’s statements[note: 39] that had been submitted in the Plaintiff’s Supporting Affidavits at pages 29 to 48 as prepared by the company’s accountants which were submitted to the Chinese authorities. It was also submitted that auditing was not necessary for a company of the size of the Plaintiff’s company[note: 40].

39     The Plaintiff's Counsel referred to the Plaintiff’s Final Reply Affidavit at page 38 for the purchase of the HDB flat and the fact that the money came from his current wife. It was submitted that the Plaintiff was fortunate to have a wife of means but the obligation was on him to pay maintenance for his ex-Wife. The Plaintiff's Counsel submitted that the Plaintiff’s current wife’s resources were her own and the Plaintiff’s sole income came from the company [C] which had been making losses for the past couple of years. It was therefore submitted that the Plaintiff’s lack of income now was the material change[note: 41].

40     The Plaintiff's Counsel also referred to the Plaintiff’s Final Reply Affidavit in paragraph 24 on the closure of the UOB account, which the Plaintiff said that he was forced to terminate as he did not maintain the minimum sum required to continue holding the account, which was $1,000 at any point in time. I noted that in paragraph 24 at page 7 of his Affidavit, the Plaintiff had also stated that prior to the termination, there was only $37.35 left in the UOB account.

41     The Plaintiff’s Counsel also submitted that the Defendant’s claim of her change of circumstances was not an application before the Court. It was also submitted that in any event, the Defendant’s medical report at page 66 of her Affidavit showed that this was a condition that she had been suffering for a long time and she had continued to work for the past 16 years despite this problem[note: 42].

42     With regard to Prayer 2 of FC/SUM 2054/2023 on the issue of Costs, the Plaintiff's Counsel informed that it was still the Plaintiff’s position that the Parties were to bear their own costs of the application. However, the Defendant’s Counsel informed that the Defendant was seeking Costs of between $2,000 to $3,000. The Plaintiff's Counsel responded that if the Court ordered Costs against any Party, then it should be at $1,000[note: 43].

43     For Prayer 3 of FC/SUM 2054/2023 which related to other relief orders, the Plaintiff's Counsel informed that the Plaintiff was not asking for any other relief. However, if Court did not agree to total recession, then the Plaintiff asked the Court to consider downward revision to $100 per month as a nominal sum[note: 44]. The Defendant’s Counsel submitted that there should not be any downward revision.

The Plaintiff’s Appeal

44     The Plaintiff has appealed against the whole of my decision given on 5 January 2024 wherein I had dismissed the Plaintiff’s application to rescind the payment of $1,000 monthly maintenance to the Defendant or to vary this amount downward to the nominal payment of $100 as monthly maintenance to the Defendant.

45     The Plaintiff’s appeal also appears to cover my order that there should be no Costs awarded and as earlier stated, that I had struck out the Plaintiff’s application for the said child to be solely maintained by the Defendant, as being redundant.

My Decision

46      On Prayer 1(a): In making my decision on Prayer 1(a) of the Plaintiff’s application that there be no maintenance payable for the Defendant, I noted that the Plaintiff’s case on the material change in his circumstances was that he was no longer earning the same income of $5,000 per month that he was earning at the time of the IJ Court Order granted in 2010[note: 45].

47     I also noted that the Plaintiff's Counsel had submitted that the Plaintiff had become saddled with debts and that his income had gone into negative territory[note: 46]. I further noted the Plaintiff's Counsel’s submission that the Plaintiff should not be the Defendant’s general insurer for life[note: 47] and that this was consistent with the case law principles.

48     However, I was of the view that the Plaintiff had failed to discharge the burden of proof to show that there was indeed a material change of his circumstances to warrant his application. In my view, the Plaintiff had failed to prove the loss or lack of income that he was relying on now, which had arisen after the IJ Court Order was made in 2010, and in light of the factors that had determined the maintenance order made in 2010, was sufficient enough to warrant a variation or rescission to not pay or reduce the payment of monthly maintenance for the Defendant.

49     In making this assessment, I noted that firstly, the Plaintiff had said that he had been in financial difficulty since 2018. However, the Plaintiff made no application to vary or reduce the maintenance payable by him for the Defendant or the said child until 2022 when he applied to reduce the agreed arrears in EMO xxx1/2022. Whilst I noted that the other Court’s reasons for dismissing the two MSS applications was based on a different set of circumstances, nonetheless it was not disputed in the present case that in 2022, despite his claim of financial difficulty since 2018, the Plaintiff had agreed to these arrears.

50     Secondly, I took into account the fact that although the Plaintiff had said that his company [C] had been incurring debts for the past 2 years, he also did not appeal against EMO xxx1/2022, which decision was made in December 2022, for him to pay instalments of $2,000 per month for the agreed arrears. This was on top of the then monthly maintenance payable by him for both the Defendant and the said child in the sum of $2,000 per month.

51     Thirdly, I noted that the Plaintiff did not explain why he chose to move his new family to Singapore in 2018, despite being in financial difficulty. In fact, the Plaintiff himself stated that it was a known fact that the costs and standard of living in Singapore is higher than in China. This was stated in paragraph 27 at page 8 of the Plaintiff’s Reply Affidavit.

52     In addition, I was of the view that the Plaintiff’s obligations to his new family must take into account his obligations to his previous family. In the present case, I noted that the Plaintiff’s new family was not prejudiced as they were not dependent on him financially because his current wife was of sufficient financial means to be able to fully pay for their current HDB flat in the sum of $635,300 in one cheque payment by way of a Cashier’s Order that was exhibited at pages 35 to 38 of the Plaintiff’s Reply Affidavit.

53     I was also of the view that since the Plaintiff no longer had to pay maintenance for the said child, then his liability to pay maintenance for his previous family had already been reduced by half. On the other hand, based on the 3rd factor in the ATS case[note: 48], I noted that the Defendant had been assessed in 2010 to require the monthly maintenance of $1,000 and that her current circumstances were such that she continued to require the monthly maintenance payable by the Plaintiff. As such, I dismissed the Plaintiff’s application to rescind or downward vary the payment of $1,000 monthly maintenance to the Defendant.

54      On Prayer 1(b): In making my decision on Prayer 1(b) of the Plaintiff’s application that the said child shall be solely maintained by the Defendant, I noted that this was already the case as the said child was over 21 years old (the said child was aged 23 years at the time of the hearing) and Clause 3(7) of the IJ Court Order did not provide for continued maintenance to be payable by the Plaintiff for the said child beyond 21 years[note: 49].

55     I also noted that the said child had not made any application for maintenance from the Plaintiff on his own behalf. In addition, I noted the Defendant’s Counsel’s submission that the Defendant was already paying for the said child’s medical school expenses[note: 50]. This was not disputed by the Plaintiff's Counsel. Therefore, I struck out Prayer 1(b) as I was of the view that this Prayer was redundant. As noted earlier, the Plaintiff's Counsel had agreed with my position[note: 51] at the hearing.

56      On Prayer 2: In making my decision on Prayer 2 of the Plaintiff’s application that Parties were to bear their own costs of this application, I am unable to understand why this is being appealed against as this was exactly what the Plaintiff had asked for in Prayer 2.

57      On Prayer 3: In making my decision on Prayer 3 of the Plaintiff’s application for other relief orders, this has been covered in my decision regarding Prayer 1(a) of the Plaintiff’s application as explained above.

Conclusion

58     Accordingly, I dismissed Prayer 1(a) and Prayer 3, struck out Prayer 1(b) and granted Prayer 2 of the Plaintiff’s application in FC/SUM 2054 of 2023 based on the reasons given above.

59     I have nothing further to add to my said reasons.

[note: 1]See Notes of Evidence at page 6 in lines 22 to 32.

[note: 2]See Notes of Evidence at page 8 at lines 29 and 30.

[note: 3]See Notes of Evidence at page 9 at lines 31 and 32 and page 10 from lines 1 to 2.

[note: 4]See Notes of Evidence at page 10 from lines 7 to 13.

[note: 5]See Notes of Evidence at page 11 from lines 27 to 32.

[note: 6]See Notes of Evidence at page 12 from lines 4 to 30.

[note: 7]See Notes of Evidence at page 13 from lines 25 to 32 and page 14 from lines 1 to 11.

[note: 8]See Notes of Evidence at page 15 from lines 23 to 32 and page 16 from lines 1 to 14.

[note: 9]See Notes of Evidence at page 17 from lines 4 to 23.

[note: 10]See Notes of Evidence at page 19 from lines 19 to 28.

[note: 11]See Notes of Evidence at page 19 from lines 29 to 31 and page 20 from lines 1 to 12.

[note: 12]See Notes of Evidence at page 20 from lines 14 to 22.

[note: 13]See Notes of Evidence at page 21 from lines 1 to 7.

[note: 14]See Notes of Evidence at page 21 from lines 18 to 28.

[note: 15]See Notes of Evidence at page 21 from line 32 to page 22 from lines 1 to 4.

[note: 16]See Notes of Evidence at page 23 from lines 4 to 9.

[note: 17]See Notes of Evidence at page 24 from line 10 to page 25 at line 26.

[note: 18]See Notes of Evidence at page 26 from lines 1 to 24.

[note: 19]See Notes of Evidence at page 26 from lines 28 to 31.

[note: 20]See Notes of Evidence at page 27 from lines 4 to 9.

[note: 21]See Notes of Evidence at page 28 from lines 10 to 22.

[note: 22]See Notes of Evidence at page 29 from lines 28 to 32 and page 30 from lines 1 to 16.

[note: 23]See Notes of Evidence at page 30 from lines 18 to 29.

[note: 24]See Notes of Evidence at page 32 from lines 3 to 17.

[note: 25]See Notes of Evidence at page 32 from lines 25 to 32 and page 33 from lines 23 to 32.

[note: 26]See Notes of Evidence at page 34 from lines 12 to 26.

[note: 27]See Notes of Evidence at page 36 from lines 11 to 32 and page 37 up to line 23.

[note: 28]See Notes of Evidence at page 38 from lines 1 to 4.

[note: 29]See Notes of Evidence at page 39 from lines 20 to 27.

[note: 30]See Notes of Evidence at page 39 from lines 1 to 3.

[note: 31]See Notes of Evidence at page 40 from lines 1 to 25.

[note: 32]See Notes of Evidence at page 38 from lines 14 to 20, page 41 from lines 1 to 32 and page 42 from lines 1 to 9.

[note: 33]See Notes of Evidence at page 42 from lines 17 to 23.

[note: 34]See Notes of Evidence at page 42 from lines 23 to 32 and page 43 from lines 2 to 10.

[note: 35]See Notes of Evidence at page 43 from lines 14 to 32 and page 44 from lines 1 to 8.

[note: 36]See Notes of Evidence at page 44 from lines 18 to 23.

[note: 37]See Notes of Evidence at page 45 from lines 7 to 18.

[note: 38]See Notes of Evidence at page 48 from lines 6 to 16.

[note: 39]See Notes of Evidence at page 49 from lines 10 to 19.

[note: 40]See Notes of Evidence at page 50 from line 1 to page 52 at line 11.

[note: 41]See Notes of Evidence at page 54 from lines 1 to 2.

[note: 42]See Notes of Evidence at page 56 from lines 16 to 32 and page 57 from lines 1 to 3.

[note: 43]See Notes of Evidence at page 58 from lines 16 to 24.

[note: 44]See Notes of Evidence at page 59 from lines 1 to 10.

[note: 45]See Notes of Evidence at page 12 at lines 31 and 32 and page 13 from lines 1 to 10.

[note: 46]See Notes of Evidence at page 13 from lines 1 to 9.

[note: 47]See Notes of Evidence at page 13 from lines 14 to 18.

[note: 48]“in light of the factors that determined the final maintenance order made at the ancillary hearing”.

[note: 49]See Notes of Evidence at page 6 in lines 16 to 22.

[note: 50]See Notes of Evidence at page 37 from lines 17 to 23 and at page 60 from lines 5 to 12.

[note: 51]See Notes of Evidence at page 6 at lines 26 and 27.

"},{"tags":["Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse"],"date":"2024-03-14","court":"Family Court","case-number":"Divorce No 4147/2021","title":"WVL v WVM","citation":"[2024] SGFC 16","url":"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%2F31272-SSP.xml","counsel":["Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife."],"timestamp":"2024-04-02T16:00:00Z[GMT]","coram":"Sheik Mustafa Abu Hassan","html":"WVL v WVM

WVL v WVM
[2024] SGFC 16

Case Number:Divorce No 4147/2021
Decision Date:14 March 2024
Tribunal/Court:Family Court
Coram: Sheik Mustafa Abu Hassan
Counsel Name(s): Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife.
Parties: WVL — WVM

Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse

14 March 2024

District Judge Sheik Mustafa Abu Hassan:

Introduction

1       In this case, the Husband is the Plaintiff, and the Wife is the Defendant. They had married in April 2016. An interim judgment dissolving the marriage was decreed in November 2021 based on unreasonable behaviour of the Wife. The marriage had lasted 5 years and 7 months.

2       There are 2 children of the marriage. It is agreed that the parties share joint custody of the children. The outstanding issues for me to decide on are the care, control, access and maintenance of the children, the maintenance of the Wife, as well as the division of property between the parties.

THE CHILDREN

Background

3       In this section, I shall refer to the Husband as “the Father” and to the Wife as “the Mother”.

4       There are 2 children. The 1st child is 7 years old, and the second is 5 years old. They are both boys.

5       The parties agree to having joint custody of both children. The issue is who shall care and control the children.

6       The Father claims to be the primary caregiver of the children. He is a taxi driver. He fetches them from childcare/school every day, prepares meals for them, eats with them, gives them showers and goes through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers especially regarding one of the children’s speech delay and autism. He handles the administrative matters with the school. The Father alleges that the Mother had committed violence against the children, but his application for a personal protection order on their behalf was dismissed by this Court. The Father also argues that the Mother is likely to return to Vietnam and take the children with her.

7       The Mother claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. In the evenings after work she spends time with the children and puts them to bed. She claims that the Father is not interested in the children. The Mother also applied for a personal protection order against the Father, but her complaint was also dismissed by this Court.

8       I heard counsel for the parties, and I ordered for a child custody evaluation to be conducted. I have now received the report of the evaluators and consider it together with the other evidence already placed before me in the parties’ affidavits. Because many of the interviews conducted during the custody evaluation took place under a promise and expectation of non-disclosure, I will not make specific references of the contents of the report.

9       Based on the report and the evidence before me, I arrive at the following findings:

1.     Both parents are involved in the caregiving of the children. They both love the children and are familiar with their temperaments and needs.

2.     The 1st child is diagnosed with autism since he was 3 years old. His autism is mild, and he is coping well academically. The 2nd child appears to have no special needs.

3.     The children had expressed to the evaluator that they wish to live with the Mother. However, this attachment between them and the Mother is a result of their triangulation, and that they were simply reflecting the Mother’s emotional needs. They are parentified in this regard. If they are placed in the Mother’s care, it is likely that the parentification will become more entrenched and their development affected.

4.     On the other hand, the children do have a healthy attachment to the Father. The Father’s parenting is firm, but also warm. He is observed to be able to set boundaries and regular routines for the children and managing their behaviours whereas the Mother has difficulties doing so.

5.     The Father already has a fully paid-up home to accommodate the children, whereas the Mother’s accommodation is uncertain, since she rents a bedroom in a 4-room flat.

Conclusion

10     I find that there is no reason to not order the parents to have joint custody of the children. In any case, they have agreed to this. Both parents have the best interest of the children at heart, and I believe that they will co-parent effectively.

11     I find that it will be in the welfare of the children that they be in the care and control of the Father.

12     The children must have access with the Mother. There is no evidence to show that it would be against their welfare to have access with the Mother. I shall adopt an access arrangement recommended by the evaluator, as I find that it is fair and workable.

13     The Mother requests that the Father not know her address claiming that she fears he will harass her there. Parents who share joint custody of children, in order to exercise their parental responsibilities, must at least be aware of the children’s whereabouts when the children are with the other parent. The accusations of family violence have been dismissed. I find that there is no more basis to prevent the Father from knowing the Mother’s address because that is where the children will be residing at during access.

14     I therefore conclude that it is in the welfare of the children to order as follows:

1.     By consent, both parents shall have joint custody of the children.

2.     The children shall be in the care and control of the Father.

3.     The Father shall provide the children with access to the Mother as follows:

a.       On weekends alternating between the following:

(A)       First weekend: Friday after school to Monday morning. The Mother will collect the children from their schools on Friday and she shall send the children to school on Monday; and

(B)       Other weekend: Friday after school to Saturday evening at 8pm, when the Father shall collect the children.

b.       During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Father shall collect the children.

c.       Every Wednesday after school until 8:30pm. The Mother shall collect the children from school and shall return them to the Father by 8:30pm.

d.       The children shall also have access to the Mother via electronic means during non-access periods, and the Father shall have access to the children via electronic means during access periods.

e.       The children shall have access with the Mother during the first half of school vacations. The Mother shall collect the children from school at the start of the school vacation and the Father shall collect them on the second Saturday at 9pm.

f.       For Chinese New Year, the children shall be with the Father on the first day, and the children shall have access with the Mother on the second day from 9am to 6pm.

g.       For public holidays other than Chinese New Year, the children shall have access with the Mother on alternate public holidays from 9am to 6pm.

h.       The parents shall not comment about each other in the children’s presence.

i.       Neither the Father nor the Mother shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.

j.       Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.

Maintenance of the children

Background

15     On maintenance for the children, the Father seeks the Mother to pay $778.80 a month. The Father says that the children’s monthly expenses are $1,180.00. He argues that the Mother ought to bear 66%, or $778.80.

16     The Mother says that the children’s expenses are $420.00 for each child. This does not include housing, so she asks for $600.00 a month each to cover their housing.

17     The children are 6 and 4 years old at the time of hearing.

Means of parents

18     The Father is a taxi driver claiming to earn a take home income of $1,800.00 a month. The Mother disputes this and claims that he earns about $5,000.00 a month. She points out that the Father did not produce evidence from his taxi company to show his monthly collections.

19     In this regard, I find that the Father’s income tax assessment is prima facie proof that his income is $18,000.00 a year, which is $1,500.00 a month, lower than what the Father claims. I therefore accept $1,800.00 a month as the Father’s income.

20     The Mother is a waitress taking home $2,044.96. She pays $1,800 in rent. This leaves her disposable income at $244.96.

21     The total means of the parties is therefore $2,044.96 a month.

Expenses of children

22     I am conscious that there is no requirement that every expense must be proved (UEB v UEC [2018] SGHFC 5, at paragraph 13). I instead apply a broad brush in evaluating the expenses and come to my findings on them.

23     I accept the evidence of the Father that the expenses of the 1st child are $750.00 a month, and the expenses of the 2nd child are $430.00 a month. I find that these are reasonable taking into account the needs of the children and the means of the parents. The total is $1,180.00.

Allocation of maintenance

24     The legal position is that each parent has an equal responsibility to maintain the children it but does not mean that they have to bear equal shares of the burden (BPC v BPB [2019] 1 SLR 642, at paragraph 111).

25     I take into account that I have ordered the care and control of the children to be with the Father.

26     Based on her disposable income, that the Mother’s proportionate share to contribute to the children’s maintenance is 12%.

27     Pursuant to the orders of access I have made above, the children will be spending a considerable amount of time with the Mother – on Wednesday evenings, and on weekends from Friday after school. During these periods, the Mother must bear the children’s expenses.

28     I apply a broad brush to this issue and find it to be fair and reasonable for each parent to bear all the expenses of the children when the children are with them. I therefore make no order that the Mother pay any monthly maintenance for the children to the Father.

29     However, I find it to be fair and reasonable to order that the Mother shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.

Division of assets

30     Hereinafter I shall refer to the Plaintiff as “the Husband” and to the Defendant as “the Wife”.

Jointly owned asset

31     There are no jointly owned assets.

The Husband’s assets

32     It is not disputed that the Husband has the following in his own name:

1.

DBS bank account

$784.80

2.

CPF accounts

$277,618.04

 

Total

$278,805.56



33     The Husband has a UOB savings account shares with his ex-wife containing $424.72. The Husband has a joint saving account with his daughter from his previous marriage containing $501.63. I exclude these from the asset pool as they do not fall in within the definition of matrimonial asset under section 112 (10) of the Women’s Charter, since they were not acquired during the present marriage, nor substantially improved during the marriage nor used for the purposes of the family.

34     The Husband has 2 CDA accounts for 2 children. I exclude them from the asset pool as these by nature are meant specifically for the children.

35     The Husband has 2 joint accounts with his minor children from the present marriage containing a total of $402.72. I include these in the asset pool as they fall within the section 112 (10) of the Women’s Charter.

36     The Husband is the sole owner of the matrimonial home, which is a 3-room HDB flat purchased in May 2011. There is no outstanding loan. This flat was bought before the parties’ marriage in 2016. The parties and the children of their marriage lived in this flat. The value of the flat is not disputed to be $441,000.00.

37     I find that the Husband’s own assets amount to $720,208.28.

The Wife’s assets

38     It is not in dispute that the Wife has assets in her own name as follows:

1.

Bank account

$1,461.90

2.

CPF accounts

$10,892.56

 

Total

$12,354.46



39     The Husband claims that he gave to the Wife a sum of $55,000 which the Wife used to purchase a property in Vietnam. The Wife denies this. The Husband bears the burden of proving this fact. I find that he has not proved this.

40     The Husband alleges that the Wife has a property, an estate and bank accounts in Vietnam which has not been disclosed. He asks for an adverse inference to be drawn against her for this.

41     The Wife says that she used to have a property in Vietnam that was inherited by her from her previous husband who passed away in 2007. She sold that property and used part of the sale proceeds to purchase a smaller property in 2019. Her mother and elder sister lives there. There is no mortgage loan outstanding, and she says its value is $10,000. She did not produce any evidence in support of these. I will deal with this issue below.

Total asset pool

42     I find that the combined pool total matrimonial asset pool amounts to a value of $732,562.74. The details are in the table below.

Asset

Value

Husband’s assets

$720,208.28

Wife’s assets

$12,354.46

Total asset pool

$732,562.74



Parties’ positions

43     The Husband asks for the home to be retained by him solely and the Wife be removed as a permitted occupier without any consideration from him. He asks that he retain his own assets. He asks that the Wife pay him $55,000 or that he gets a share of the Wife’s Vietnam property.

44     The Wife asks for the home to be sold in the open market and the sale proceeds to be divided between the parties; or that the Husband may retain the flat and she gets a share of the asset pool.

Direct contributions

45     Consequently, I find that each party’s direct contributions to the total matrimonial asset pool that are as follows-

46     The direct contributions are as follows:

Total direct contributions

$732,562.74 (100%)

% by the Husband

98.3%

% by the Wife

1.7%



Indirect contributions

47     The Husband says that he has been the sole breadwinner of most of the marriage. He applied for the Wife’s permanent residency and made her an authorised occupier of his flat. He says that he is the primary caregiver of the children. He fetched them from childcare/school every day, prepares meals for them, eats with them, gives them showers and go through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers on one of the children’s speech delay and autism. He handles the administrative matters with the school. He points out that the Wife left the matrimonial home and became uncontactable for a month in April 2020, and he claims that even then the Wife did not bother with the children.

48     The Wife says that she made half of the indirect contributions. She says that after marrying the Husband she relocated to Singapore but was unable to find employment, so she could not contribute financially to the home. She sold her property in Vietnam which she inherited from her deceased previous husband, and used the proceeds of the sale to buy a smaller property in Vietnam. She says that she alone made the payments for the purchase. Indeed, she claims that the reason she sold the property was because she needed the funds as the Husband had ceased to give financial support for her and the children. She says that after the birth of the 2nd child the Husband stopped maintaining her and the children even though she was not yet a permanent resident and so was unable to work. She says she was in a constant state of fear and uncertainty, and there were days that she did not have enough to eat. She says that a year later the Husband threw her out of the home, and she had to sleep in a park. She says that when she begged to return, the Husband demanded that she pay him $400 a month for rent. She says that she obtained permanent residency in April 2021 which she paid for herself. She took on more than one job. With her income she was able to purchase appliances such as fans, cooking apparatus, crockery, pillows, bedsheets and daily household necessities. She claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. She cooks for the family. She buys groceries. In the evenings she spends time with the children and puts them to bed. She cleans the home. She claims that the Husband is not interested in the children and does not assist in the housework.

49     The marriage was 5 years long. There are 2 children. Both parents worked to support the family. They both made sacrifices, and at times supported each other financially. I apply a broad brush to the facts before me. I find that the indirect contributions of the parties are not equal, but 60% from the Wife.

 

Husband

Wife

Direct contributions

98.3%

1.7%

Indirect contributions

40%

60%

Result

138.3%

61.7%



Average ratio

50     The size of the matrimonial asset pool is not extraordinarily large, nor was it accrued by any one party’s exceptional effort. The extent and nature of indirect contributions are also not of such nature that calls for exceptional consideration. It was a relatively short marriage of 5 years. The bulk of the assets belong to the Husband, which he acquired before the marriage. I therefore exercise my discretion in these circumstances and give more weight of 60% to the direct contributions.

 

Husband

Wife

Direct contributions (60%)

58.98%

1.02%

Indirect contributions (40%)

16%

24%

Result

74.98%

25.02%



The Wife’s Vietnam assets

51     I find that the Wife did not make a reliable declaration of the value of the property in Vietnam as well as the bank accounts there. Based on the evidence I am not in a position to find what the correct value of the property is. The information must have been either available to the Wife, or obtainable by her. I find that it would be just and equitable to factor in 10% for an inference against the Wife regarding the true value of the property. The result is shown as follows.

 

Husband

Wife

Direct contributions (60%)

58.98%

1.02%

Indirect contributions (40%)

16%

24%

Result

74.98%

25.02%

After inference (10%)

84.98%

15.02%

Share of total asset pool

($732,562.74)

$622,531.82

$110,030.92



Result

52     I begin by ordering the parties to keep the assets they each already have in their own names.

53     As above stated, the Wife already has $12,354.46 of her own assets. I order that the Husband shall pay to the Wife the remaining amount of $97,676.46. I shall deal with this together with the issue of the Wife’s maintenance below.

Maintenance of the Wife

Background

54     The Wife seeks an order of maintenance for herself in the monthly sum of $600.

55     As previously stated, the Wife is a waitress earning $2,044.96 a month. She pays most of that for rent.

56     The Husband argues that there ought to be no order of maintenance for the Wife. He argues that the Wife is relatively young and able bodies, whereas he is in the sunset of his career. He submits that the Wife has failed to make full and frank disclosure about her access to funds. He argues that the Wife rent payment is not proved.

Findings

57     Whether or not I ought to order the Husband to pay maintenance to the Wife is a multifactorial inquiry (TNL v TNK and another appeal and another matter [2017] SGCA 15 at [62]). It is supplementary to my order on the division of the assets (ATE v ATD [2016] SGCA 2 at [33]).

58     The Wife has $1,461.90 in her bank account. I have found her share of the matrimonial asset pool to be $110,030.92, of which the Husband is to pay her $97,676.46. These should be sufficient provision for the Wife to transit to a post-divorce life and provides a clean break in the parties’ marital relationship.

59     I therefore order that the Husband to pay a lump sum of maintenance to the Wife in the sum of $97,676.46 within 6 months of the date of final judgment.

Costs

60     The Wife is legally aided.

61     The Husband succeeded on the issues of care and control of the children, as well as the division of assets. The Wife succeeded on the issue of maintenance to her.

62     I find that it is fair and just to make no order as to costs.

Clarification

63     After I released the above judgment, Counsel for the Wife wrote in requesting a clarification on 2 issues. The first issue is about the interpretation of the terms of access. Counsel says that the term “weekends alternating between first weekend and other weekend” is confusing and requests clarification. In reply, Counsel for the Husband agrees.

64     I agree. In order to clarify the order, I amend it to as follows:

Custody care and control of children of the marriage

1.    By consent, both parents shall have joint custody of the children.

2.    The children shall be in the care and control of the Plaintiff.

3.    The Plaintiff shall provide the children with access to the Defendant as follows:

a.     Every weekend, alternating back and forth between the following:

(A)     Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and

(B)     Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.

b.     During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.

c.    Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.

d.    The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.

e.     In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.

f.    For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.

g.    For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.”

65     The second issue that the Wife’s Counsel requests clarification is about my order that the Husband pays to the Wife a sum of $97,676.46 as lump sum maintenance in order to reflect her share of the division of the matrimonial asset pool. The Wife’s Counsel suggests that the amount be transferred from the Husband’s CPF to the Wife instead, and that there be no order on maintenance for the Wife. The learned Counsel for the Husband concurs with this view.

66     I did not make an order to transfer from the Husband’s CPF to the Wife simply because it was not requested for by the Wife during the course of the hearing. However, since both parties are in agreement on this issue, I amend the relevant portions of my order to as follows:

Division of the matrimonial assets (aside from the matrimonial home)

The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.

The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):

The Member’s CPF account(s) to transfer from

Amount to transfer

Ordinary Account

$97,676.46



This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.

The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.

The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.

Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.

Maintenance for wife / incapacitated husband

The Plaintiff is not liable for maintenance to the Defendant.

_________________________________________

ORDERS :

ORDERS (CLARIFIED):

Custody care and control of children of the marriage

1.     By consent, both parents shall have joint custody of the children.

2.     The children shall be in the care and control of the Plaintiff.

3.     The Plaintiff shall provide the children with access to the Defendant as follows:

a.      Every weekend, alternating back and forth between the following:

(A)        Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and

(B)        Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.

b.      During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.

c.     Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.

d.     The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.

e.      In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.

f.     For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.

g.     For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.

h.     The parents shall not comment about each other in the children’s presence.

i.     Neither the Plaintiff nor the Defendant shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.

j.     Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.

Maintenance for child(ren) of the marriage

Each parent to bear all the expenses of the children when the children are with them. The Defendant shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.

Division of the matrimonial home

The Plaintiff shall retain all rights interest and share in the matrimonial home at Block XXX Fernvale Road #XX-XXX, Singapore XXXXXX. If applicable, the Defendant shall cease to be an authorised occupier of the home.

Division of the matrimonial assets (aside from the matrimonial home)

The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.

The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):

The Member’s CPF account(s) to transfer from

Amount to transfer

Ordinary Account

$97,676.46



This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.

The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.

The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.

Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.

Maintenance for wife / incapacitated husband

The Plaintiff is not liable for maintenance to the Defendant.

Costs

No order on costs.

Such further or other reliefs as the Court deems fit

Liberty to apply.

"},{"tags":["Mental Capacity Act – Appointment of Deputies – Revocation of Appointment"],"date":"2024-03-15","court":"Family Court","case-number":"FC/OSM 253/2023 and FC/Summons 3230/2023","title":"WVG v WVH and another","citation":"[2024] SGFC 14","url":"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%2F31182-SSP.xml","counsel":["Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff","Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&L Gates Straits Law LLC) for the Defendants."],"timestamp":"2024-03-20T16:00:00Z[GMT]","coram":"Shobha Nair","html":"WVG v WVH and another

WVG v WVH and another
[2024] SGFC 14

Case Number:FC/OSM 253/2023 and FC/Summons 3230/2023
Decision Date:15 March 2024
Tribunal/Court:Family Court
Coram: Shobha Nair
Counsel Name(s): Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff; Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&L Gates Straits Law LLC) for the Defendants.
Parties: WVG — WVH — WVI

Mental Capacity Act – Appointment of Deputies – Revocation of Appointment

15 March 2024

District Judge Shobha Nair:

Introduction

1       The plaintiff in this matter sought to revoke an order appointing the defendants as deputies (deputyship order) for their father (P) who has lost the mental capacity to make decisions for himself in respect of his personal welfare and his property and affairs. P and his wife (the mother of the defendants) have been separated since 2014 when P left the matrimonial home to stay with the plaintiff and her children. The plaintiff also sought by way of summons 3230/2023, to be a joint deputy with the defendants, should the revocation application not be granted. She sought to be allowed access to P which was strongly resisted by the defendants.

2       Having considered the evidence, I made the following orders:

a.     The application for the revocation of the deputyship order was dismissed.

b.     The plaintiff however shall be appointed as deputy jointly with the defendants insofar as it relates to the management of P’s personal welfare. The management of P’s property and affairs shall continue to remain with the defendants who are subject to the supervision of the Office of the Public Guardian and would need to report annually on the performance of their obligations in this regard.

c.     P shall continue to stay with the defendants if there is no agreement amongst the parties on the living arrangements for P. The plaintiff shall be permitted to visit and care for P daily if she wishes to and shall be jointly responsible for the management of P’s health. All parties are to be privy to communication with caregivers and medical professionals and all decisions are to be made jointly in the interests of P.

d.     Each party is to bear his/her own costs.

3       The plaintiff appeals against the order dismissing the application for the revocation of the deputyship order and the dismissal of her request to be appointed as co-deputy for P’s property and affairs. The defendants appeal against all orders save for the order dismissing the application for revocation of the deputyship order.

Undisputed Facts

4       The plaintiff and P entered a romantic relationship when P was still married. P moved in with the plaintiff and the latter’s children in 2014. Between 2015 and 2022 the couple travelled together on at least 24 occasions to various destinations.[note: 1]A motorcycle accident whilst in Krabi in 2016 resulted in P’s urgent return to Singapore. He was admitted to a hospital and brain scans revealed the need for surgery. P did not provide his consent. Although he appeared to show improvement a few months after the accident, P’s health declined significantly from 2018. He was also diagnosed with dementia in January 2020 after a fall while at the plaintiff’s home.[note: 2]

5       P’s wife filed for divorce in April 2021. In July 2022, the defendants filed an application seeking an order for their appointment as deputies (FC/OSM233/2022). They did not inform the Court of the relationship between P and the plaintiff and only detailed the immediate family members as relevant persons. One of the key reasons in seeking the appointment was to enable counsel to be instructed to act for P in the divorce proceedings. Interim judgment was granted on 9 November 2021 and orders on ancillary matters have been made.

6       I issued the order appointing the defendants as deputies in September 2022, having been satisfied that they had a proper plan to care for P and as children of P, are likely to provide long term care for their father.

7       In April 2023, a summons was filed by the defendants seeking that the plaintiff be prevented from access to P. It was only then known to the Court that P was in a long-term relationship with the plaintiff. I had directed that the summons be served on the plaintiff.

8       In August 2023, the plaintiff filed the present application in OSM 253/2023 and subsequently in October 2023, summons 3230/2023.

Should the order be revoked on account of non-disclosure of a relevant fact?

9       Section 20 (7) of the Mental Capacity Act (2008) (MCA) provides for a Court to discharge a deputyship order or vary the same. Section 20(8) of the Act provides specific circumstances when an appointment of a deputy may be revoked. For ease of reference, these are when a Court is satisfied that:

a)     A deputy is convicted, on or after 1 September 2018 (but not before the deputy’s appointment by the court), of an offence (whenever committed) of criminal misappropriation, criminal breach of trust, cheating, theft or extortion or any other offence involving fraud or dishonestly, whether as against P or another person;

b)     The deputy engages or has engaged in conduct that contravenes the deputy’s authority conferred by the court, or that is not in P’s best interests (whether or not the deputy is acting under a court order);

c)     The deputy proposes to engage in conduct that would contravene the deputy’s authority conferred by the court, or that would not be in P’s best interests (whether or not the deputy is acting under a court order); or

d)     Where the deputy is a professional deputy, the registration of the deputy as a professional deputy is cancelled.

10     When the defendants filed their application to be appointed as deputies, their counsel at the time did not inform the Court that P was in a relationship with the plaintiff and that they were living together. An application to be appointed as a deputy can be made by anyone who has been giving care or is able to give care to P. It is not only available to family members. In fact, in the supporting affidavit filed by the defendants in support of their appointment in OSM 233/2022, they omitted to indicate the name of the plaintiff in a table which is titled “other relevant persons” and which provides examples of such persons to be those that are in a close relationship with P or who give care to P.[note: 3] The omission to inform the Court of this has serious consequences as it shut out the plaintiff and prevented her voice from being heard. Even if the children of P may not have a good relationship with the plaintiff and may even view her as instrumental in the break-up of the relationship between their parents, they cannot take the position that P need not have the plaintiff participate in P’s care. If it is evident that P wanted the plaintiff to be a part of his life, the responsibility of a Court is to take that into consideration in determining the best care plan for P.

11     P has lost his autonomy to decide on matters pertaining to his personal welfare and property and affairs. It would be important to look at the words and actions of P while he had the capacity to make his own decisions, on what would serve him when he no longer has that capacity. In fact, the newly engaged counsel for the defendants acknowledged that the defendants’ omission to state the plaintiff as a relevant person, was regrettable.[note: 4]

12     The omission of facts may well occasion the revocation of orders if material. This was seen in Wong Meng Cheong v Ling Ai Wah[note: 5] where the Court found inter alia that the conduct of the deputies was reprehensible and violated the interests of P. In the case before me, the failure to recognise the plaintiff as a relevant person does not in and of itself necessitate a revocation unless the appointment of the defendants was inappropriate.

Was the appointment of the defendants as deputies appropriate?

13     There is a need for stable and sustainable care for persons without mental capacity. The appointment of adult children as deputies for their parent(s) is desirable, provided they have the capacity to care and have good care plans in place. With P’s marriage having been dissolved, the closest family members of P are his children. They are both working adults and are well placed to care for P and to manage his property and affairs. The nature of kinship made their appointments for the long term feasible.

14     It was the position of the plaintiff that when the defendants were appointed as deputies, they did not give proper care to P. She spoke for example of an incident caught on her closed-circuit television which showed that the 2nd defendant was on his mobile phone while P struggled to get into bed to rest. This and all other allegations of neglect was vehemently denied by the defendants. They made their own allegations against the plaintiff. It was their position that P was a fit and healthy individual prior to him leaving the matrimonial home to stay with the plaintiff. They pointed to various incidents of neglect even as recently as February 2023 which resulted in another admission to hospital. Allegations of neglect were similarly denied by the plaintiff. It would be difficult to assess the accuracy of the allegations made by the parties. Caregiving is challenging and no caregiver is perfect. While I understand the emotion behind the allegations, I did not find any pattern of neglect by either the plaintiff or the defendants. Much of the events after the hospital admission in February 2023 however, were relevant to the applications before me.

15     Upon his discharge from hospital, the defendants placed P in a serviced apartment. This appeared to have also been an effort to prevent access to the plaintiff. The plaintiff pointed to the fact that P had been moved from one hotel/service apartment to another from March 2023[note: 6] without anyone giving him proper care. She said she visited him every day, much to the chagrin of the defendants who did not permit such visitation. She claimed that P was not fed properly, and medication not properly administered. Again, this was denied by the defendants. The defendants then took active steps to restrict or prevent the plaintiff’s access to P. The defendants also pointed to a withdrawal of a total amount of $450 000 from P’s bank account during the period P was staying with the plaintiff.[note: 7] As P is a man of sound financial means, the suggestion was that the plaintiff ought not to oversee P’s financial matters to prevent any possible mismanagement.

16     I was concerned by the fact that P was made to move from one hotel to another. More permanent accommodation and care arrangements should have been put in place when or shortly after the orders appointing the defendants as deputies were issued. Any mistrust they had over the care provided by the plaintiff was not responded to by the provision of better care but instead, what appears to be even poorer arrangements. An individual in P’s shoes would require close supervision, good nutrition, and a stable physical environment. P was largely left to himself in these hotels. I expressed this to the defendants’ previous counsel during various case conferences.

17     When the matter came up for hearing, the care arrangements were significantly different. A two-bedroom apartment was rented for P to stay in and a full-time helper for his care was engaged by the defendants. The 2nd defendant spoke of how he attended a 3-day course to help him care for P better and a dietician was engaged to plan P’s meals.[note: 8]

18     While the initial plans of the defendants fell short of what would be expected for P, the steps the defendants have taken since, and which are in place today, are satisfactory. While it is possible that the defendants took these steps quickly in order to satisfy the Court, I do not believe that they would renege on their obligations after the hearing. There was no need for the revocation of the order. The question that stood to be considered instead was whether the request of the plaintiff to be a co-deputy of P ought to be granted.

Would it be in the best interests of P to enable the plaintiff to be a co-deputy?

19     It is understandable that the children of P have a deep sense of suspicion and even scepticism towards the plaintiff who entered a relationship with their father when the latter was still married. Even as she claimed that she did not know he was married at the time the relationship started, she came to know of it but continued. While the feelings of the children can certainly be understood, it is not the Court’s place to deny the plaintiff a place in the care of P if it was appropriate to do so. P and the plaintiff were in a close relationship, and it was P’s desire to stay with the plaintiff. The plaintiff did accompany P for his various medical appointments, and they lived as a family with the plaintiff’s children. Section 6 of the MCA addresses the issue of best interests and specifically provides at s 6(8) that a Court should consider:

a)     the person’s past and present wishes and feelings (and in particular, any relevant written statement made by the person when the person had capacity);

b)     the beliefs and values that would be likely to influence his or her decision if the person had capacity; and

c)     the other factors that the person would be likely to consider if the person were able to do so.

20     I was of the view that the plaintiff should continue to play a part in the personal welfare of P and ordered accordingly. P was clearly comfortable in the plaintiff’s presence as seen in various Whatsapp messages.[note: 9] There was no need to deny her continued engagement in his care. At the same time, the health of P was such that it was imperative that there be a constant care provider and minimal disruption to his routine. The presence of a domestic helper at his rented residence which was situated in an area that he was familiar with, was closer to the ideal than to move him back to the plaintiff’s residence. More importantly, P requires care that the plaintiff may not be able to manage effectively, given that she is a working adult. P’s needs may increase over time and a helper who is accessible at all times would be prudent. I ordered that the plaintiff may visit P at any time if P does not live with her and that she be engaged on any medical decisions that may need to be taken. I did not accept the defendants’ position that the plaintiff was a poor caregiver as seen in the numerous times that P had fallen ill when in her care. They pointed to an incident where P ended up in hospital after the plaintiff took him for a meal at a hotel. Given that P suffers from gout, certain foods provided in the buffet should not, they alleged, have been consumed. This reductionist approach to the issue of care was not helpful. For the incident at the hotel, the plaintiff chose to take P for a meal and did not have any intention to cause harm. Unfortunately, the consumption of unsuitable food led to P having to be admitted to hospital. Often even with the best of care, incidents like these do happen. Health issues including gout, a motorcycle accident, a fall while at home – these collectively contributed to the deterioration of P’s health. There was nothing in the evidence that points clearly to the plaintiff as having been so negligent as to have caused it.

21     Similarly, I did not find the argument that the poor relationship between parties is a reason to disqualify the plaintiff from working with the defendants in the care of P. The parties, as adult caregivers share a close relationship with P. There may be many differences in how care should be given. The idea however is to work together and for each to step up in areas where another may not be able to. All the deputies work outside the home and do not have the ability to provide care at all times. Rather more realistically, the domestic helper will be the one managing the day to day needs of P. As explained above, the most challenging issue was where P should stay, and I had ordered that he may remain in his current condominium unit with his children attending to him there if an alternative was not agreed to. It was inappropriate to restrict access by the plaintiff to P and to disengage her from P’s care. However, I did not entrust the plaintiff with the management of P’s property and affairs. Given the suggestion that monies may have been withdrawn in the past from P’s bank account(s) and which therefore require further investigation, and the fact that P had gone through divorce proceedings very recently, necessitated in my view, some degree of caution.

Costs

22     I had ordered that each party was to bear his or her own costs. Typically for applications under the MCA, costs are drawn from the estate of the person to be assisted (TRD v TRE & Ors.)[note: 10] unless some other order is warranted.[note: 11]

23     In this case, the plaintiff was not successful in her main application to revoke the deputyship order nor her request to be appointed as a co-deputy for the property and affairs of P even as she was successful in being appointed as a co-deputy for the personal welfare of P. The defendants even though successful in resisting the revocation of the deputyship order had omitted to inform the Court of the plaintiff’s close relationship with their father which occasioned this litigation. In the circumstances, I was of the view that each party was to bear his or her own costs.

Conclusion

24     When an individual loses his or her mental capacity, the person who is appointed as deputy would need to always act to serve the best interests of the person to be assisted. The tendency to believe that a certain course of action is in the best interests of P when it is in fact a course that fits the values and beliefs of the deputy would need to be avoided.

25     On the totality of the evidence, it is my view that there was no need to revoke the order appointing the children as deputies. The need for long-term sustainable plans is crucial for P’s wellbeing. I believe the children will be able to provide this. It bears repeating that no plan is perfect but perfect efforts must always be exercised. The omission to identify the plaintiff as a relevant person while regrettable, is not fatal. The continued relevance of the plaintiff in the life of P is reflected in my orders enabling her to work with P’s children in the management of P’s care.

[note: 1]Paragraph 10 of the plaintiff’s affidavit of 4 August 2023.

[note: 2]Ibid. at paragraph 27.

[note: 3]Pages 8 and 9 of the Supporting Affidavit of the defendants dated 6 July 2022.

[note: 4]Page 9D of NE dated 1 December 2023.

[note: 5][2012] 1 SLR 549 (HC)

[note: 6]Paragraph 44 of the plaintiff’s affidavit of 4 August 2023.

[note: 7]Paragraph 18 of the defendants’ affidavit of 28 April 2023.

[note: 8]Paragraph 27-29 of the second defendant’s affidavit dated 15 November 2023.

[note: 9]CWS-7 of the plaintiff’s affidavit of 4 August 2023.

[note: 10][2016] SGFC 55.

[note: 11]See s 40 (1) and (2) of the MCA and Rules 190 and 852(2) of the Family Justice Rules 2014.

"},{"tags":["Family Law – Family violence – Orders for protection"],"date":"2024-03-12","court":"Family Court","case-number":"SS No 998 of 2023","title":"WVK (on behalf of children) v WVJ","citation":"[2024] SGFC 15","url":"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%2F31177-SSP.xml","counsel":["The applicant in person","The respondent in person."],"timestamp":"2024-03-19T16:00:00Z[GMT]","coram":"Patrick Tay Wei Sheng","html":"WVK (on behalf of children) v WVJ

WVK (on behalf of children) v WVJ
[2024] SGFC 15

Case Number:SS No 998 of 2023
Decision Date:12 March 2024
Tribunal/Court:Family Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): The applicant in person; The respondent in person.
Parties: WVK (on behalf of children) — WVJ

Family Law – Family violence – Orders for protection

12 March 2024

District Judge Patrick Tay Wei Sheng:

1       A husband applied for personal protection orders (each, a “PPO”) on behalf of his four children against his wife. He alleged that his wife had, in her attempts to remove from his care the youngest – infant – child of theirs, placed all four children in fear of hurt. Having heard the evidence of the spouses and the three older children, I granted PPOs in favour of the three older children but limited those PPOs to a duration of a year. I declined to grant a PPO in favour of the infant. I also directed the spouses and the children (save for the infant) to attend counselling with a view to helping the spouses to co-parent the children.

2       The wife has filed an appeal against these decisions. I now provide my reasons for them.

3       The spouses married in 2022. They had the infant, who was their sole biological child, in January 2023. Apart from the infant, they had three older children (the “stepchildren”) from a previous marriage of the husband. The stepchildren were respectively 12, 9, and 8 years of age.

4       Unfortunately, fissures developed in the marriage. By early-2023, the spouses had commenced divorce proceedings in the Syariah Court. The spouses began living separately, with the stepchildren in the care of the husband and the infant in the care of the wife. But the access of the husband to the infant remained a source of disagreement between the spouses.

5       On 26 May 2023, pursuant to an informal arrangement between the spouses, the husband picked up the infant from the residence of the wife. Pursuant to that arrangement, too, the husband was to return the infant to the care of the wife on 28 May 2023. But further disagreements ensued between the spouses over the infant, and the husband did not so return the infant to the care of the wife.

6       On 29 May 2023, the solicitors for the wife sent a letter to the husband. In that letter, they demanded that he return the infant to her care “within 24 hours of receiving this letter (no later than by 12 Noon on Wednesday, 31 May 2023).” The letter added: “Failure to comply with this demand will leave our client with no alternative but to pursue legal remedies available to her to ensure the immediate return of the [infant] and seek appropriate legal action to protect the rights of our client”.[note: 1]

7       On 31 May 2023, after the husband did not comply with this demand, the wife, her mother, and her younger sister appeared uninvited at his residence, which was a rental flat. They knocked repeatedly on his door and demanded the infant. After the husband opened the door, they pushed it open despite his attempts to close it. They left only after the husband called for the assistance of the police. Throughout this episode, the stepchildren and the infant were with the husband in the flat.

8       On 1 June 2023, the wife and her mother returned to the flat of the husband and knocked repeatedly on the door. The husband who was in the flat declined to open the door and sent a text message to the wife telling her to stop the knocking. Nevertheless, the knocking continued for 15–20 minutes. When the door remained closed, the wife and her mother left.

9       On 3 July 2023, the husband brought the infant to a polyclinic for a medical appointment. He wheeled the infant in a stroller while the stepchildren accompanied them. While they waited to be served, the wife and her mother appeared. The wife spoke with the husband, but he ignored her and instead called the police for assistance. A commotion ensued, with the wife making physical contact with two of the stepchildren. The mother of the wife took the infant from the stroller and handed the infant to the wife.

10     Since 3 July 2023, the infant had been in the care of the wife.

11     The husband brought this application on behalf of all four children, alleging that the wife had placed them in fear of hurt. He alleged that the wife had, on 31 May 2023, placed the children in fear of hurt by hitting him and damaging the doorway to the flat in the presence of the children while the children and him had been in the flat. He added that the wife had, on 3 July 2023, hit the older children while attempting to remove the infant from his care. He thus sought PPOs to protect the children from the wife.

12     The wife contended that she had been “wrongfully accused”. She stated that it was “not in [her] nature to cause, inflict or even consider hurt upon any especially not to [her] very own flesh and blood”.[note: 2] She adduced statements of support from her mother and her sister. The former stated that “for a person who has had her child taken away from her for an extended period of time without her consent, [the wife] still managed to speak diplomatically to [the husband].”[note: 3] The latter stated similarly that “for a person who has had her child taken away from her for an extended period of time without her consent, [the wife] still managed to speak in a calm and civilized manner to [the husband].”[note: 4]

13     The power of the court to grant a PPO is found in s 65(1) of the Women’s Charter 1961 (2020 Rev Ed) (the “Charter”). It reads:

Protection order

65.—(1)    The court may, upon satisfaction on a balance of probabilities that family violence has been committed or is likely to be committed against a family member and that it is necessary for the protection of the family member, make a protection order restraining the person against whom the order is made from using family violence against the family member.

14     Two conditions must thus be proven on a balance of probabilities before a PPO may be granted. First, “family violence” must have been committed or must have been likely to be committed on a family member. Second, the PPO must be necessary for the protection of that family member (UNQ v UNR [2020] SGHCF 21 (“UNQ”) at [23]–[24]).

15     As for the definition of “family violence”, s 64 of the Charter provides:

“family violence” means the commission of any of the following acts:

(a)    wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;

(b)    causing hurt to a family member by such act which is known or ought to have been known would result in hurt;

…

16     Hence, physically abusing a family member will constitute family violence where hurt (defined in s 64 of the Charter as “bodily pain, disease or infirmity”) was caused by an act that was known or ought to have been known would result in hurt. Also, acts that fall short of physical hurt but that are committed to place a family member in fear of hurt, or in an attempt to place the family member in fear of hurt, may constitute family violence if such acts are committed wilfully or knowingly (UNQ at [26]).

17     For the incident on 31 May 2023, the wife had appeared at the flat of the husband uninvited, hit him when he opened the door thereto, reached in to push the door open when he had tried to close it, and did so in the view of the four children. These contentions were supported by a police report that he had filed on the same day.[note: 5] The only response offered by the wife was that she had approached the husband “cordially, but was treated with an unwelcome reception”.[note: 6] But apparent from the contemporaneous video footage of the incident was instead the aggression of the wife, her mother, and her sister.[note: 7] Similarly, a transcript produced by the wife of the exchange between them and the husband showed them issuing their demands and threatening to call the police for assistance.[note: 8]

18     Indeed, the wife she had no basis to confront the husband at his flat on 31 May 2023. She had been fully aware that even if the husband had not complied with their arrangement on his access to the infant, her recourse lay at law and not in an extra-legal retrieval of the infant. In the letter of demand that she sent to the husband on 29 May 2023 (see [6] above), she threatened to “pursue legal remedies available to her to ensure the immediate return of the [infant] and seek appropriate legal action to protect [her] rights” [emphasis added]. Yet two days later (and merely hours after the deadline in that letter of demand for the husband to return the infant had expired), she attempted such an extra-legal retrieval. She assembled a posse of her relatives, appeared uninvited at the flat of the husband, and forced open his door when he had tried to close it. And she did these actions in the view of the children, who were in the flat, while blocking the doorway to the flat, which appeared to be their sole path of egress from the flat. With the spatial limits of the rental flat leaving little distance between her and the children, she must have known that these actions would likely place them in fear of hurt.

19     The incident on 3 July 2023 was not stated by the husband in his Complaint, the process by which he commenced these proceedings, and raised by him only at trial. Nevertheless, the wife deposed to this incident in her evidence-in-chief[note: 9] and provided an account on the events that day. I did not therefore think that admitting the evidence on this incident would take her by surprise or otherwise occasion prejudice to her. I thus allowed the husband to lead evidence on this incident.

20     The husband deposed that two of the stepchildren were hit by the wife at the polyclinic on 3 July 2023, when the wife appeared and tried to retrieve the infant.[note: 10] All three stepchildren deposed to the same: that the wife had kicked one of them on the thigh and had pushed or slapped another on the hand.[note: 11] In support of these contentions, the husband exhibited two sets of medical documents from Changi General Hospital. For the stepchild who had been kicked in the thigh, there was a diagnosis of a bruise on the thigh consistent with an “assault” and a prescription for two days of medical leave from 3 July 2023.[note: 12] For the stepchild who had been pushed or slapped on the hand, there was a prescription for three days of medical leave from 3 July 2023.[note: 13]

21     The wife initially maintained that the evidence of the stepchildren on the events of 3 July 2023 was “totally untrue”. But she subsequently suggested that any physical contact must have happened in the context of a “commotion” and amidst the “tension” that had transcended the interactions.[note: 14] By this suggestion, therefore, the wife did not deny that she had kicked and pushed or slapped the stepchildren. Moreover, it was difficult to accept that this physical contact had been accidental. The kick had been delivered at the height of the “thigh” and with such force as to produce a bruise for which two days of medical leave was prescribed for its victim. And the push or slap had necessitated three days of medical leave for its victim. This incident thus involved at least the knowing causing of hurt to the two stepchildren who had been kicked and pushed or slapped, and the knowing placing in fear of hurt of all three stepchildren. The wife had thus perpetrated family violence on all of them.

22     Although the spouses were undergoing divorce proceedings, the stepchildren would likely have further contact with the wife. This was because of their close relationship with the infant, about whom the wife felt fiercely and whose extra-legal retrieval by the wife had precipitated the unfortunate events that are the subject of these proceedings. The difficulty that the wife had in regulating her emotions around the husband and the stepchildren had left the stepchildren at risk of further family violence. Their protection thus necessitated the granting a PPO in favour of each of them.

23     For completeness, I did not think that a PPO was necessary for the protection of the infant. Any family violence by the wife on the infant had been purely tangential to that on the husband and the stepchildren. With the infant having been returned to the care of the wife since 3 July 2023, the risk of any family violence by the wife on the infant had abated.

24     Still, given the closeness between the stepchildren and the infant, it would be in the best interests of the spouses, the stepchildren, and the infant to preserve a functional relationship between the stepchildren and the wife. To that end, I directed the husband, the wife, and the stepchildren to attending counselling with the Ministry of Social and Family Development with a view to improving this relationship. I also limited the duration of the PPOs in favour of the stepchildren to a year, in the hope that by the conclusion of the counselling, the formal orders for their protection would no longer be necessary.

[note: 1]WAEIC21

[note: 2]WAEIC1

[note: 3]WAEIC6

[note: 4]WAEIC7

[note: 5]HAEIC11

[note: 6]WAEIC4

[note: 7]See video taken by H on 31 May 2023

[note: 8]WAEIC4

[note: 9]WAEIC3

[note: 10]1NE3

[note: 11]3NE3, 5, 7

[note: 12]HAEIC17–18

[note: 13]HAEIC20

[note: 14]3NE6

"}] \ No newline at end of file +[{"tags":["Family Law – Procedure – Extension of time"],"date":"2024-05-29","court":"Family Court","case-number":"Divorce No 1991 of 2024 (Summons No 1059 of 2024)","title":"WXQ v WXR","citation":"[2024] SGFC 35","url":"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%2F31583-SSP.xml","counsel":["Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff","the defendant in person and unrepresented."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXQ v WXR

WXQ v WXR
[2024] SGFC 35

Case Number:Divorce No 1991 of 2024 (Summons No 1059 of 2024)
Decision Date:29 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Yeo Poh Choo Lisa (Cecil Law LLC) for the plaintiff; the defendant in person and unrepresented.
Parties: WXQ — WXR

Family Law – Procedure – Extension of time

29 May 2024

Assistant Registrar Soh Kian Peng:

1       SUM 1059 of 2024 (“SUM 1059”) was the Husband’s application for an extension of time to file and serve his Defence and Counterclaim.

2       I heard and granted the application on 27 May 2024. I now set out my grounds of decision.

3       The writ was served on the Husband on 7 May 2024. The Husband filed his memorandum of appearance on 10 May 2024. According to the Family Justice Rules 2014, a defendant who has filed a memorandum of appearance must file a defence within 14 days after the expiry of time limited for the filing of the memorandum of appearance. This meant that the Husband had to file his Defence and Counterclaim by 29 May 2024.

4       The Husband, however, had applied for legal aid. He had exhibited, in his affidavit filed in support of SUM 1059, an email from the Legal Aid Bureau, acknowledging that his application for legal aid on 13 May 2024, and giving him an appointment for means testing on 20 May 2024.[note: 1]

5       Because the Husband had applied for legal aid, s 17 of the Legal Aid and Advice Act 1995 (2020 Rev Ed) (“LAA”) was relevant. That provision states:

Stay of proceedings upon making of application for legal aid

17.—(1)    Where proceedings have been commenced and any party makes an application for legal aid, the Director must, as soon as practicable after the application is made, notify the other party or each of the other parties, and file with the court in which the proceedings are pending, a notification of the making of the application; and no fee is to be payable in respect of the filing of the notification.

(2)     Where a notification under subsection (1) is filed in respect of any proceedings, the following apply unless the court (before which those proceedings are pending) orders otherwise:

(a)     all steps in those proceedings are stayed for a period of 14 days after the date on which the notification is filed;

(b)     during that period, the time fixed by or under any written law, for doing any act or taking any step in those proceedings, does not run.

(3)    Despite subsection (2), the filing of the notification under subsection (1) does not prevent any of the following:

(a)    the making of an interlocutory order for an injunction, or for the appointment of a receiver, a manager or a receiver and manager;

(b)    the making of an order to prevent the lapse of a caveat against dealings with land;

(c)    the making of any other order which, in the opinion of the court, is necessary to prevent an irremediable injustice;

(d)    the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect an order mentioned in paragraph (a), (b) or (c), unless the court orders otherwise.

(4)     The period mentioned in subsection (2)(a) may be reduced or extended by an order of the court.

[emphasis added]

6       The purpose of s 17 of the LAA may be gleaned from the Second Reading of the Legal Aid and Advice (Amendment) Bill. As the Senior Minister of State for Law, Mr Edwin Tong had explained (Singapore Parliamentary Debates, Official Report (19 November 2018) vol 94):

I would also like to assure the Member that where an applicant requires aid as a matter of urgency, for example, when an appeal is due to be filed, the Director may issue a Grant of Aid on a provisional basis, if the Director is of the view that the applicant is likely to satisfy the means test and is likely to have a reasonable ground for appealing against the decision.

This Grant is typically valid for a period of three months and can be further extended if necessary. Under the Provisional Grant of Aid, the Bureau may assist the aided person with the filing of the Notice of Appeal. In addition, the Director can also issue a notification under section 17 of the Legal Aid and Advice Act to stay the proceedings for a period of 14 days, whilst this is being done.

[emphasis added]

7       The purpose of s 17 of the LAA is to ensure that the person who has applied for legal aid whilst there are pending proceedings, is not prejudiced by his application for legal aid. The stay of proceedings effectively ensures that the applicant for legal aid can still comply with the procedural timelines, such as the filing of a notice of appeal, whilst his application for legal aid is being processed.

8       In the present case, although the Husband had applied for legal aid on 13 May 2024, when the matter came up before me for hearing, no notification had been filed.

9       This presented a problem. This stemmed from the fact that the stay under s 17 of the LAA would only take effect when the requisite notification had been filed with the court. Therefore, the crucial event was when that notification was filed. It bears emphasising that s 17 LAA only stipulates that the Director of Legal Aid is to file the notification as soon as practicable – the provision does not set out a deadline by which this must be done.

10     Two scenarios presented themselves. If the Director of Legal Aid filed the notification by the 29th of March, which was the deadline for the Husband to file his Defence and Counterclaim, all would be well. The Husband would have an extension of 2 weeks, and this stay could be further extended by an order of court: s 17(4) of the LAA.

11     However, if the notification was filed after the 29th of May, the stay would not operate because the Husband would be out of time insofar as the deadlines for him to file and serve his Defence and Counterclaim was concerned. In other words, there was nothing on which the stay under s 17 of the LAA would operate.

12     There was, therefore, some logic to the Husband’s application – one might say he was acting ex abundanti cautela – after all, he did not know when the Director of Legal Aid would file the notification set out in s 17 LAA, or whether he would even be granted legal aid.

13     In the circumstances, I was satisfied that an extension of time, pursuant to Rule 15 of the Family Justice Rules 2014, should be granted. In granting this extension of time, I was also mindful that the Director of Legal Aid could file the notification after I had made the order and the effect this would have pursuant to s 17 of the LAA.

14     I therefore ordered that:

(a)     The Husband be granted an extension of time to file his Defence and Counterclaim for:

(i)       2 weeks till 10 June 2024; or

(ii)       To the date that the Director of Legal Aid files the Certificate under s 17 of the Legal Aid and Advice Act,

whichever was earlier; and

(b)     That the Husband shall have liberty to apply.

[note: 1]Husband’s Affidavit filed in support of SUM 1059 of 2024.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories","Civil Procedure – Interrogatories – Sufficiency of Answer"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce No 4868 of 2022 (Summons No 1012 of 2024)","title":"WXG v WXH","citation":"[2024] SGFC 32","url":"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%2F31582-SSP.xml","counsel":["Tang King Kai (Tang & Partners) for the plaintiff","Ng Wen Wen (Grace Law LLC) for the defendant."],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXG v WXH

WXG v WXH
[2024] SGFC 32

Case Number:Divorce No 4868 of 2022 (Summons No 1012 of 2024)
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant.
Parties: WXG — WXH

Civil Procedure – Discovery

Civil Procedure – Interrogatories

Civil Procedure – Interrogatories – Sufficiency of Answer

27 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties registered their marriage on 19 March 1998. A year later, they welcomed their son into the family. By all accounts, based on the Statement of Particulars (“SOP”) and the affidavits before me, it was a happy marriage.

2       This state of affairs, unfortunately, did not last. When the son was 18, he was taken ill. It was not a physical ailment from which he suffered, but one of the mind. It appears that the Wife did the best she could to support her son. Doctors were consulted, and treatment was sought. The Husband, on the other hand, appeared to have difficulty coming to terms with his son’s illness. As to why the Husband reacted in the way he did, we do not know – though the Wife’s Affidavit of Means and Assets (“AOM”) provides some clues. The Husband has, in any case, made no mention of this in any of his affidavits.

3       What we do know is that the relationship between Husband and Wife deteriorated to the point that the Husband filed for divorce on 19 October 2022. Interim judgment was obtained on 16 August 2023. Mediation was attempted but bore no fruit. This set parties on course for an ancillary matters hearing.

4       The next stage in this process was the exchange of parties’ affidavits of assets and means (“AOMs”). The Wife, being dissatisfied with the extent of the Husband’s disclosure, filed an application for discovery and interrogatories in SUM 1012 of 2024 (“SUM 1012”).

5       I heard oral submissions from parties on 20 May 2024. I now give my decision in respect of SUM 1012.

Wife’s Request for Interrogatories

6       This was the interrogatory that had been posed by the Wife:

The Plaintiff is to account for the sum of $55,224.53 parties had in a fixed deposit account number x-x-xxx-xxxxxxxxx-4-702 under Hong Leong Bank. This sum was withdrawn by the Plaintiff upon the maturity of the fixed deposit in July 2022, without the Defendant’s knowledge.

7       Counsel for the Husband, Mr Tang, argued that the Husband had already answered this question. This was the Husband’s reply to the interrogatory in his Notice-in-Response:

The Plaintiff says that he has no account with Hong Leong Bank and he is not aware of the alleged fixed deposit of $55,224.53 purportedly in his name. This is a frivolous and mischievous allegation and the Defendant is put to strict proof thereof.

8       In response, counsel for the Wife, Ms Ng, argued that the Husband’s response was inadequate. She said that the Husband was feigning ignorance – given that this was a recent transaction, there was no reason why he could not recall it.

9       In considering the Wife’s application for interrogatories, I am only concerned with the sufficiency, and not the truth of the response provided by the Husband. Although Ms Ng appeared to be contesting the truth of the response, I understood her point to be that the response given by the Husband, which could be characterised as a general denial, to be an insufficient answer to the interrogatory posed. Ms Ng confirmed that this was indeed her argument.

10     As to whether the Husband’s response was sufficient, the case of Earp v Lloyd [1858] 70 ER 24 (“Earp”) is instructive. The court in that case had noted:

The rule has always been that, where there is a specific averment, an interrogatory founded upon that specific averment must be specifically answered; a general denial is not a sufficient answer to a specific averment.

[emphasis added]

11     In Earp, the averment was that land was to be conveyed to one Smith. The interrogatory was whether “such land was not conveyed to one Smith, or to some and what person or persons”. The answer which the plaintiff had given was that he “could not set forth whether the property was conveyed to Smith or to any person or persons”. The court ruled that this answer was insufficient.

12     In the present case, the Wife has asked the Husband to account for the sum of $55,224.53 that had been placed in a fixed deposit with Hin Leong bank. She had stated, specifically, in her AOM, that the Husband had withdrawn this sum.[note: 1] She had even referred him to a statement of said fixed deposit from Hin Leong bank. That statement showed that the fixed deposit had also been placed in the Husband’s name.

13     I find that the Husband’s response is indeed insufficient. The Wife had asked him a question that was founded on a specific averment in her AOM. Given this, it does not suffice for the Husband to simply respond with a bare denial that he had no account with Hin Leong, and that he is not aware of a fixed deposit for $55,224.53 that was allegedly in his name.

14     I will therefore order that the Husband answer this interrogatory.

Wife’s Request for Discovery

15     I come now to the Wife’s request for Discovery. There were 12 items on the list. They could be categorised into the following two groups:

(a)     Full monthly statements of accounts in respect of each of the six bank accounts in the Husband’s name (Items 1 – 6) for the period 1 January 2021 – 31 January 2024;

(b)     Documents evidencing account closure in respect of each of the same six bank accounts in the Husband’s name (Items 7 – 12).

16     Ms Ng argued, both at the hearing and in her well-written skeletal submissions, that disclosure of these documents were relevant and necessary for the hearing of the ancillary matter because it appeared that the Husband had taken steps to dissipate assets that should rightfully belong to the matrimonial pool.[note: 2] This is, according to Ms Ng, evident from the fact that all six accounts were closed over the span of a few months, in the time leading up to and shortly after the entering of the interim judgment.[note: 3] The Wife would need these documents to determine exactly when these six accounts had been closed, and whether the Husband had indeed dissipated the money in these accounts, and if so, where the money had been transferred to.

17     In response, Mr Tang argued that the Husband had already made voluntary disclosure of the account balances in these six accounts.[note: 4] In any event, the Husband had already stated, in his Notice in Response to the Wife’s 2nd Request for Discovery (“NIR”), that he did not have, in his possession, the final statement in respect of these six accounts as he did not expect the Wife to ask for these documents, and in any case, the account had already been closed.[note: 5]

18     I understood Mr Tang to be making the point that I could not make an order for the discovery of the bank account statements because those documents did not exist. It is true that “a prerequisite to the court’s power to order discovery is that there must be some [prima facie] evidence that the document requested is or has at any time been in the respondent’s possession, custody or power”: VTQ v VTR [2021] SGFC 85 at [64] citing Alliance Management SA v Pendleton Lane P and another and another suit [2007] SGHC 133 (at [24]).

19     I am satisfied that there was such prima facie evidence. After all, it is not disputed that these six accounts were in the Husband’s name. And if the Husband had these accounts, it also stands to reason that the banks would have provided these statements. There was, in any event, nothing in the Husband’s reply affidavit, or the NIR, denying the existence of these documents.

20     Insofar as the principles relating to discovery are concerned, it is trite law that an order for discovery should only be made if the documents sought are relevant and necessary to the disposal of the ancillary matters: UJN v UJO [2018] SGFC 47 at [10] citing Rules 63 – 77 of the Family Justice Rules 2014.

21     There can, in my judgment, be no quarrel that the account statements (ie, Items 1 – 6) which the Wife sought were indeed relevant and necessary to the disposal of ancillary matters. If the Husband had withdrawn or transferred money from any of those six accounts, it would be reflected in the account statements.

22     However, I did not find that the request for the documents evidencing account closure was relevant or necessary. What the Wife was really after were the account statements – she wanted to know what had happened to the money in those six accounts. If the Husband’s position was that he had closed the accounts, and therefore could not provide the account statements, that was for him to show by way of documentary evidence that the accounts had indeed been closed.

23     I will therefore allow the request in respect of Items 1 – 6, and disallow the request in respect of Items 7 – 12.

Conclusion

24     It is therefore ordered that:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 1 – 6 of Schedule 1 annexed to SUM 1012/2024, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Husband shall answer the interrogatory as set out in Schedule 2 annexed to SUM 1012/2024 on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

25     The Husband is to file his compliance affidavits by 18 June 2024.

26     Parties are to file and serve their costs submissions by way of letter by 12 June. The submissions should be no longer than 5 pages each.

27     It remains for me to thank both Mr Tang and Ms Ng for their able assistance.

[note: 1]Wife’s AOM at para 26(h).

[note: 2]Wife’s Skeletal Submissions in support of SUM 1012 at paras 18 – 22.

[note: 3]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

[note: 4]Husband’s Affidavit in response to SUM 1012, Exhibit A.

[note: 5]Wife’s Affidavit in support of SUM 1012 at pp 69 – 72.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-05-24","court":"Family Court","case-number":"Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)","title":"WXI v WXJ","citation":"[2024] SGFC 31","url":"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%2F31581-SSP.xml","counsel":["Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff","the defendant in person and unrepresented"],"timestamp":"2024-06-05T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WXI v WXJ

WXI v WXJ
[2024] SGFC 31

Case Number:Divorce No 5944 of 2022 (Summons No 975 and 1283 of 2024)
Decision Date:24 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Seetha Lkshmi P.S. Krrishnan (East Asia Law Corporation) for the plaintiff; the defendant in person and unrepresented
Parties: WXI — WXJ

Civil Procedure – Discovery

Civil Procedure – Interrogatories

24 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Parties were married in India in 2001. In the same year, they made their way to Singapore. During this time, they welcomed a son and a daughter into their family. Sometime in 2010, parties returned to India. Five years later, the Wife returned to Singapore. She did so to help the family maintain the matrimonial home – a HDB flat which they had bought early in their marriage. The son also returned to Singapore sometime in October 2022 to enlist for National Service.

2       As to how the relationship between Husband and Wife broke down, details are provided in the Statement of Particulars. In essence, the Wife felt that the Husband had not supported her in their marriage. This caused her an undue amount of stress as she had to look after the family finances.[note: 1] On the emotional front, the Wife felt that the Husband was indifferent to her emotional needs and that she was living in an “empty shell marriage”.[note: 2]

3       Unable to tolerate this state of affairs any longer, the Wife filed for divorce on 22 December 2022. Interim judgment was obtained on 31 August 2023. Parties subsequently set course for a hearing of the ancillary matters. In preparation for that hearing, they exchanged their respective affidavits of assets and means. Evidently, both were dissatisfied with the extent of disclosure that had been provided.

4       This thus spawned the two applications that came before me. SUM 975/2024 (“SUM 975”) was the Wife’s application for discovery. SUM 1283/2024 (“SUM 1283”) was the Husband’s application for discovery and interrogatories. I heard both applications on 17 May 2024.

5       This is my decision in respect of SUM 975 and SUM 1283.

Wife’s Application for Discovery (“SUM 975”)

6       At the hearing, counsel for the Wife, Ms Seetha, confirmed that she would not be proceeding in respect of Items 1, 6, 7, 8, 10, and 11 of Annex A to SUM 975. I will therefore deal with the rest of the items on that list. In doing so, I bear in mind the guiding principle that discovery should only be ordered if the document sought is relevant, and necessary for the disposal of the ancillary matters or for saving costs: UJN v UJO [2018] SGFC 47 (“UJN”) at [10]; Rules 63 – 77 of the Family Justice Rules 2014.

7       I will first deal with the Wife’s request for various statements of the Husband’s CPF account. These were the relevant items:

(a)     Item 2: the Husband’s CPF transactions and contribution statements for 2020 – 2023.

(b)     Item 3: the Husband’s current CPF investment statement.

(c)     Item 5: the Husband’s CPF account statement as of November 2023.

8       Ms Seetha says that these statements are relevant and necessary towards determining the matrimonial pool of assets. The CPF statements would also enable the Wife to ascertain the Husband’s income. The Husband’s response was that he had produced these statements in his response to the Wife’s request for discovery.[note: 3] The Husband also stated that he was, in any case, ready to provide these documents should the court order it.

9       I will allow the request in respect of Items 2, 3 and 5. I find that the CPF statements are indeed relevant and necessary for the hearing of ancillary matters. It would shed light on the Husband’s income, and also be useful for ascertaining the matrimonial pool of assets.

10     Item 4 was a request for the Husband to produce statements for his bank accounts with DBS and City Union Bank for the period December 2022 to November 2023. Ms Seetha argued that these documents were relevant and necessary for the ancillary hearing as they would shed light on the Husband’s assets. In response, the Husband stated that he was willing to provide the documents to the court, but he did not want the Wife to have sight of it. He explained that there were transactions in those documents that could affect his reputation. He did not want the children to be affected.

11     I will allow the Wife’s request in respect of Item 4. The documents sought were clearly relevant and necessary for the disposal of ancillary matters. These documents would shed light on the financial status of the Husband in the period following the filing of the divorce. That the Husband did not want the Wife having sight of the bank statements is not a basis for refusing disclosure. I would, however, add that while I have ordered that the Husband disclose these documents, they are only to be used for the purposes of the ancillary matters hearing.

12     Item 9 was a request for the Husband to produce documents on the alleged claims of two creditors, one Mr J and Swift Credit. Ms Seetha explained that they were requesting for these documents as the copies which the Husband had provided were illegible. These documents, according to Ms Seetha, were relevant for the hearing of ancillary matters in that they would establish the Husband’s direct and indirect contributions and show whether there had been any dissipation of matrimonial assets.

13     The Husband’s response was that because the documents he had provided was in the Wife’s handwriting, she should be able to decipher what had been written.

14     I disallow this request. As I had pointed out to Ms Seetha during the hearing – if the Husband sought to rely on these documents to establish his financial contributions, he bore the onus of proving it and producing the necessary documentary evidence to that effect. In any event, I was not satisfied as to the relevancy of these documents – it would only show the extent of the obligations as between the Husband and his creditors, but it would not show how the proceeds from these loans had been used.

15     Item 12 related to mortgage loan statements from HDFC Bank India (“HDFC”) for the matrimonial property in India from 2017 – 2023. Ms Seetha explained that these documents were necessary to confirm that the Husband had indeed contributed to the matrimonial property in India. In response, the Husband argued that because the Wife was also a party to the mortgage that had been taken out, she too was in a position to ask for these documents. The Husband further stated that the bank would only provide a yearly statement, and that he had already provided this.

16     I will disallow the request in respect of Item 12. Similarly, if it is the Husband’s case that he had contributed to the acquisition of the matrimonial property in India by way of repaying the mortgage, then it was for him to put forward those documents in evidence.

Husband’s Application for Discovery and Interrogatories (“SUM 1283”)

17     I turn now to the Husband’s request for discovery and interrogatories. During the hearing, the Husband confirmed that he would not be proceeding in respect of the following:

(a)     Discovery: Items 1, 3, 4, 7, 13, 14, 15, 18, 20, and 22.

(b)     Interrogatories: Items 1, and 5.

I will deal with the rest of the items that had been proceeded with, beginning with the Husband’s request for interrogatories.

Interrogatories

18     I note, at the outset, that the Husband had failed to, in SUM 1283, include the relevant prayers. He had only annexed the list of interrogatories that he sought to SUM 1283. Ms Seetha, however, raised no objections on this ground. She dealt with the Husband’s application on its substance. She had also put in written submissions to respond to the Husband’s request for interrogatories.

19     It must be noted that the Husband is self-represented. While Rule 69(6) of the Family Justice Rules 2014 stipulates that an application for interrogatories for interrogatories to be answered must be made by way of summons in the relevant Form, I do not think the Husband should, in this case, be penalised for his non-compliance.

20     I will therefore deal with his application for interrogatories as had been argued before me.

21     In deciding whether interrogatories should be ordered, I must look at the sufficiency of the Wife’s answers. In other words, I must be satisfied that she has answered the interrogatories that the Husband had posed to her. The truth of the answers is not ascertained at this stage of proceedings. If the Husband says that the Wife’s answers are not true, that is for him to raise at the ancillary hearing. I also bear in mind the principle that the interrogatory posed must be relevant and necessary for the disposal of ancillary matters (see UJN at [10] and [12]).

22     I start with Item 2. The Husband had asked the Wife to provide a breakdown of her monthly loan repayments. This was the Wife’s response:

“This is just a rough figure. The Plaintiff has to pay to five different credit facilities. The amount varies with each bank every month”.

23     This is not a sufficient answer. The question specifically asks for a breakdown of the Wife’s monthly loan repayments. The Wife has side-stepped the question. She has not given a breakdown of her monthly loan repayments. She has only disclosed her obligation to pay five different credit facilities every month without setting out the details of the amounts she is paying. I will therefore allow the request in respect of Item 2.

24     The interrogatory posed in Item 3 asked the Wife to state her monthly income from the time parties were married in 2001 to date.

25     I disallow the request in respect of this item. The Wife has, in her response, stated her monthly salary from the time parties were married to date.[note: 4] Her answer to the interrogatory posed is sufficient. It appeared to me that the Husband was disputing the sums that the Wife had declared – his point was that the Wife had, in her response, under-declared her monthly salary. However, as I have already mentioned, if there is any dispute as to the truth of the answer to an interrogatory, that is to be raised at the hearing of ancillary matters.

26     Item 4 required the Wife to confirm that she had the Husband’s ATM card for his POSB account in her possession, and that she had full access to the said account from the period between June 2017 to August 2019.

27     The Husband explained that he had deposited money into his POSB account whilst he was working in India. However, the money had, according to his bank statements, been withdrawn from an ATM near to the matrimonial home. In short – he suspected the Wife of taking withdrawing the money which he had deposited into this account.

28     I will allow the request in respect of Item 4. I am satisfied that it is relevant and necessary for the disposal of ancillary matters given the Husband’s allegation that the Wife had taken the money, which were the fruits of his labour. Further, the Wife’s response is also insufficient. She had given a bare denial that she does not have possession of the Husband’s ATM card. But there is another part to the interrogatory – that is whether she had full access to the said account from June 2017 to August 2019. The Wife has not given an answer to this.

Discovery

29     I turn now to the Husband’s request for discovery.

30     Item 2 was for documents evidencing cash payments made by the Wife towards the HDB flat from 1 August 2004 – 2010. The Husband argued that proof of the bank statements was necessary to confirm that the Wife had indeed made the cash payments which she claimed she had made.

31     In response, Ms Seetha said that the Wife had already disclosed the documents which the Husband sought in her 1st AOM.

32     I disallow the request. In considering an application for discovery, I must also consider the prejudice that is likely to be caused to the other party if an order to produce documents is made: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26(a)]. The documents sought went back to transactions that had taken place from 2004 to 2010. The Wife would face considerable difficulties in attempting to obtain these documents. In any event, the point of discovery is to ensure that the judge has all the relevant material for the disposal of the case. It is not meant to allow parties disprove assertions made by the other party by demanding documentary evidence.

33     I turn now to Item 5. The Wife had claimed that she had borrowed money from debtors to pay for the matrimonial home in India as well as legal fees for the divorce. According to the Wife, her sister had helped her repay this sum. She thus took out a loan from Standard Chartered Bank to repay her sister.[note: 5] Item 5 was a request for documents supporting the Wife’s claim concerning this loan. The Husband essentially wanted documents proving that the Wife had taken out a loan with Standard Chartered, and that that sum of money had indeed been used to repay her sister. He said that it was necessary for the Wife to provide proof that the money had indeed been transferred to her sister’s account.

34     Again, Ms Seetha said that the documents the Husband was asking for had already been disclosed.[note: 6]

35     Having had sight of the documents which Ms Seetha had referred me to, I note that the manner in which they had been presented was less than ideal. There were some 20 pages worth of what appeared to be receipts from HDFC bank disclosed in the Wife’s 1st AOM. Some of these receipts, the contents of which were handwritten, were barely legible. It did not help that the scanned images were grainy, and in some cases, blurred. As to what these receipts were, and what they were meant to show – the brief explanation provided in the Wife’s NIR was inadequate.[note: 7] It did not help that there was no explanation accompanying these receipts to provide some context, nor was there any pinpoint reference to these exhibits in the Wife’s 1st AOM.

36     As for the Husband’s request in respect of Item 5, that is disallowed. It is for the Wife to adduce evidence to support her assertion that she had borrowed money from her sister and that those sums were applied to the matrimonial home in India.

37     I come now to Item 6. These were documents evidencing that the sum of $9303.15 incurred on the HSBC credit card had been used for family expenses. The Husband explained that the statements were necessary because the Wife had stated, in her 1st AOM, that she had spent the sum of $9303.15 on her credit card.

38     Ms Seetha said that enquiries had been made with the bank and the Wife was informed that the statements which the Husband sought could not be obtained.

39     I will allow the request in respect of Item 6. Although the request could have been better framed, I am satisfied that these documents are indeed relevant to the disposal of ancillary matters in that they would shed light on the family’s expenditure as well as the Wife’s financial contributions. The Wife should, if she is indeed unable to obtain these statements from HSBC, exhibit documents (ie, a letter from the bank), evidencing the same.

40     Next on the list was Item 8. The Wife had taken out a loan with Maybank for the sum of $5000 to redeem her mother’s jewellery that had been pawned to support family expenses. Item 8 was the Husband’s request for documents to prove that such a loan had been taken out with Maybank and that the jewellery had indeed been redeemed.

41     The Husband said disclosure was necessary because the Wife alleged that she had transferred money to her sister’s account, but there was no proof of such transfers. Ms Seetha, on the other hand, urged me not to allow the Husband’s request as the Wife had already disclosed the relevant documents in her reply affidavit to this summons.

42     I disallow the request in respect of Item 8. Whether the Wife could prove that she had taken a loan from her sister was a matter for submissions at the ancillary hearing. It was not a basis on which discovery could be pursued.

43     That said, I do note that the Wife has disclosed some documents. The first, was a POSB bank statement. The second, was a deposit slip.[note: 8] While there is an explanation as to what the POSB statement was supposed to reflect, no such explanation was provided for the deposit slip. Apart from these documents, reference was also made to the 20 pages worth of receipts that I have described above (at [32]). As I have already mentioned (above at [32]), if the Wife intends to rely on these documents, they must be neatly organised, and where necessary, an explanation to provide context should be included.

44     Items 9 and 10 related to the Husband’s request for documentary evidence to support the Wife’s claim that she had received the sum of $25,000 and $5000 from pawning her wedding jewellery, and that these sums had been used for the downpayment of the HDB flat.

45     The Husband’s contention is that based on the gold prices then, it was simply inconceivable that the Wife had been able to receive those sums of cash. He therefore needed the documents to establish that the Wife had indeed obtained this sum of money which allegedly went towards the downpayment of the HDB flat.

46     I disallow the request for Items 9 and 10. The jewellery had been pawned more than 20 years ago. It would be difficult, if not impossible, to track down, and obtain such documents given the time that had passed. The extent of discovery that can be ordered is necessarily circumscribed by the practicality of obtaining the documents.

47     Item 11 was the Husband’s request for documentary evidence that the Wife had repaid the sum of $19,806.85 towards renovation of the HDB flat. The Husband explained that these documents were necessary to prove that the Wife had indeed paid off this sum.

48     I disallow the request in respect of Item 11. The Wife had already disclosed the relevant documents. This document which the Wife produced was a letter from Tan Kok Quan partnership, on behalf of the creditor bank, which was addressed to the Wife. Its contents are clear. It shows how the renovation loan had been paid off.[note: 9]

49     Item 12 was a request for documentary evidence that the Wife had taken a loan of $20,000 from her sister. The Husband explained that there was no proof of this loan.

50     I disallow the request in respect of Item 12. The Wife had stated, in her 1st AOM, that she borrowed money from her sister to pay off the India housing loan of $20,000.[note: 10] Again, it is for her to provide the necessary evidence in support of her assertion.

51     I will deal with the next two items together. Item 16 was a request for documents to support the Wife’s claim that she had given the Husband $7000 towards the discharge of his bankruptcy. Item 17 was a request for documents to support the Wife’s claim that the alleged sum of $7000 which she had given to the Husband was used by him to pay off the mortgage on the Indian matrimonial home.

52     These two items are related because the Wife had stated, in her 1st AOM, that she had borrowed $7000 from the Husband’s friend. She had tried to use this amount in an attempt to discharge the Husband from bankruptcy. The Public Trustee refused to accept this payment, and refunded the money. The Wife subsequently channelled this sum to the Husband who used it for the Indian matrimonial home.

53     The Husband has asked for these documents because he says he cannot accept the Wife’s version of events – he wants her to prove her assertions by producing documentary evidence.

54     While it is true that he or she who asserts must prove their case, that is a matter to be properly pursued at the ancillary hearing. The Husband had been reminded of this at a case conference prior to this hearing.

55     I therefore disallow the request in respect of Items 16 and 17.

56     The next few items can also be dealt with together:

(a)     Item 19 was a request for documents to show that the Wife had paid around $20,000 towards the family’s expenses. The Wife had stated, in her 1st AOM, that she had spent this money on the family’s trip to Singapore in 2015.

(b)     Item 21 was a request for documents showing that the Wife had paid the maid levy since 2007.

(c)     Item 23 was a request for documents evidencing the Wife’s sale of her land in India and the sums received from this sale, as well as documents showing that these sale proceeds had indeed been used to redeem the Wife’s bridal jewellery.

57     The common thread binding these three items is that whether the Wife had put forth evidence in support of her claims is, once again, a matter for submissions at the ancillary hearing. The discovery process is not a forum for one to challenge assertions or claims made by the other side by demanding that they provide documentary evidence.

58     I therefore disallow the request in respect of Item 19, 21, and 23.

59     I come now to the final item on the list: Item 24. This was a request for bank account statements for the POSB account ending 8410 for the period June 2017 to August 2019. It mirrored the Husband’s request for interrogatories (see [23] – [25] above).

60     I will allow the request. I am satisfied as to the relevancy and necessity of the document sought. The nub of the Husband’s contention was that the Wife had deposited the money withdrawn from his POSB account into her own account (ending 8410). These bank statements were therefore relevant and necessary to allow the Husband to trace the sums that had been withdrawn from his account.

Orders Made

61     I make the following orders in respect of SUM 975:

(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 2, 3, 4, and 5 of Schedule A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it;

(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).

62     As for SUM 1283, I make the following orders:

(a)     The Wife shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in S/N 6 and 24 of the Request for Discovery annexed to this summons, whether the same is in her possession, custody or power, and if not then in her possession, custody or power, when she parted with it and what has become of it;

(b)     The Wife shall exhibit, in the affidavit, a copy of each of the documents that are in her possession, custody or power. If any of the documents are not in her custody, power or possession, she is to state the reasons why, together with supporting documentation for his explanation (if any).

(c)     The Wife shall answer the interrogatories as set out in Item 2, and 4 of the Request for Interrogatories annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

63     In addition to the above orders, I also order that compliance affidavits are to be filed by 21 June 2024.

64     As for costs, the Husband argued that he should be entitled to costs in respect of SUM 975 as well as SUM 1283. Ms Seetha on the other hand, said that she would leave the matter of costs to the court but highlighted the Husband’s conduct, in particular, the manner in which he had framed his requests.

65     These are the applicable principles relating to costs. They can be found in Rules 852 and 854 of the Family Justice Rules 2014. Costs are in the discretion of the court. If the court sees fit to order costs, the starting point is that costs follow the event. The court, however, can depart from this starting point, taking into account, amongst other things, the conduct of parties.

66     Apart from Rules 852 and 854, Rule 870 of the FJR 2014 is also relevant because the Husband is a self-represented person. Rule 870 provides that the court has the discretion to allow costs for a self-represented person that would be reasonable compensation for the time expended by him, together with all the expenses reasonably incurred: see VTQ at [81].

67     In respect of SUM 975, the Wife has substantially succeeded in her application. I also took into account the fact that the matter was not particularly complex. Costs are therefore fixed at $400 (all-in), to be paid by the Husband to the Wife.

68     As for SUM 1283, the Husband did not substantially succeed in his application. The matter was not particularly complex though I note that the Husband had sought both disclosure in respect of a number of documents as well as interrogatories. In the circumstances, costs are fixed at $450 (all-in) to be paid by the Husband to the Wife.

Conclusion

69     I conclude with one observation. The whole point of the discovery process is to ensure that all the necessary evidence relevant to the disposal of ancillary matters is before the judge hearing the matter: VTQ at [79]. The corollary of this is that these documents should be neatly organised and presented. If there are references to the documents in the affidavits or in submissions, pinpoint references should, as far as possible, be provided. If scanned copies of documents are provided, the onus is on parties to ensure that the images are clear, and that any handwriting is legible (see Practice Directions 110 and 112 of the Family Justice Courts Practice Directions). If the documents are in a foreign language, a certified translation must be provided. Parties do themselves no favours if they do not, at least, make an attempt to properly organise and present the documents on which they are seeking to rely.

[note: 1]Statement of Particulars (Amendment No. 1) at para 1(c).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1(h).

[note: 3]Wife’s Affidavit in support of SUM 975 at p 30.

[note: 4]Wife’s affidavit in reply to SUM 1283 at pp 81 – 82.

[note: 5]Wife’s 1st AOM at para 14(a).

[note: 6]Wife’s Reply affidavit to SUM 1283 at pp 28 – 29; Wife’s 1st AOM at pp 185 – 205.

[note: 7]Wife’s Reply affidavit to SUM 1283 at p 29.

[note: 8]Wife’s Reply Affidavit to SUM 1283 at Annex D.

[note: 9]Wife’s 1st AOM at p 72.

[note: 10]Wife’s 1st AOM at para 17(i)(1).

"},{"tags":["Family Law – Children – Variation of care and control","Family Law – Children – Variation of maintenance"],"date":"2024-05-28","court":"Family Court","case-number":"D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)","title":"WWA v WWB","citation":"[2024] SGFC 33","url":"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%2F31572-SSP.xml","counsel":["Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff","Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant."],"timestamp":"2024-06-03T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWA v WWB

WWA v WWB
[2024] SGFC 33

Case Number:D 4396/2019 (FC/SUM 1409/2023 and FC/SUM 2728/2023)
Decision Date:28 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Ms Bernice Loo Ming Nee and Ms Sophia Rossman (Allen & Gledhill LLP) for the plaintiff; Ms Nur Amalina Binte Kamal (IKA Law LLC) for the defendant.
Parties: WWA — WWB

Family Law – Children – Variation of care and control

Family Law – Children – Variation of maintenance

28 May 2024

District Judge Chia Wee Kiat:

1       In this decision, the Plaintiff shall be referred to as the “Mother” and the Defendant shall be referred to as the “Father”.

2       The parties were married on 7 June 2007.[note: 1] They have two children of the marriage, [H][note: 2] and [C][note: 3], aged 12 and 11 respectively. The parties and the children are all US citizens and Singapore Permanent Residents.[note: 4] The parties have been living and working in Singapore since June 2009, while the children were both born and raised in Singapore.[note: 5] The Mother is currently unemployed[note: 6] while the Father works as a Global Head of Enterprise Sales at a school.[note: 7] The children attend an international school in Singapore.[note: 8]

3       On 10 September 2019, the Mother commenced divorce proceedings.[note: 9] Interim Judgment was granted on 3 March 2020 with a consent order on all the ancillary issues.[note: 10] Pursuant to the consent order, the parties have joint custody of the children with care and control to the Mother and access to the Father.[note: 11] The consent order also provided, among other matters, that the Father shall pay the Mother monthly maintenance for the two children at $8,500 a month.[note: 12] Specifically, clause 3(e) of the Interim Judgment states as follows:

The Defendant shall pay the Plaintiff monthly maintenance for the 2 children at S$8,500 per month to be paid on the first day of every month by depositing this sum into her account at DBS with effect from the first of March. Prior to the commencement of the maintenance payment, status quo on financial provision shall continue until 29 February 2020. In addition, the Defendant shall provide medical insurance for the children and will bear the children’s medical and dental expenses to a maximum amount of S$20,000 a year. Non-insurable medical expenses above this amount of $20,000 shall be shared equally between parties. In addition, the children’s 529 college savings accounts shall be jointly managed by both the Plaintiff and the Defendant for the children’s benefit and welfare.

4       On 3 June 2020, Final Judgment was issued.[note: 13]

5       On 3 May 2023, the Father filed a variation application vide FC/SUM 1409/2023 (“SUM 1409”)[note: 14] to reverse care and control of the children to him and consequently for the Mother to pay the Father reasonable maintenance for the children.

6       On 30 August 2023, the Mother filed a cross application vide FC/SUM 2728 (“SUM 2728”)[note: 15] to increase the monthly maintenance for the children from S$8,500 to S$21,000 per month.

7       At the hearing on 8 November 2023, I called for a Custody Evaluation Report (“CER”) and reserved my decision. On 1 April 2024, having received and considered the CER, and having also given careful consideration to the parties’ submissions and affidavits, I made the following orders:

(a)     The parents shall have joint custody and shared care and control of the children.

(b)     The Father shall have care and control of the children from Thursday after school to Sunday 12pm.

(c)     The Mother shall have care and control of the children from Sunday 12pm to Thursday after school.

(d)     School holidays shall be split equally between the parents with such arrangements to be mutually agreed. The parents shall ensure that the children are accompanied by a domestic helper or a trusted adult who is familiar with the children while the children are in their respective care during the holidays.

(e)     The parents are at liberty to travel overseas with the children subject to giving the other party at least one month's notice of the duration of travel, itinerary of travel, including flight details, accommodation address and emergency contact details. The notice period may be shortened by consent of the parties. The Mother shall hand over the children's passports to the Father at least two weeks before his intended overseas travels with the children, and the Father shall return the children's passports back to the Mother within 48 hours of return to Singapore.

(f)     The parents may mutually agree to vary the care arrangements.

(g)     The maintenance for the two children at S$8,500 per month payable by the Father to the Mother is to remain.

8       On 15 April 2024, the Father filed a Notice of Appeal vide HCF/DCA 35/2024 against part of my decision. The Mother has since filed an application for an extension of time to appeal against my decision.

9       I set out my grounds of decision which incorporate and elaborate on the brief grounds rendered earlier.

The Father’s position

10     The Father says that since the conclusion of the divorce proceedings, the Mother has been drinking excessively and admitted herself to rehabilitation programme, although without success.[note: 16] He cites various incidents, such as one in late 2020 when the children informed him that the Mother passed out while dining with them at [Restaurant X] after consuming too much alcohol.[note: 17]

11     The Father says that the Mother’s conduct has been on a severe decline despite her attempts at rehabilitation and has got to the point that the Mother is unable to perform her parenting duties for the children.[note: 18]

12     The Father says that the Mother has been having suicidal thoughts and expressing her suicidal ideations to the children and the domestic helper.[note: 19]

13     The Father says that the Mother has been increasingly hostile towards him and the children. For example, she takes issue with the fact that the Father has moved on from the marriage and started a new relationship with his partner, who happens to be a Muslim.[note: 20] The Father says that the Mother unilaterally changes the children’s access plans without consulting him and this has in turn disrupted the children’s time with him.[note: 21]

14     The Father says that the Mother was high functioning and held high positions in her past employment, but has been unemployed since 2021. The Mother spends her time cooped up in her study at home and is also more reclusive, erratic, and prone to self-inflicted injuries/harm. The Father says that these are clear symptoms of the Mother’s worsening alcohol addiction and underlying mental health issues, contributing to her inability to be present with the children and perform her day to day tasks.[note: 22]

15     The Father believes that the children’s interests would be best served by having them reside with him and under his care.[note: 23] Consequently, the maintenance orders should also be varied for the Mother to pay reasonable maintenance for the children.[note: 24]

The Mother’s position

16     The Mother says that she resigned from her job with [Employer A] in 2016 to spend more time with the children and took up a role in 2018 with [Employer B] in Singapore. She has been unemployed since September 2021 to focus on her recovery.[note: 25]

17     The Mother says that parties came to an agreement on the children’s care arrangements after lengthy negotiations. Both were independently advised by respective lawyers and both knew what the circumstances were at the time they made the agreement and made the agreement knowing what the terms meant. Therefore the agreement and hence the consent order should be respected [note: 26]

18     The Mother says that parties agreed it would be in the best interests of the children that they remain in her sole care, as she had been their primary caregiver since they were born.[note: 27] Besides being a present and nurturing figure for the children, she also does her best to communicate with the Father in the spirit of being a committed co-parent.[note: 28]

19     The Mother says that the maternal grandparents are both retired and have time on their hands to help and are always more than delighted to spend time with the children.[note: 29] The Mother also has a very good support network at home. The helper has been a huge part of the children’s lives since 2014.[note: 30]

20     The Mother says that the children are thriving under the current care arrangement for the last 3 years.[note: 31] The Father’s time with the children actually fits in nicely with their current routine, and the children are accustomed to these access arrangements already.[note: 32] The children are well adjusted and enjoy their current routine. A reversal of the arrangements would cause a huge upheaval to the children, and would be highly and unnecessarily disruptive.[note: 33] A variation of the care and control orders would not be in the children’s best interests.[note: 34]

21     Further, the Mother says that the Father has not shown any material change in circumstances to warrant a variation.[note: 35] The Mother says that her struggle with alcohol in the past is no secret and the Father himself has been aware of this for a long time, even before the consent order was made.[note: 36] It was a personal problem which she confronted by going for therapy and occasional wellness retreat for a few days.[note: 37] These issues did not render her an unfit parent[note: 38], and the Father had consented to sole care and control being granted to her in the consent order despite knowing that the Mother faced these issues.[note: 39]

22     The Mother says that it is ironic that the Father harps so heavily on her issues with alcohol[note: 40] when the Father too has alcohol dependency issues for a long time and was in rehabilitation.[note: 41] The Mother says that the Father attended five weeks of treatment for his own issues with alcohol in early 2023 and would have hoped that the Father would have been more understanding given the common issues that they have both encountered in their lives.[note: 42]

23     The Mother says that it is untrue that the issues have worsened.[note: 43] She disputes the Father’s allegations that her conduct has been on a severe decline, that she is unable to perform her parenting duties for the children,[note: 44] or that she has been having suicidal thoughts or has been expressing suicidal thoughts to the children and the helper.[note: 45] The Mother says that she is sober and continues to work diligently to maintain her sobriety and to stay on the road of recovery. She has been working each week with two psychiatrists and a therapist at a very highly respected clinic.[note: 46] She exhibited a memo dated 28 June 2023 from her doctor which stated as follows:[note: 47]

[Mother] has been receiving treatment for her Mixed Depressive and Anxiety Disorder with associated Alcohol Use Disorder with Promises since Aug 2016.

I have taken over her treatment since 19 June 2023 for her Mixed Depressive and Anxiety Disorder and Alcohol Use. From discussion with her therapists and previous doctors in charge, we have advised her how to optimise the treatment for her Mixed Depressive and Anxiety Disorder. She was also advised to stop her stressful work to focus on her recovery from her mental health conditions and care for the children.

She has made progress and had been regular with her treatment since discharge. She is currently stable and we are monitoring her condition with regular blood tests. She is not suicidal nor violent and definitely not a threat to her children.

24     The Mother says the issues are under control, and her care of the children has not been adversely affected since the consent order was made.[note: 48] It saddens her that the Father has tried to weaponize her struggles against her, and at the expense of the children.[note: 49]

25     The Mother says that she cannot imagine life without the children in her care. The thought of the Father taking the children away from her primary care is unfathomable for her. She is already dealing with various personal issues, and if what the Father wants is granted to him, she is afraid that her recovery path may be derailed, because she would be completely devasted.[note: 50]

26     The Mother says that the Father’s attempts to discredit her ability to care for the children are based on bare allegations which are easily rebutted.[note: 51] The events that the Father has presented are embellished stories which have no bearing on her ability to care for the children. For example, contrary to the Father’s allegations, she was not drinking alcohol at Restaurant X, but has anaemia which causes her to faint.[note: 52] Furthermore, the Mother has always ensured that either she or a trusted adult figure would be looking after the children.[note: 53]

27     The Mother disputes the Father’s allegations that she turned more hostile towards him[note: 54] and says that she is committed to raising the children to the best of her ability with the Father.[note: 55]

28     The Mother says that the Father is not a suitable caregiver for the children.[note: 56] There is serious doubt as to whether it would be good for the children to be in the Father’s care and control and to live with him and his partner on a daily basis. The Father would not have any trusted adult to help with the care of the children, and whom the children are used to. This would be a major upheaval for the children. [note: 57]

29     The Mother says that the Father is also financially irresponsible and was so tardy in his payment of his credit card payments that his credit line was reduced.[note: 58] The Father is unable to provide the Mother with timely information in his travel plans with the children, which does not inspire confidence that the Father would be able to juggle all the many logistics of the children’s daily activities.[note: 59]

30     The Mother says that she does not have an issue with the Father moving on in life, but does have a valid concern with the Father exposing the children to new romantic interests in his life.[note: 60]

Analysis

Variation of care and control

31     Section 128 of the Women’s Charter 1961 (2020 Rev Ed) (“WC”) provides as follows:

The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

[emphasis added]

32     In DDN v DDO [2024] SGHC(A) 2, the Appellate Division held as follows:

16 … in determining whether a material change in circumstances exists for the purposes of s 128 of the WC, the court is required to balance several interests. This includes on the one hand, the need for stability in carrying out orders and establishing the post-divorce routine for the child over a reasonable period of time, and on the other, the need to be responsive to new developments. As to the former consideration, we recognise that it is not desirable for the parties and their children to be “in limbo”, where constant applications for variation result in uncertainty for the children and keeps the family in the “litigation box” even before there has been sufficient time for the new arrangements to be carried out or for routines to be set up. As to the latter consideration, we are cognisant that the parent-child relationship is dynamic, especially since children have new needs and preferences as they grow older. Thus, the court must also ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

17    The upshot of these competing interests is that while the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child, this should not encourage parties to pursue a variation of orders at the earliest opportunity. Instead, the court expects parties to do their utmost to make the ordered arrangements work. This perspective is crucial to ensuring that “the child’s interests are not side-lined while his or her parents litigate over what they subjectively perceive to be their respective rights and entitlements”: TAU v TAT [2018] 5 SLR 1089 (“TAU”) (at [10]).

33     As the present case involves the variation of a consent order, the observations of Choo Han Teck J in VWQ v VWR [2022] SGHCF 5 (“VWG v VWR”) (at [9]) also bear reiterating:

Although the court has broad powers under ss 73, 119 and 129 of the Women’s Charter 1961 (2020 Rev Ed) to vary agreements on issues of custody and maintenance, such powers should be exercised sparingly and only in exceptional circumstances (AYM v AYL [2013] 1 SLR 924). Generally, a consent order is a contract negotiated and agreed upon by parties, and the courts would be slow to re-write their contract. Privately settled terms negotiated by the parties, especially in family matters are to be encouraged. As such, they should be respected, and not lightly changed. Otherwise, one party may lead the other to believe that obtaining a consent order would end their dispute, only to call in aid the provisions in the Women’s Charter to vary their agreement (TOC v TOD [2016] SGHCF 10) when they feel that the bargain was not to their liking subsequently.

34     Although the Mother’s position is that there is no material change in circumstances as the Father was aware of her struggle with alcohol even before the consent order was made, it is clear from a review of the evidence and the CER that the children are distressed and affected by her current condition.

35     While the court would be slow to re-write a consent order agreed upon by parties, there are concerns affecting the wellbeing of the children that need to be addressed. As noted above, the court will take a wider and more holistic approach to assess what constitutes a material change in circumstances for issues involving a child. The court must ensure that there is sufficient flexibility to adjust orders relating to the child’s arrangements to suit the current circumstances facing the child.

36     In the present case, both parents have deficits due to their alcoholism. As alcoholism is a life-long mental health concern that the parents will require addiction treatment and ongoing aftercare, the reality is that either parent could experience relapses, especially given the heightened stressors due to the variation applications. The difference is that the Father appears to have coped better. He is able to sustain employment and function daily. He is open about his challenges and has demonstrated a willingness to acknowledge his own failings and work on them.

37     In contrast, the Mother, unfortunately, does not seem to be coping well. She is unable to sustain employment and has stopped work since September 2021 on the advice of her doctors and therapists to focus on recovery from her mental health conditions.[note: 61] The fragility of her mental state is worrying, as may be gathered from her insistence that she would be “completely devasted” if the Father is granted sole care and control of the children. She appears to lack insight and attunement to the children’s struggles and tends to focus on the Father’s deficits instead of taking accountability for her own.

38     While I empathise with both parents in the challenges they face, it is important for the parents to recognise that the children’s exposure to their alcoholism is a cause for concern as there is an impact on their current coping and future self.

39     I share some insights from the social science perspective. As noted in the CER, children in general need some structure and predictability. Their emotional and psychological wellbeing will benefit from a consistency of care for them to develop secure attachments. Unfortunately, when living with a parent with alcohol addiction, children tend to function in a survival mode as they have to tread carefully around the parent to avoid triggering the parent and to maintain peace. Additionally, children may become confused and potentially blame themselves when the alcoholic parent denies the addiction problem. Due to these experiences, children tend to be more rigid and inflexible, have anxiety, self-critical, have perfectionist traits, and hold back emotionally.

40     In the present case, there is an even greater need for the parents to be empathetic to the children’s struggles, given that both parents suffer from alcohol dependency issues.

41     In addition, the ongoing litigation has harmful effects on the children. In this regard, the following caution of Debbie Ong JAD in WBU v WBT [2022] SGHCF 9 (at [47]) bears reiterating:

Litigation has harmful effects on the child – materially, because the family loses in incurring litigation expenses, and psychologically, because conflict affects the whole family in ways not easily visible …

42     The parents need to rise above their own challenges and mitigate the stressors affecting the children.

43     As noted above, the Father presents as a functioning alcoholic. He is able to manage and attend to the children’s needs and has been proactive in engaging the school about the children’s coping and progress. The children cope better with the Father due to his mannerisms towards them and the stability that he offers. Although the Mother is the care and control parent, the children appear to rely on the Father for emotional support and safety.

44     As the Father is a stabilising presence in the lives of the children, he can provide support to the children by taking on greater responsibility in their care. Indeed, that is what the Father hopes to do. That said, I am mindful that a reversal of care and control would be too drastic and could deal a heavy blow to the Mother given her fragility. The children are worried about the Mother’s emotional and physical wellbeing and want her to get better. They care for the Mother and love her.

45     In my view, there is room for a more compassionate approach to be adopted – one that allows for the children’s needs to be addressed without discouraging the Mother and affecting her recovery. For this reason, I find that a shared care arrangement is preferrable to a reversal of care and control. Under a shared care arrangement, the Mother can take comfort in the fact that the care of the children is not “taken away” from her as she had feared. On the contrary, the children will benefit from the care given by both parents playing equal and complementary roles in their lives. The shared care arrangement is also consistent with the Mother’s commitment to raise the children to the best of her ability with the Father. The Mother will also have more time to focus on her recovery.

46     For these reasons, I ordered that the parents shall have joint custody and shared care and control of the children on the terms set out in [7] above. Additionally, as the parents and children can benefit from the mental health and therapeutic services provided by a mental health trained therapist under the POTS (Panel of Therapeutic Specialists) Programme, the parents were encouraged to consider entering into a consent order for this purpose so that a referral could be made.

Variation of maintenance

47     I turn now to the children’s maintenance.

48     In AYM v AYL [2014] 4 SLR 559, the Court of Appeal noted as follows:

15    In relation to variation of maintenance for children, the relevant provisions are in ss 72 and 73:

Rescission and variation of order

72.—(1)    On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, his wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit.

(2)    Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application.

Power of court to vary agreement for maintenance of child

73.    The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child… notwithstanding any provision to the contrary in that agreement, where it is satisfied that it is reasonable and for the welfare of the child to do so.

Although the parties did not cite these provisions in their respective cases or submissions before us, we thought that we should make clear the basis for varying the maintenance of the Children if that is what we are minded to do.

16    Section 73 provides that any agreement relating to maintenance may be varied where the court is “satisfied that it is reasonable and for the welfare of the child to do so”. The parties did not address us at all on this requirement under s 73. But in our judgment, the provision is wide enough to encompass a material change in the circumstances of the parents as a basis for varying the maintenance for the child. Whether or not this should result in the maintenance actually being varied is of course a factual inquiry that depends on the circumstances of each case. In the present appeals before us, the parties addressed us solely on whether there were material changes in the circumstances. Nonetheless we also considered the provisions of s 73.

49     Sections 72 and 73, which fall under Part 8 of the Charter, are applicable to a maintenance order made under s 127(1) of the Charter by virtue of s 127(2).

50     As noted in VWG v VWR, the court’s powers to vary agreements on maintenance should be exercised sparingly and only in exceptional circumstances.

51     The Father says that at the time of the consent order, the parties agreed to share the children’s reasonable monthly expenses equally. As the children’s monthly expenses amount to about S$16,000, they agreed that the Father shall pay the Mother half of this sum a month for the children’s maintenance. Although he initially made an offer to pay maintenance of S$7,000 for the children, they eventually agreed to the sum of S$8,500, and this is reflected in the consent order.[note: 62]

52     The Mother says that the children’s school fees have been excluded from the children’s reasonable expenses since the consent order was made as her parents have been paying for that expense.[note: 63]

53     This is disputed by the Father as follows:[note: 64]

I am fully aware that the Plaintiff’s parents have been paying the children’s school fees directly at the Plaintiff’s instructions which is on all accounts, the Plaintiff’s prerogative, but this does not mean that I have not been contributing to the children’s school fees every month. I state that the existing maintenance sum of $8,500 includes provision for the children’s school fees and repeat the above.

54     The Mother says that her parents knew that the maintenance provided by the Father would be inadequate to maintain the standard of living which the children and the Mother were accustomed to and said that they would help pay for the children’s school fees if they live with her.[note: 65] However, the Mother did not produce any affidavit from her parents to support her claim nor did she produce any other corroborative evidence to show that the school fees were excluded from the computation of the children’s monthly expenses at the time of the consent order. In the circumstances, I found it difficult to accept the Mother’s bare assertion. In my judgment, it is more likely that the existing maintenance sum of $8,500 includes provision for the children’s school fees as stated by the Father.

55     The Father says that the children’s monthly expenses and needs have not changed significantly since the IJ, and there should not be any revision to the quantum payable for their monthly maintenance moving forward.[note: 66] He disagrees with the Mother’s assertion that the monthly expenses of the children have increased to the tune of S$21,000.[note: 67] The Father says that if he were to have care and control of the children, the Mother shall pay the children’s monthly maintenance amount of $8,500 to him.[note: 68]

56     Since the Father’s prayer for reversal of care and control is not granted, it follows that the Father’s prayer for the Mother to pay reasonable maintenance in the sum of $8,500 per month for the children must likewise be refused. While a downward adjustment to the quantum of the maintenance payable by the Father would have been warranted to take into account the fact that the children will now spend more time with the Father under the shared care arrangement, I note that the Mother has been unemployed since September 2021 on medical ground.

57     Balancing all factors, I found that it would be preferrable for the status quo to remain for now. Accordingly, I made no adjustment to the existing maintenance order.

58     Turning now to the Mother’s cross-application to increase the maintenance for the children, the Mother’s case is that at the time the consent order was made, she was working at Employer B and her gross monthly income in 2021 was $6,836.[note: 69] In September 2021, she resigned from her job[note: 70] at the advice of her doctor[note: 71] and has not gone back to the workforce since then.[note: 72] The Mother says that she no longer has an income or earning capacity.[note: 73] This is a material change in circumstances which warrants the Mother asking for the Father to pay the bulk of the children’s expenses amounting to S$21,000 per month. [note: 74]

59     The Father says that while the Mother claims in her affidavit that she is unemployed and insinuates that she is unable to obtain employment due to her depression and alcohol abuse, she in fact has represented that she has always been employed.[note: 75] The Father says that the Mother has failed to account for regular deposits to her DBS Multi Currency Autosave Account between the period February 2023 to May 2023, which suggests that she has undeclared sources of income.[note: 76] The Father alleges that the Mother is seeking to hide her actual income earnings and the full extent of her wealth.[note: 77]

60     The Father says further that the Mother’s doctor’s memo does not state that she is prevented from or unable to obtain other employment from her previous work at Employer B. Since being out of job in September 2021, the Mother has not shown any effort to obtain gainful employment.[note: 78]

61     It is an established principle that the financial obligations of parents depend on their financial capacity. As noted in WBU v WBT [2023] SGHCF 3 (at [38]):

… financial capacity need not be rigidly ascertained by sole reference to income alone. Consistent with s 69(4)(b) of the Charter, the court should consider the parties’ “income, earning capacity (if any), property and other financial resources”, as well as significant liabilities and financial commitments. For instance, a party who earns no income but has substantial savings or had received substantial inheritance would well be able to afford to bear a higher burden of the maintenance obligation, if reasonable in the circumstances of the case. The court should also have regard to the assets received by parties after the division of their matrimonial assets.

62     As the Mother is seeking to vary the maintenance order, the burden of proving the existence of a material change in circumstances rests with her: see AXM v AXO [2014] 2 SLR 805 (at [31]). The Mother says that she no longer has an income or earning capacity, though this is disputed by the Father. However, even taking her case at its highest, I found that she has not discharged the burden of proof. As noted above, the financial capacity of a party is not rigidly ascertained by sole reference to income alone. The court is required to consider the party’s property and other financial resources. A party who earns no income may well have property and other financial resources that could meet his or her maintenance obligation. As the Mother has not provided any evidence of her property or other financial resources, there is no basis for the court to form an accurate assessment of her financial capacity that would warrant a variation. Accordingly, I made no order on her cross-application.

63     As neither party has succeeded fully and having regard also to the need to reduce acrimony, I made no order as to costs.

[note: 1]Mother’s Written Submissions dated 7 November 2023 at [11].

[note: 2]Mother’s Written Submissions dated 7 November 2023 at [15].

[note: 3]Mother’s Written Submissions dated 7 November 2023 at [16].

[note: 4]Father’s Written Submissions dated 7 November 2023 at [6].

[note: 5]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [6].

[note: 6]Mother’s Written Submissions dated 7 November 2023 at [12].

[note: 7]Father’s Written Submissions dated 7 November 2023 at [7].

[note: 8]Father’s Written Submissions dated 7 November 2023 at [5].

[note: 9]Mother’s Written Submissions dated 7 November 2023 at [19].

[note: 10]Mother’s Written Submissions dated 7 November 2023 at [20].

[note: 11]Father’s Written Submissions dated 7 November 2023 at [9(a)-(c)].

[note: 12]Father’s Written Submissions dated 7 November 2023 at [9(g)].

[note: 13]Father’s Written Submissions dated 7 November 2023 at [10].

[note: 14]Father’s Written Submissions dated 7 November 2023 at [11].

[note: 15]Father’s Written Submissions dated 7 November 2023 at [12].

[note: 16]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14].

[note: 17]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(a)(i)].

[note: 18]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(i)].

[note: 19]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(ii)].

[note: 20]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(1)].

[note: 21]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iii)(5)].

[note: 22]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [14(f)(iv)].

[note: 23]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [15].

[note: 24]Father’s Affidavit in Support (SUM 1409) filed on 3 May 2023 (“DA1”) at [17].

[note: 25]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128].

[note: 26]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [13].

[note: 27]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [15].

[note: 28]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [34].

[note: 29]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [35].

[note: 30]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [36].

[note: 31]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [31].

[note: 32]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [33].

[note: 33]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [37].

[note: 34]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 35]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 36]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [41].

[note: 37]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 38]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [43].

[note: 39]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [44].

[note: 40]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 41]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [46].

[note: 42]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 43]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 44]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [93].

[note: 45]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [117].

[note: 46]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [48].

[note: 47]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at p 180.

[note: 48]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [45].

[note: 49]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [137].

[note: 50]Mother’s Supplementary Affidavit (SUM 1409) filed on 31 August 2023 (“PA2”) at [19].

[note: 51]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [38].

[note: 52]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [52].

[note: 53]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [131].

[note: 54]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [86].

[note: 55]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [118].

[note: 56]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at (3) at p 49.

[note: 57]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [122].

[note: 58]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [134].

[note: 59]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [135].

[note: 60]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [121].

[note: 61]Mother’s Affidavit in Reply (SUM 1409) filed on 30 June 2023 (“PA1”) at [128] & p 180.

[note: 62]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [16].

[note: 63]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 64]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [18].

[note: 65]Mother’s Affidavit in Support (SUM 2728) filed on 31 August 2023 (“PA3”) at [63].

[note: 66]Father’s Written Submissions dated 7 November 2023 at [32].

[note: 67]Father’s Affidavit in Reply (SUM 2728) filed on 4 October 2023 (“DA4”) at [19].

[note: 68]Father’s Written Submissions dated 7 November 2023 at [31].

[note: 69]Mother’s Written Submissions dated 7 November 2023 at [94].

[note: 70]Mother’s Written Submissions dated 7 November 2023 at [95].

[note: 71]Mother’s Written Submissions dated 7 November 2023 at [97].

[note: 72]Mother’s Written Submissions dated 7 November 2023 at [96].

[note: 73]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 74]Mother’s Written Submissions dated 7 November 2023 at [113].

[note: 75]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 76]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 77]Father’s Written Submissions dated 7 November 2023 at [33].

[note: 78]Father’s Written Submissions dated 7 November 2023 at [38].

"},{"tags":["Family law – Variation of Ancillary Matters Orders – Care and control – Access"],"date":"2024-05-27","court":"Family Court","case-number":"Divorce Suit No. 155 of 2018","title":"UYN v UYO","citation":"[2024] SGFC 30","url":"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%2F31570-SSP.xml","counsel":["Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother","Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father."],"timestamp":"2024-05-30T16:00:00Z[GMT]","coram":"Michelle Elias Solomon","html":"UYN v UYO

UYN v UYO
[2024] SGFC 30

Case Number:Divorce Suit No. 155 of 2018
Decision Date:27 May 2024
Tribunal/Court:Family Court
Coram: Michelle Elias Solomon
Counsel Name(s): Jasjeet Singh (Dhillon & Panoo) for the Plaintiff/Mother; Anil Narain Balchandani (Red Lion Circle) for the Defendant/Father.
Parties: UYN — UYO

Family law – Variation of Ancillary Matters Orders – Care and control – Access

27 May 2024

District Judge Michelle Elias Solomon:

Introduction

1       The parties in these proceedings were formerly husband and wife. In these Grounds, I shall refer to the parties as the Mother, who is the Plaintiff, and Father, who is the Defendant. The Mother and Father (“the Parties”) have one child, A, who was born in 2016.

2       The Parties were married in 2014. The Mother commenced divorce proceedings in 2018 and the Interim Judgment was granted that year. I made orders in respect of the ancillary matters on 25 March 2019 (“the Ancillary Order[note: 1]”), which granted, among others, care and control of A to the Mother and reasonable access to the Father. Both Parties, being dissatisfied with parts of my decision, filed cross-appeals[note: 2]. Both appeals were dismissed in October 2019.

Background and previous applications

The 1st Variation Application

3       After the Final Judgment was issued, the Father filed two applications to vary the Ancillary Order. The first application[note: 3], filed in December 2019, sought a variation of the access orders in the Ancillary Order (“the 1st Variation Application”). The 1st Variation Application essentially sought to:

(a)     Start Monday access one hour earlier.

(b)     Extend overnight access to 2 nights per week (instead of 1 night per week).

(c)     Include Deepavali in the reckoning of Public Holidays.

(d)     Allow Parties to take A overseas irrespective of whether there were school closures.

(e)     Include orders for birthday access, being present at A’s medical check-ups and the Parties’ parents assisting with A’s handovers.

4       I dismissed the 1st Variation Application but made the following orders in addition to, and to be read with, the Ancillary Order:

(a)     Each parent shall update the other on A’s medical issues within two days of receiving such update (or within two days of the doctor’s visit, as the case may be).

(b)     The parent who does not have care of A on her birthday will have her birthday dinner with her from 6:30 p.m. – 8:30 p.m. on A’s birthday.

(c)     The parents of the Father and Mother shall be at liberty to assist the Father and Mother with access handovers.

5       The orders in respect of the 1st Variation Application were granted on 1 June 2020 (“the 1st Variation Order”). There was no appeal filed against the 1st Variation Order.

The 2nd Variation Application

6       The second variation application[note: 4] was filed in May 2021, less than a year after the 1st Variation Order was granted (“the 2nd Variation Application”). The 2nd Variation Application sought to expand overnight access from one to three nights and reduce maintenance for A. I dismissed the Father’s application to reduce A’s maintenance but increased overnight access from one night to two nights, ordering that the Father have access to A every Thursday after school to Saturday 6:30pm each week. I also made some orders on Father’s / Mother’s Day and birthday access.

7       The orders in respect of the 2nd Variation Application were granted on 21 February 2022 (“the 2nd Variation Order”). There was no appeal filed against the 2nd Variation Order.

Primary One Registration Application

8       Parties could not agree on which primary school A ought to be registered in. I heard and made orders on the Mother’s application in respect of Primary One Registration, granting an order for the Mother to decide on A’s primary school in May 2022. There was no appeal filed against this order.

The current application and orders made

9       The current application to vary the Ancillary Order and 2nd Variation Order was filed by the Father. The table below summarises the changes sought:

S/no

Order to be varied

Current order

Changes sought by Father

1

The Ancillary Order[note: 5]

The Mother shall have care and control of A with reasonable access to the Father.

The Mother and Father shall have

shared care and control of A[note: 6].

2

The 2nd Variation Order[note: 7]

(a) The Father shall have access every Tuesday from 6:30 pm to 8:30pm.

(b) The Father shall have access every Thursday after school to Saturday 6:30pm (overnight access).

(a) The Father’s care and control of A to be from Wednesday after school to Saturday 6:30pm.

(b) In the alternative, the Father’s Tuesday access be varied to the following: pick A up on Tuesday 6pm and drop off on Wednesday morning at school. The Father to be responsible for A’s pick up and drop off.

(c) Daily video call access to A for the parent who is not with A. Video call not to exceed 15 minutes and to be done prior to A’s bedtime. This would apply to the Mother if A is under the care of the Father[note: 8].

3

The Ancillary Order

Clause 1(f): Every alternate Public Holiday from 10.00am to 8.00pm.

The inclusion of the following clause:

(i) For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm[note: 9].

4

n/a

n/a

The inclusion of the following clauses:

(i) An order prohibiting the Mother and/or her family members from smoking and/or vaping in the presence of A.

(ii) An order prohibiting the Mother from describing to A her relationships with men as ‘sugar daddies’[note: 10].



10     On 6 February 2024, I delivered my decision[note: 11], allowing the Father’s application in part as follows:

The Order of Court dated 25 March 2019 shall be varied in the following manner-

(a)       The following sentence shall be inserted immediately after Clause 1(f) –

For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

(b)       Apart from the orders made herein, all other prayers in FC/SUM 1702/2023 are dismissed.

(c)       The Parties shall continue to attend divorce counselling and co-parenting programmes.

(d)       Liberty to apply.

11     The Father appealed against part of my decision[note: 12], specifically, the dismissal of his prayers for shared care and control, further changes to access, orders prohibiting vaping / smoking in front of A and an order prohibiting the Mother from describing to A her relationships with men as “sugar daddies”. I now provide the grounds.

The evidence and submissions

12     The following affidavits and submissions were filed for the current application:

(a)     F1 – Father’s affidavit filed on 29 May 2023;

(b)     F2 – Father’s supplementary affidavit filed on 16 Jun 2023;

(c)     F3 – Father’s affidavit filed on 4 Sep 2023;

(d)     Father’s written submissions filed on 9 Oct 2023;

(e)     Father’s letter dated 23 Oct 2023 with submission on electronic evidence;

(f)     M1 – Mother’s affidavit filed on 4 Jul 2023;

(g)     M2 – Mother’s affidavit filed on 17 Oct 2023;

(h)     Mother’s written submissions filed on 9 Oct 2023;

(i)     Mother’s letter dated 17 Oct 2023 with submission on electronic evidence.

13     I now move on to the Parties’ cases.

The Father’s Case

14     According to the Father, there were several factors which formed the basis for a material change in circumstances, and that this change warranted a variation of the Ancillary Order and the 2nd Variation Orders. He also argued that a material change of circumstances was often the result of a confluence of factors and not simply precipitated by a single event[note: 13].

15     The Father contended that the application was necessary for several reasons, including that A was growing fast and required an adjustment in terms of orders relating to care, control, access etc[note: 14]; it was because of inaction or impasse that the Father sought the assistance of the court[note: 15]. In support of his position, he raised the following:

(a)     A’s welfare was no longer well served by the current orders[note: 16] and she wished to spend more time with the Father[note: 17].

(b)     A was older and in primary school. She had greater demands now and was able to cope with more overnight access and had the capacity to do more activities[note: 18].

(c)     Parties could cooperate and were not acrimonious[note: 19].

(d)     He was a committed father, not missing a single access session and aspiring to be a more involved parent. He had taken positive steps to prioritise A and had left his previous job to be able to be increasingly involved in A’s life[note: 20]. He now worked at a bank which allowed flexible work hours and work-from-home arrangements resulting in more time and availability for A[note: 21].

(e)     Aspects of the Mother’s lifestyle were not favourable to A’s upbringing[note: 22] and she had work-related commitments resulting in her spending less time with A[note: 23].

16     In support of his application for shared care and control, the Father raised the following:

(a)     Shared care and control would allow for better equanimity between parents when dealing with matters relating to A; shared care and control also had a bearing on A as she would be able to witness more co-operation and respect between her parents[note: 24].

(b)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 25].

(c)     Shared care and control would prevent the Mother from using the excuse that she can dictate matters, just because she had sole care and control[note: 26].

(d)     Under the present care and control orders, the Father’s access was treated as a burden that the Mother had to tolerate. The Mother did not value the Father’s contributions and/or burdens in relation to picking up and dropping off A and acts unilaterally to curtail Father’s access[note: 27].

(e)     Besides improving the imbalance, shared care and control would allow the Father more access time with A. This is coterminous with A’s desire to have more time with the Father and for the Father to be more involved in her life. This would eventually be in A’s benefit as she would see both parents as equal stakeholders in her formative years, and would appreciate the fact that both parents played an equal role in her life[note: 28].

(f)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 29].

(g)     This application presents an opportunity for consideration of variation of its terms to allow A to continue growing under the joint care and control of the parents; shared care and control was therefore suitable for this family[note: 30].

17     The Father also sought overnight access to be increased from 2 to 3 times per week[note: 31] for the following reasons:

(a)     A was 7 years old; this increase in age and maturity was in itself, a material change in circumstances[note: 32].

(b)     The present two-hour Tuesday access was very rushed[note: 33] and it was unfair and stressful for A. Now, in primary school, she takes longer to eat, needs time to do her homework, wants to spend time with her grandparents and needs to use the washroom before she leaves for the Mother’s residence[note: 34]. The Father constantly ends up sending A back between 8:30pm to 8:45pm on Tuesday evenings and both risk facing the wrath of the Mother during drop off[note: 35]. Due to the Mother’s work schedule and her constant desire in wanting to limit Father’s access, A is the one who bears the brunt of it. It is not fair to A that she has to endure being rushed when it is clearly not her fault; A is just growing up[note: 36].

(c)     The Mother uses the delays in handover to intimidate the Father with sanctions and threats of reducing access[note: 37].

(d)     Having overnight access from Wednesdays after school to Saturdays 6:30pm will allow the Father to leverage the work flexibility accorded and to do more for A, allowing him to be more involved in her life[note: 38].

(e)     Straight through access without any disruption prevents a nomadic situation for A on Tuesdays[note: 39].

(f)     Alternatively, instead of overnight access commencing on Wednesday after school, there should be overnight access on Tuesdays starting at 6pm[note: 40]. However, either way, the Father sought an order for shared care and control [note: 41].

18     The Father also stated that Parties were not acrimonious[note: 42], citing the following:

(a)     Parties were able to cooperate[note: 43] and A’s teachers observed that both parents were doing a “very good job in raising A”[note: 44].

(b)     When the Mother’s grandmother passed away, the Father had gone out of his way to be civil and respectful, sending the Mother a condolence message to help her get through the loss and asking for permission to attend the wake. The Father characterised this as the “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 45].

(c)     Cooperation was exhibited when A was presented on her first day at her new school; both the Mother and Father were beaming with pride[note: 46].

19     In the current application, the Father also sought:

(a)     Video access, as it was important for A to know that she could speak to either of her parents on the days she does not see them without any fear[note: 47].

(b)     Deepavali access, in that the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A[note: 48].

(c)     Orders prohibiting the Mother from smoking and/or vaping in the presence of A. This is because, according to him, A had shared that the Mother, the Mother’s mother, and the Mother’s father would vape or smoke in front of A. According to the Father, A revealed this to him during a casual conversation which he recorded and transcribed.

(d)     An order prohibiting the Mother from referring to her male counterparts as “sugar daddies” when speaking to A. The Father believes that A will come to have a negative view of relationships with men, and may believe that relationships with men should be modelled after the Mother, which involves someone buying expensive items for her[note: 49].

20     For all these reasons, the Father sought to vary the care and access orders.

The Mother’s Case

21     The Mother disagreed to the variations sought by the Father, contending that he had failed to establish a material change in circumstances[note: 50] and abused the court’s process by relitigating matters that had already been adjudicated[note: 51]. In support of her position, she raised the following:

(a)     The Father’s personal desires did not satisfy the threshold of material change in circumstances[note: 52]. The focus of the Father’s applications had been, and continues to be, his desire for increased access with A while curtailing the Mother’s access and treating access arrangements as a competition[note: 53].

(b)     The Father accepted that the current arrangement had allowed him to play a greater role and be more involved in A’s life[note: 54].

(c)     The present access arrangement provided the Father with much more uninterrupted access with A compared to the Mother, and to allow additional overnight access would be detrimental and much too soon for A who was heavily dependent on the Mother for emotional and physical support[note: 55]; any changes to the access arrangement should be gradual and considered only when there is a material change in circumstances[note: 56].

(d)     The Father’s prayers for overnight access were similar to the prayers sought in the 2nd Variation Application[note: 57]. This was the third application filed by the Father, and the Mother has essentially had to return to court every year[note: 58], preventing the Parties from being able to move on and resulting in a waste of time and resources for the court[note: 59].

(e)     The Father’s insistence on filing unmeritorious variation applications every other year have subjected the Mother to overwhelming legal costs[note: 60]. Just because a bit of time has passed since the dismissal of the earlier application did not amount to a material change in circumstances warranting a variation of the access orders[note: 61].

(f)     The prayers for video access were essentially the same as in the 2nd Variation Application, save that it was reduced from 20 minutes to 15 minutes[note: 62].

(g)     The court should be cautious in varying access orders as there had to be finality to this case[note: 63]; the Father’s want for more access would keep resulting in an application to court each year, with the history of this case showing that every year, there had been an application filed by the Father[note: 64].

22     The Mother disagreed with additional overnight access, maintaining that A was only now getting fully accustomed to the current access arrangements and, coupled with the demands of school and CCA, any changes would result in A having too much on her plate[note: 65]. Additionally:

(a)     The court has already increased the Father’s access in the previous application; any further changes would be unfair to the Mother and not in A’s best interests[note: 66] as it would affect her emotional stability and sense of security given that the Mother had been A’s primary caregiver since her birth[note: 67].

(b)     A cries every time she has to go for access and it is difficult for her; the Mother has invested time and effort to positively reinforce to A that she should view her current living arrangements as an advantage[note: 68]. However, A is still struggling to cope with spending less time with the Mother and voiced on several occasions to the Mother that she was reluctant to spend more time with the Father at the expense of her time with the Mother[note: 69].

(c)     The Mother has tried to alleviate the rush on Tuesdays, but this has fallen on deaf ears; any rush on Tuesdays is therefore self-induced and the Father should not be allowed to benefit from his lack of cooperation and adamance[note: 70]. If there are any changes to be made, it should be to eliminate access on Tuesdays[note: 71].

23     The Mother also disagreed to orders being made for shared care and control, raising the following.

(a)     The Father had launched a slew of accusations and personal attacks against the Mother and her family members[note: 72] to convince the court that shared care and control should be granted.

(b)     It was painfully obvious that A has been coached by the Father[note: 73], who had employed unscrupulous means to obtain this ‘evidence’ and solicited answers from her[note: 74], which he claims were by mere coincidence[note: 75]. The Father’s questions to A were structured in a way to elicit his desired responses from her and the Father continued to press A for responses that fit his narrative[note: 76]. There were also times when A disengaged from the topic and spoke about unrelated matters, but the Father continued to reel her back into the conversation, clearly evincing his intention to have the conversation on tape[note: 77].

(c)     The Father’s penchant for disseminating falsehoods was, in itself, a reason why care and control should not be varied as it was clear that the Father wished to disparage the Mother and the Mother’s family members[note: 78].

(d)     Contrary to Father’s statements that the Mother was not a good role model to A, it was the Father who has failed to provide a safe environment for A that does not affect her perception of the Mother and her family[note: 79].

(e)     The Father has encouraged A to address the Mother, grandmother and grandfather by their names instead of using the proper terms of respect[note: 80], and has done nothing to correct her behaviour[note: 81] in this regard – this was evidenced by their interaction in the audio recordings.

(f)     The Father’s actions have forced A to be in the centre of tension between the Parties and the Father has failed to be able to separate his prejudice against the Mother and/or her family members from what is important for A[note: 82].

24     In defending the orders on video / Deepavali access and orders prohibiting her from certain acts, the Mother maintained that these prayers should be dismissed with costs[note: 83] and raised the following:

(a)     There had been no material change in circumstances in respect of video call and Deepavali access[note: 84].

(b)     The prayers seeking prohibitory orders were not within the ambit of a variation application; there were also no reasonable grounds to do so[note: 85]; the Mother was cognizant of the laws of Singapore and none of her family members or her vape, let alone possess a vaping device[note: 86].

(c)     The Father was seeking to prohibit the actions of the Mother and her family members without any reasonable grounds and in the absence of compelling evidence[note: 87]. There exists a procedural irregularity[note: 88] in this regard and the kind of injunction the Father seeks was also unclear[note: 89]. These prayers were also sought against persons who were not parties to these proceedings and the court had no right to make orders in this regard[note: 90].

(d)     The Mother filed a Notice of Objection[note: 91] setting out her reasons for objecting to the various audio recordings. She challenged the authenticity, validity, legality and admissibility of the transcriptions; A was never aware of herself being recorded and the Father transcribed these audios on his own[note: 92].

(e)     The Father brazenly recorded A’s schoolteachers during the Meet-the-Parents session on 26 May 2023; it was unclear if A’s teachers were aware they were being recorded or that this was going to be adduced as evidence in court proceedings[note: 93].

(f)     The Father was looking for ways to portray the Mother and her living environment for A as dangerous and undesirable for A without any evidence[note: 94].

(g)     The term ‘sugar daddy’ was used inadvertently in A’s presence on a single isolated occasion[note: 95]; the Father was always fishing for information from A and embellishing the truth in doing so, demonstrating how low he would go in portraying the Mother in negative light and/or as an unfit parent[note: 96].

25     For all these reasons, the Mother contended there were no reasons to vary access orders again; there needed to be finality to this case[note: 97] and the Father had not established a material change in circumstances warranting a variation of the current orders. As the Father simply treated such variation applications as a ‘backdoor’ appeal to relitigate[note: 98], the Mother sought a dismissal of the Father’s application with costs[note: 99].

Issues to be determined and the applicable law

26     The starting point in determining variations to care orders made under the Women’s Charter is s. 128[note: 100] which reads:

Power of court to vary order for custody, etc.

128.  The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

27     On the issue of shared care and control, VJM v VJL and another appeal [2021] SGHCF 16[note: 101] (VJM v VJL) noted:

Whether shared care and control was suitable for a particular family depended on the precise facts and circumstances of each case. There was neither any legal principle against shared care and control, nor a legal presumption that such arrangement was always in a child’s welfare[note: 102].

28     The issues for determination were:

(a)     The admissibility of the Father’s audio evidence which the Mother disputed; and

(b)     Whether there was a material change in circumstances warranting –

(i)       the variation of the Ancillary Order and the 2nd Variation Order on care and control; and

(ii)       additional orders to be made, including access orders for Deepavali and video calls.

29     I will deal with each issue in turn.

The admissibility of the Father’s audio evidence

30     In support of his case, the Father adduced various transcripts of audio recordings, which he recorded on his own, of conversations between:

(a)     A and himself; and

(b)     A’s teachers and himself.

31     The Mother challenged the admissibility of the transcriptions, contending that this evidence was hearsay[note: 103]. I was unable to agree. This was the Father’s own evidence; he participated in these conversations and recorded them, on his own, using his own device. He also transcribed these recordings. The transcriptions were therefore, in my view, not hearsay.

32     I now move on to the accuracy of the transcriptions. Apart from contending that the transcriptions did not capture the full conversations in question, the Mother did not challenge the accuracy of the transcriptions. This means that whatever was said and heard on the audio clips was scripted[note: 104] appropriately for the portions that were transcribed. During the hearing, the Father’s counsel also played this audio evidence for me to hear; I did not note any material discrepancies between what I had heard and what was transcribed. In my decision, however, I have relied on none of this evidence for several reasons.

33     Firstly, the Father’s evidence was vague as to whether A was aware that her conversation was being recorded. The Father provided this context to the recording:

A has informed me on several occasions that the Plaintiff, the Plaintiff’s mother, and the Plaintiff’s father vape or smoke in front of her while she is at the Plaintiff’s home. A revealed this to me for the first time on 1 April 2023. This was brought to my attention during a casual conversation in the car with A. I did not solicit this from A. As there is a recording device in my car, it captured what A had told me and I have transcribed the conversation[note: 105].

[emphasis in original]

34     I had great discomfort relying on such evidence; in my view, it was tantamount to overhearing a private conversation between A and her father that was only meant for her father’s ears, and then using the information in these proceedings. I also took this view when dealing with the Father’s recorded conversation with A’s teachers. Again, it was unclear if the teachers were aware that they were being recorded. The Father provided this context to the recording:

In relation to the Mother’s claim that parties cannot co-operate and there is danger to A’s well-being, my communication with A’s form teachers during the recently concluded mid-term meet the parent session on 26 May 2023 will clearly show that the Mother is making things up. During the session, I had asked A’s form teachers … the following: (a) knowing A’s parents are divorced, is there something to be concerned about in terms of A’s behaviour; (b) to identify whether A is lacking in certain areas; (c) whether A is coping well with school. Her teacher commented with confidence that both me and the Mother are doing a very good job in raising A, we are coparenting well, and there are no areas A is lacking emotionally. She also added A is doing well socially. When I asked if there is any advice on how else I can support A, her teacher mentioned I am doing a good job thus far and just for A to continue reading more books[note: 106].

[emphasis in original]

35     Following my concerns about this approach to obtaining evidence, I was not prepared to give weight to such evidence. In truth, if the Father was concerned about contents of a private conversation he had with A about vaping or smoking, the first port of call should have been to engage the Mother directly over these concerns, not write about it in affidavits that were filed in court. Further, if the Father’s relationship with the Mother was as cordial as he claimed, this would have happened organically. However, the evidence did not show any attempts to engage the Mother in meaningful discussion on his concerns, making it at odds with the Father’s submissions that –

(a)     the Parties could cooperate and were not acrimonious[note: 107]; and

(b)     A would be able to witness more co-operation and respect between her parents[note: 108].

36     Finally, if the Father considered it necessary to obtain evidence from A’s teachers stating their views on A’s progress in school for use in these proceedings, he could have requested a note from the teachers in this regard. The Father has not explained the necessity of recording his conversation with the teachers to achieve this objective. For all these reasons, I was unable to place any weight on the Father’s audio evidence and the corresponding transcripts.

Care and control / access orders ought not to be varied

37     I was unable to find that the orders on access or care and control should be varied. Firstly, the last round of orders made for this case envisaged A entering Primary One. In arriving at my decision in the 2nd Variation Application, I was cognizant of the Parties’ parenting journey in the years prior, and what was to follow in the coming year. I was therefore unable to place much weight on A being older and in primary school[note: 109] as a factor constituting material change, as this event was a foreseeable one when granting the 2nd Variation Order.

38     Secondly, the Father’s assertions that Parties could cooperate and were not acrimonious[note: 110], or that this application was not a result of acrimony[note: 111], was not born out in evidence. The affidavits were riddled with allegations by one parent against the other over their speech and conduct, including what was said and/or done in front of A. Each accused the other of behaving unreasonably while maintaining that they themselves had been reasonable. I therefore remained unpersuaded by the Father’s submission that the Mother was using acrimony for self-serving purposes[note: 112].

39     Thirdly, I noted the Father’s submission that this application had become necessary because A was growing fast and required an adjustment in terms of care orders[note: 113]. However, these were not circumstances under which the court’s powers ought to be invoked. Indeed, if every order needed to be varied simply by virtue of children growing older, there would be an endless stream of applications in every case before the court. This submission was also not consonant with empowering parties to coparent post-divorce.

40     Fourthly, I was of the view that there was no need for an order of shared care and control for A to view both parents as equal stakeholders, or to appreciate the fact that both parents played an equal role in her life[note: 114]. Such views could, and should, be cultivated through functional coparenting and the Parties’ attitudes towards each other; how they gave effect to the court order was important. In this regard, I noted the court’s observations in VJM v VJL:

I had made it clear in TAU v TAT that shared care and control is different from joint custody; the former relates to the child living with both parents, while the latter is about joint decision-making over major decisions affecting the child” (TAU v TAT at [11]). The legal concept that upholds the equal parental responsibility and importance of both parents to the child is “joint custody”. Joint custody requires both parents to recognise and respect each other’s joint and equal role in supporting, guiding and making major decisions for their child. Joint custody assures the child that both her parents continue to be equally present and important in her life.

[emphasis added]

41     In this case, the Parties agreed on joint custody from the outset[note: 115]. Their joint and equal roles in supporting, guiding and making major decisions for A have therefore never been in doubt, and the Father had not demonstrated the necessity of a shared care and control order to achieve this objective. There was also nothing in evidence to suggest that A’s welfare was no longer well served by the current care orders. In fact, according to the Father’s own evidence:

(a)     His access from Thursday to Saturday had not disrupted A’s development and there were no adverse reports from the school; on the contrary, A was growing steadily at school[note: 116].

(b)     A was thriving at every level under the latest arrangements and is growing up nicely[note: 117].

(c)     There were no issues relating to logistics, schoolbooks, clothes, meals, or meetings with the teachers[note: 118].

42     In the circumstances, the Father had not demonstrated how his proposed changes were in A’s welfare and best interests. I was also unable to find evidence which supported the following submissions by the Father –

(a)     His access was treated as a burden that the Mother had to tolerate;

(b)     The Mother did not value his contributions in relation to picking up and dropping off A; and

(c)     the Mother acted unilaterally to curtail his access[note: 119].

43     Next, much fuss was made over Tuesday access, which was designed to be a simple mid-week meet up between father and daughter to share a meal until they met on Thursday for overnight access. Sadly, even this two-hour window caused much spilled ink in the Parties’ affidavits. My view is this: the Father may use the two hours as he sees fit; this is a matter of time management and not a reason to lengthen access, grant overnight access or vary care and control. These are fairly typical mid-week dinner access orders, and the Father had raised nothing in evidence that would justify a variation of these orders.

44     Finally, the Father had not demonstrated how his employment changes gave rise to the necessity to vary the orders. In short, the Father’s evidence and submissions did not support his contentions that A’s welfare was no longer well served by the current orders[note: 120], and I remained unpersuaded that it was in A’s welfare to vary the orders on care and control and access.

Difficulties with the Father’s case

45     I also had several difficulties with the Father’s case. Firstly, the Father relied on several general statements in support of his case. These included the following:

(a)     Shared care and control will prevent the Mother from using the excuse that she can dictate matters, just because she has sole care and control[note: 121].

(b)     An imbalance in equal status between parents may reflect onto the child in a negative manner and can possibly have lasting consequences. Arising from this, it is entirely possible for the child not to give any weight to the views of a non-care and control parent at a time of serious discussion, simply because it has been in-built in the child of divorce that the non-care and control parent is inferior to the other who has sole care and control[note: 122].

(c)     The party with care and control often uses acrimony to thwart meaningful cooperation and retain sole care and control[note: 123].

46     My view is that challenges over meaningful cooperation and the perceived inferiority of the non-care parent arise only from Parties’ conduct, not the language of a court order. These are not reasons to vary care and control. Secondly, I noted the Father’s submission that he had gone out of his way to be civil and respectful by sending the Mother a condolence message when she lost her family member, describing himself as having engaged in a “selfless action by a concerned individual at the passing of a close relative of his ex-wife”[note: 124]. While I appreciate the efforts of the Father, my view is that such communication should have occurred in any event – after all, the person who had passed away was his own daughter’s great-grandmother. The fact that he had to “go out of his way” to communicate with the Mother under such circumstances only serves to demonstrate the challenges still present in the Parties’ relationship.

47     I had the same difficulties with the Father’s description of A’s first day at school as an example of Parties’ cooperation, which he described as “…cooperation exhibited when A was presented on her first day at (her new school). Both Mother and Father were beaming with pride[note: 125]”. I was heartened to learn that the Parties enjoyed this special day with A. However, for divorced parents to put their differences aside for a few hours on the first day of their child’s new school, or to agree on video call timings in lieu of access because their child had Covid[note: 126] - another example of cooperation cited by the Father - represents, in my view, the bare minimum of coparenting; in short, the court would expect nothing less from parents and these are not sufficient reasons, individually or cumulatively, that would constitute a material change in circumstances that would warrant a variation of the care and control order.

48     Thirdly, the language used by the Father in his criticisms of the Mother and her conduct did not inspire confidence in his assertions that Parties were not acrimonious[note: 127]:

(a)     “…the Mother’s arguments … are shrouded in obtuse logic and shallow concerns for A[note: 128]”.

(b)     “… there are lax rules at the Mother’s home and … order and common sense is waning[note: 129]”.

(c)     The Mother’s “constant desire in wanting to limit Father’s access[note: 130]”.

(d)     “..risk facing the wrath of Mother during drop off[note: 131]…”.

(e)     “… Mother uses the delays in handover to intimidate Father with sanctions and threats of reducing access[note: 132]…”.

(f)     “..Mother does not know what suitable care arrangements for A are and is just trying to unnecessarily resist Father’s summons. This unfortunately is the sad reality of the parent with sole care and control – the inability to realise that or to understand that parenting is not a zero-sum game[note: 133]”.

(g)     “…absence of such a holding would embolden Mother to continue pulling wool over the Court’s eyes and to damage A’s upbringing with a misaligned compass[note: 134]”.

(h)     “She has attempted to trigger Father to respond in anger as part of a deliberate tactic to increase acrimony[note: 135]”.

(i)     “She has abused her position as care and control parent…[note: 136]”.

(j)     “…gives me the impression that there is no bond between A and her family in the maternal household, and parties there are just going through a mundane motion in raising a child[note: 137]”.

49     Next, the Father sought to highlight concerns over the Mother’s credibility –

We highlight the inconsistencies within M1A both internally and with reference to her previous affidavits. It gives the Court the impression that she is not sure of her position and is resisting this summons for the sake of resisting it. In the process, she is trying very hard to confuse the court by speaking from both sides of the isle. More importantly, it showcases that Mother has serious credibility issues and confirms the Honourable Court’s findings where DJ Michelle Elias had mentioned in her brief grounds dated 21 Feb 2022, in Father’s previous summons for variation...[note: 138]”

50     In support of this position, the Father relied[note: 139] on the following observations from my earlier decision in the 2nd Variation Order which increased the Father’s weekly overnight access –

The evidence tells disparate stories; according to the Father, overnight access is extremely successful and meaningful for both A and him. According to the Mother, overnight access (indeed, access in general) is a miserable experience for A who does not want to go.

I am unable to agree that the evidence as a whole supports the Mother’s contentions. Similar to my findings in March 2019, I continue to find that both parties (and their families) crave and value their time with A. Everyone involved in her care is genuinely invested in promoting her well-being and success. There is nothing in evidence that suggests that either parent is falling short of their responsibilities or duties towards A: both provide a loving and supporting environment for her in their respective homes.

I maintain the view that A should have the benefit of overnight access to support the development of a meaningful relationship with her father, save that now, it need not be limited to one night a week. The Father clearly wants to be involved in A’s day-to-day and schooling arrangements, and A should have this benefit as well. There is nothing in evidence to suggest why overnight access should not be increased[note: 140].

[emphasis as reproduced in the Father’s written submissions]

51     The 2nd Variation Application was filed with separate affidavits, submissions and considerations. Just because I had previously found the Mother’s contentions to be unsupported by evidence on a specific issue had no bearing on her credibility in general, nor did it amount to “serious credibility issues” as argued by the Father. For these additional reasons, I remained unpersuaded that the Ancillary Order and 2nd Variation Order ought to be varied.

Prohibitionary orders

52     The Mother denied smoking in front of A[note: 141], and I did not consider it appropriate to make orders on this. Whether to smoke, including whether this should be done in front of A, are issues that should correctly be addressed as part of functional coparenting. As for vaping, this is an act governed by other laws applicable in Singapore; it was therefore unnecessary to provide for them in my orders.

53     The Father also sought a specific order prohibiting the Mother from referring to her male counterparts[note: 142] or her relationships with men[note: 143] as “sugar daddies” when speaking to A. The Mother explained[note: 144] the context in which this comment was made, namely, that it was a joke referencing the acquisition of luxury cars, inadvertently shared in A’s presence, and intended as light-hearted banter[note: 145]. I agreed with the Mother that the one-off use of the term did not mean she was an unfit parent[note: 146], nor was it a reason to vary care and control or grant an order preventing her from uttering these words again.

54     Finally, the Father sought an order that bound persons who are not party to these proceedings without providing a basis for the court to make such orders. I therefore dismissed all prayers seeking orders of this nature.

Deepavali access

55     While the Father did not appeal against the orders on Deepavali access, I considered it appropriate to make mention of this, as it was part of the orders made in the current application that gave rise to this appeal. Essentially, separate Deepavali access was not previously ordered in the Ancillary Order on the premise that each parent would see A in alternating years arising from the reckoning of Public Holiday access. This arrangement did not develop as anticipated after A started Primary School due to the longer stretch of primary school holidays, as compared with preschool holidays, which resulted in the Father missing out on Deepavali access for two years[note: 147].

56     Having been satisfied of the material change in circumstances, and that there remained a dispute over this issue, I made the following Deepavali orders to ensure both parents see A on Deepavali, irrespective of whether it was their ‘turn’ to spend the Deepavali Public Holiday with A.

-     For Deepavali, the parent who does not have Public Holiday access with A on Deepavali is to have dinner access with A instead from 6:30pm to 8:30pm.

Video access

57     I was unable to agree with the Father’s submission that there had been a material change in circumstances warranting the inclusion of a video call access order. I maintained the views expressed in my earlier decision in granting the 2nd Variation Order, namely, that I did not consider such orders necessary for the following reasons:

(a)     The Parties should have the ability to spend uninterrupted blocks of time each week with A.

(b)     Orders mandating video calls could, in my view, form the basis for further misunderstanding and disagreements between the Parties.

(c)     Video calls were not necessary in this case. This was not a case where one parent does not see A for an extended period of time.

58     Finally, just as with any other type of access, Parties are at liberty to discuss and agree on any additional terms, including video access.

Conclusion

59     The Parties’ coparenting relationship requires improvement, including positive affirmation by the parent of the other parent in the roles that they play in A’s life. Efforts should also be made take over ownership over the coparenting process and put differences aside for A’s benefit. After considering Parties’ submissions on costs, I ordered costs of the Father’s application fixed at $3,800, all in, payable by the Father to the Mother.

_________________________________

Annex 1: The Ancillary Order

1.     By consent, the Husband and Wife shall have joint custody of the Child.

2.     The Wife shall have care and control of the Child with reasonable access to the Husband as follows:

a)     every Monday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

b)     every Wednesday from 6:30 p.m. to 8:30 p.m. (including dinner for the Child);

c)     every Friday from 6:30 p.m. to Saturday 6:30 p.m. (overnight access);

d)     every Father’s Day from 10:00 a.m. to 8:00 p.m.;

e)     every birthday of the Husband, from 10:00 a.m. to 8:00 p.m.;

f)     every alternate Public Holiday from 10:00 a.m. to 8:00 p.m. (commencing Good Friday 2019).

3.     The Husband shall pick up and drop off the Child at the Wife’s residence before/ after access.

4.     The Wife and Husband shall each have an unbroken block of time with the Child for half of each of her school holidays. The parties shall be at liberty to discuss and agree on the split of the school holidays, but in default of any agreement the Husband shall have the first half of each such holiday in odd years (i.e. with effect from 2019) and the second half in even years (i.e. with effect from 2020).

5.     The Wife and Husband shall be allowed, subject to the consent of the other parent and such consent not to be unreasonably withheld, to bring the child overseas during her school holidays. The party intending to travel shall furnish the other party with the travel itinerary and relevant contact details at least 3 weeks before the commencement of the travel.

6.     Where there is a clash in the provisions above, the order of priority, in descending order, shall be as follows:

a)     School holiday arrangements;

b)     Public holiday arrangements. Where the public holiday falls within a school holiday, the affected public holiday shall not be counted in the reckoning of alternate public holidays; and

c)     Regular weekly arrangements.

7.     The Wife shall update the Husband on events / appointments at the Child’s school, including Parent-Teacher Meetings, school concerts and other meetings / events which would normally require the attendance of at least one parent. Notwithstanding that the Wife is the parent having care and control of the Child, the Husband should always have the option of attending these appointments / events in the spirit of joint parenting. The Husband may also approach the Child’s school directly for particulars in respect of such meetings/ events.

8.     In the event that the Child is unwell during the Husband’s access times, the Husband is allowed to visit the Child at the Wife’s residence for up to 30 minutes.

9.     The Parties shall be at liberty to:

a)     vary the care arrangements under this order by mutual agreement;

b)     agree to any other additional or make-up access as they see fit.

10.    The Wife and Husband shall attend counselling at DSSA.

11.    The Husband shall pay the monthly sum of $770 to the Wife as maintenance for the Child with effect from 1 April 2019 and thereafter on the 1st day of each subsequent month.

12.    In addition, the Husband shall also be responsible for:

a)     67% of the Child’s school fees;

b)     67% of enrichment classes and/or extra-curricular activities. Such enrichment classes and/or extra-curricular activities shall be discussed and agreed between the Parties;

c)     100% of all insurance premiums for the Child;

d)     100% of all medical expenses for the Child, with the use of his civil service card. The Husband shall pay the cash portion of the difference, after the necessary discounts are applied using his card.

13.    There shall be no maintenance for the Wife.

14.    All maintenance payments shall be deposited directly into the Wife’s POSB Account No. xxx.

15.    In respect of the matrimonial home, the following orders are made:

a)     Within 3 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Wife with no CPF refunds to be made to the Husband’s CPF account and no cash consideration to the Husband. The Wife shall bear the costs of the transfer and take over the outstanding mortgage.

b)     If, for whatever reason, the Wife is unable to take over ownership of the matrimonial property in the terms above, then within 6 months of the Final Judgment, the matrimonial flat/property shall be transferred (other than by way of sale) to the Husband upon the Husband making the full required CPF refunds to the Wife’s CPF account. The Husband shall:

i.       bear the costs of the transfer

ii.       take over the outstanding mortgage; and

iii.       pay the Wife a cash portion equivalent to the difference between $127,754 and her full CPF refunds.

c)     If, for whatever reason, neither party is able or willing to take over ownership of the flat, then within 9 months of the Final Judgment, the matrimonial home shall be surrendered to the HDB. Any losses shall be apportioned between the Parties in accordance with the prevailing HDB/CPF rules and regulations.

16.    The Registrar or Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

17.    Each party shall retain all other assets in their respective names.

18.    No order as to costs.

19.    Liberty to apply.

[note: 1]See Annex 1 for the full terms of the Ancillary Order.

[note: 2]HCF/DCA 38/2019 and HCF/DCA 39/2019.

[note: 3]FC/SUM 4267/2019.

[note: 4]FC/SUM 1643/2021.

[note: 5]Dated 25 March 2019.

[note: 6]F2, para 2, S/No. 1.

[note: 7]Dated 21 February 2022.

[note: 8]F2, para 2, S/No. 2.

[note: 9]F2, para 2, S/No. 3.

[note: 10]F2, para 2, S/No. 4.

[note: 11]Written decision rendered pursuant to Rule 670 of the Family Justice Rules via Registrar’s Notice dated 6 February 2024.

[note: 12]Per the Notice of Appeal filed on 27 February 2024.

[note: 13]Father’s written submissions, para 10.

[note: 14]Father’s written submissions, para 44.

[note: 15]Father’s written submissions, para 44.

[note: 16]Father’s written submissions, para 21.

[note: 17]Father’s written submissions, para 26(c).

[note: 18]Father’s written submissions, para 26(a).

[note: 19]Father’s written submissions, para 26(b).

[note: 20]Father’s written submissions, para 22.

[note: 21]Father’s written submissions, para 26(d).

[note: 22]Father’s written submissions, para 26(f).

[note: 23]Father’s written submissions, para 26(e).

[note: 24]Father’s written submissions, para 27.

[note: 25]Father’s written submissions, para 25.

[note: 26]Father’s written submissions, para 28.

[note: 27]Father’s written submissions, para 28.

[note: 28]Father’s written submissions, para 30.

[note: 29]Father’s written submissions, para 29.

[note: 30]Father’s written submissions, para 21.

[note: 31]Father’s written submissions, para 31.

[note: 32]Father’s written submissions, para 33(a).

[note: 33]Father’s written submissions, para 33(b).

[note: 34]Father’s written submissions, para 34.

[note: 35]Father’s written submissions, para 36.

[note: 36]Father’s written submissions, para 36.

[note: 37]Father’s written submissions, para 37.

[note: 38]Father’s written submissions, para 38.

[note: 39]Father’s written submissions, para 39.

[note: 40]Father’s written submissions, para 40.

[note: 41]Father’s written submissions, para 40.

[note: 42]Father’s written submissions, para 48.

[note: 43]Father’s written submissions, para 45 – 7.

[note: 44]Father’s written submissions, para 49.

[note: 45]Father’s written submissions, para 50.

[note: 46]Father’s written submissions, para 51.

[note: 47]Father’s written submissions, para 54.

[note: 48]Father’s written submissions, para 62.

[note: 49]Father’s written submissions, para 77.

[note: 50]Mother’s written submissions, para 8.

[note: 51]Mother’s written submissions, para 7.

[note: 52]Mother’s written submissions, para 80.

[note: 53]Mother’s written submissions, para 25.

[note: 54]Mother’s written submissions, para 26.

[note: 55]Mother’s written submissions, para 30.

[note: 56]Mother’s written submissions, para 30.

[note: 57]Mother’s written submissions, para 15.

[note: 58]Mother’s written submissions, para 5.

[note: 59]Mother’s written submissions, para 6.

[note: 60]Mother’s written submissions, para 27.

[note: 61]Mother’s written submissions, para 82.

[note: 62]Mother’s written submissions, para 16.

[note: 63]Mother’s written submissions, para 81.

[note: 64]Mother’s written submissions, para 81.

[note: 65]Mother’s written submissions, para 38.

[note: 66]Mother’s written submissions, para 95.

[note: 67]Mother’s written submissions, para 29.

[note: 68]Mother’s written submissions, para 31.

[note: 69]Mother’s written submissions, para 32.

[note: 70]Mother’s written submissions, para 34.

[note: 71]Mother’s written submissions, para 35.

[note: 72]Mother’s written submissions, para 39.

[note: 73]Mother’s written submissions, para 40.

[note: 74]Mother’s written submissions, para 69.

[note: 75]Mother’s written submissions, para 65.

[note: 76]Mother’s written submissions, para 40.

[note: 77]Mother’s written submissions, para 41.

[note: 78]Mother’s written submissions, para 46.

[note: 79]Mother’s written submissions, para 47.

[note: 80]Mother’s written submissions, para 48.

[note: 81]Mother’s written submissions, para 50.

[note: 82]Mother’s written submissions, para 46.

[note: 83]Mother’s written submissions, para 45.

[note: 84]Mother’s written submissions, para 60.

[note: 85]Mother’s written submissions, para 62.

[note: 86]Mother’s written submissions, para 42.

[note: 87]Mother’s written submissions, para 106.

[note: 88]Mother’s written submissions, para 109.

[note: 89]Mother’s written submissions, para 108.

[note: 90]Mother’s written submissions, para 64.

[note: 91]Mother’s written submissions, para 112.

[note: 92]Mother’s written submissions, para 70.

[note: 93]Mother’s written submissions, para 71.

[note: 94]Mother’s written submissions, para 44.

[note: 95]Mother’s written submissions, para 52.

[note: 96]Mother’s written submissions, para 52.

[note: 97]Mother’s written submissions, para 81.

[note: 98]Mother’s written submissions, para 114.

[note: 99]Mother’s written submissions, para 114.

[note: 100]The applicability of s.128 was not disputed; see Father’s written submissions, para 7 and Mother’s written submissions, para 73.

[note: 101]Father’s written submissions, para 14.

[note: 102]at [15], [16], [21] and [23].

[note: 103]Mother’s Notice of Objection.

[note: 104]F1, page 90 – 98; F3, page 40.

[note: 105]F1, para 25.

[note: 106]F3, para 21.

[note: 107]Father’s written submissions, para 26(b).

[note: 108]Father’s written submissions, para 27.

[note: 109]Father’s written submissions, para 26(a).

[note: 110]Father’s written submissions, para 26(b).

[note: 111]Father’s written submissions, para 44.

[note: 112]Father’s written submissions, para 41.

[note: 113]Father’s written submissions, para 44.

[note: 114]Father’s written submissions, para 30.

[note: 115]As reflected in the Ancillary Order.

[note: 116]Father’s written submissions, para 24.

[note: 117]F1, para 10.

[note: 118]Father’s written submissions, para 24.

[note: 119]Father’s written submissions, para 28.

[note: 120]Father’s written submissions, para 21.

[note: 121]Father’s written submissions, para 28.

[note: 122]Father’s written submissions, para 29.

[note: 123]Father’s written submissions, para 25.

[note: 124]Father’s written submissions, para 50.

[note: 125]Father’s written submissions, para 51.

[note: 126]Father’s written submissions, para 46.

[note: 127]Father’s written submissions, para 26(b).

[note: 128]Father’s written submissions, para 102.

[note: 129]F1, para 28.

[note: 130]Father’s written submissions, para 36.

[note: 131]Father’s written submissions, para 36.

[note: 132]Father’s written submissions, para 37.

[note: 133]Father’s written submissions, para 104.

[note: 134]Father’s written submissions, para 108.

[note: 135]Father’s written submissions, para 109.

[note: 136]Father’s written submissions, para 110.

[note: 137]F1, para 37.

[note: 138]Father’s written submissions, para 84.

[note: 139]As reproduced in the Father’s written submissions, para 84.

[note: 140]Father’s written submissions, para 84.

[note: 141]M1, para 68 – 69.

[note: 142]Father’s written submissions, para 77.

[note: 143]Prayer 3, FC/SUM 1702/2023.

[note: 144]Mother’s written submissions, para 52.

[note: 145]M1, para 74.

[note: 146]M1, para 75.

[note: 147]Father’s written submissions, para 69.

"},{"tags":["Family Law – Riddick undertaking","Family Law – Jurisdiction – Property legally owned by third party","Family Law – Procedure – Leave to file third ancillary affidavit"],"date":"2024-05-15","court":"Family Court","case-number":"D 1206/2020 (FC/RA 1/2024)","title":"WWK v WWL","citation":"[2024] SGFC 25","url":"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%2F31499-SSP.xml","counsel":["Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff","Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant"],"timestamp":"2024-05-21T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWK v WWL

WWK v WWL
[2024] SGFC 25

Case Number:D 1206/2020 (FC/RA 1/2024)
Decision Date:15 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Wang Lian Sheng and Ms Petrina Tan Heng Kiat (Bih Li & Lee LLP) for the Plaintiff; Mr Randolph Khoo and Ms Brenda Kong (Drew & Napier LLC) for the Defendant
Parties: WWK — WWL

Family Law – Riddick undertaking

Family Law – Jurisdiction – Property legally owned by third party

Family Law – Procedure – Leave to file third ancillary affidavit

15 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”.

2       FC/RA 1/2024 (“RA 1”) is the Husband’s appeal against the decision of the learned Assistant Registrar Adriene Cheong (“the AR”) given on 16 February 2024 in respect of FC/SUM 3414/2023 (“SUM 3414”) and FC/SUM 92/2024 (“SUM 92”).[note: 1]

3       RA 1 was filed on 26 February 2024.[note: 2]

4       On 27 February 2024, the AR made costs orders in respect of both applications. To obviate the need for the Husband to file a further Notice of Appeal on the costs orders, parties agreed that the Husband’s appeal against the costs orders be heard under RA 1.[note: 3]

5       On 22 April 2024, having carefully considered the submissions and the affidavits, I dismissed the Husband’s appeal with costs fixed at $5,000 (all in) to the Wife.

6       As the Husband has appealed against my decision vide HCF/RAS 6/2024 filed on 25 April 2024, I now set out the grounds of my decision.

SUM 3414

7       In SUM 3414, the Husband applied for the following orders:

a)     Leave be granted to the Husband to be released from any implied undertaking not to use the documents and information as set out in Annex A for any other purposes apart from the proceedings in Divorce Action FC/D 1206/2020 (“Prayer 1”);

b)     Following any order made on Prayer 1 above, the Husband may consequently be permitted to use the documents and information as set out in Annex A for the purpose of related proceedings in the General Division of the Hight Court, to determine the true beneficial ownership of [Property A][note: 4] (“Prayer 2”);

c)     The costs of this application be in the cause in the Divorce Action FC/D 1206/2020; and

d)     Such further and other reliefs as this Honourable Court deems fit.

The Husband’s position

8       In his Supporting Affidavit filed on 2 November 2023, the Husband avers that this is an application for leave to use certain documents disclosed by the Wife in the divorce proceedings in an intended fresh civil suit to be filed in the General Division of the High Court (“Related HC Proceedings”) to determine the true beneficial ownership of Property A.

9       The Husband says that pursuant to the order dated 4 August 2022 requiring the Wife to answer interrogatories in relation to Property A,[note: 5] the Wife gave her answers in an affidavit filed on 13 October 2022[note: 6] where she stated, among other things, that her now deceased father (the “Late Mr [T]”) had allegedly purchased Property A with the assistance of a friendly loan from one [CGK][note: 7], and the loan was extended to the Late Mr T and the Wife as borrowers.[note: 8] The Wife also stated that she did not contribute towards the payment or acquisition of Property A.[note: 9]

10     The Husband believes that the Wife’s account of Property A having been paid for entirely by the Late Mr T is false and inaccurate.[note: 10] He believes that the Wife has attempted to hide the fact that she has all along been the true beneficial owner of Property A in an obvious effort to exclude Property A from the matrimonial pool for division.[note: 11] The Husband believes that Property A was always held by the Late Mr T on trust for the Wife from the time it was purchased.[note: 12] He alleges that the Wife contrived that the Late Mr T would create by will, a purported bequest of Property A back to her in a scheme to also avoid having to pay for Additional Buyer’s Stamp Duty.[note: 13]

11     The Husband says that the Late Mr T never lived at Property A. It was instead the Wife who has been residing rent-free at Property A since October 2019.[note: 14] The tenancy agreements entered into between the Wife and the Late Mr T were therefore sham agreements.[note: 15]

12     The Husband says that as a result of the parties having differing and irreconcilable positions on whether the Wife or the Late Mr T was the true beneficial owner of Property A from the time it was purchased, he intends to commence the Related HC Proceedings to determine the beneficial ownership of Property A.[note: 16]

13     The Husband believes that various documents and information that the Wife has disclosed in her 1st Affidavit of Assets and Means (“AOM”), 13 October Affidavit, 8 February Affidavit, and her 2nd AOM (the “Disclosed Documents and Information”) will need to be used and referred to in the Related HC Proceedings.[note: 17] The relevance of each of the Disclosed Documents and Information towards the Related HC Proceedings is set out in Annex A.[note: 18]

14     The Husband says that the Related HC Proceedings would avoid a situation where any order made by the Family Justice Court in proceedings to divide matrimonial assets (having only force between the parties to the marriage) will not bind any third party who may have an interest in the matrimonial property that is being divided and expose the divided property to future litigation and claims in separate proceedings.[note: 19] The Disclosed Documents and Information would allow the High Court to have before it very relevant evidence that would enable the High Court to properly and fairly determine whether Property A was all along beneficially owned by the Wife and hence a matrimonial asset.[note: 20]

15     The Husband believes that the application is a necessary pre-requisite to his filing of proceedings at the High Court to determine the true beneficial ownership of Property A from the time of its purchase.[note: 21]

The Wife’s position

16     The Wife says that SUM 3414 is unnecessary and/or premature if the Husband’s intended action in the High Court involves her.[note: 22] If she is a party to the intended High Court civil action, there are obligations imposed on her during such court proceedings.[note: 23]

17     The Wife vigorously objects to the Husband’s allegations that she has provided false and inaccurate account of Property A having been paid entirely by her late father.[note: 24]

18     The Wife says that Property A was purchased in her father’s sole name. Her father was the party who had taken a friendly loan from CGK for the purchase of the property. [note: 25] The Wife’s father had requested the Wife to assist him with the payments for the property as he was getting on years and may not be able to attend at banks and wait long hours to purchase cashier’s orders for the purchase of the property.[note: 26]

19     The Wife says that her father passed away on 30 August 2022. Pursuant to his Last Will and Testament dated 3 June 2021, her father had given and bequeathed Property A to her.[note: 27] The Wife believes that in the administration of her late father’s Estate, Property A would be transferred to her pursuant to her father’s will. Given that she is a party of the divorce proceedings, any orders made in relation to Property A would bind her as a party to the action and the party who inherited the property.[note: 28]

20     The Wife says that there would be prejudice to her in the event that the court grants the orders the Husband is seeking.[note: 29] The Husband ought not to be allowed to make a frivolous claim against the Estate of her late father or the Wife based on information he had obtained from the divorce proceedings.[note: 30]

21     The Wife says that the Husband has acted with a vendetta and has been needlessly aggressive against her throughout the proceedings.[note: 31] As the High Court action would be an open trial proceedings, the Wife is concerned about what the Husband would be alleging in these proceedings and how he would utilise the documents provided, some of which are private and confidential in nature.[note: 32]

22     The Wife says that the divorce was commenced in March 2020 and more than four years have passed since then. The Husband has had a change of five sets of solicitors, his present set of lawyers being the sixth set.[note: 33] The Husband has gone to great lengths, including making intrusive and invasive requests for documents and information relating to the probate of the Wife’s late father, while there remain other options which would adequately address the Husband’s key concern, i.e. whether the value of Property A should be included in the matrimonial pool.[note: 34]

23     The Wife says that the Husband continually insists on prolonging the proceedings and aggravating the acrimony between parties.[note: 35] The Wife refers to an earlier appeal filed by the Husband vide FC/RA 1/2023 where I made the observations that the Husband had elected a procedural route that was needlessly more aggressive and acrimonious when a far less confrontational option existed that was equally capable of protecting his legal interests. The Wife also makes reference to the observations of Lai Siu Chiu J in the Husband’s further appeal vide HCF/RAS 4/2023 where the learned judge noted that the Husband was motivated by malice and ill will.[note: 36]

24     The Wife submits that the issue of the beneficial ownership of Property A can be property determined at the ancillary matters hearing, and there is no need for separate proceedings to be taken out for this issue.[note: 37] The matrimonial pool is sufficiently large to accommodate the distribution of matrimonial assets without needing to make an order directly affecting Property A, if it is later found to be a matrimonial asset.[note: 38]

The AR’s decision

25     The AR noted that the orders sought by the Husband are extremely wide. The AR noted that the Husband has asked to be allowed to use the listed documents for “any other purposes apart from the divorce proceedings”, which would effectively mean that there was no limit to the manner the documents may be used.[note: 39] The AR found that the Husband’s prayer is unnecessarily broad and unidentified, and it would not be reasonable for such an order to be granted.[note: 40]

26     The AR noted further that the Wife herself has stated that once the probate is completed, legal title with vest with her. There is hence no necessity for a separate civil suit in the High Court to determine either legal or beneficial interest of Property A.[note: 41]

27     Further, the Husband has not yet commenced the related proceedings, and the specific claims have not been set out. This is the “unclear” as to the collateral purpose of the suit.[note: 42] The burden of proof, as noted by the AR, lies with the Husband.[note: 43]

28     The AR found that the High Court proceedings are unnecessary, and this ground alone was sufficient to dismiss the Husband’s application.[note: 44] The AR noted further that in the context of matrimonial cases where proceedings are held in camera, it is important to apply a strict approach to any application for waiver to avoid a situation where disclosure in private personal proceedings are used for ulterior purposes.[note: 45]

Analysis

29     A judge hearing a Registrar’s Appeal exercises confirmatory jurisdiction, as opposed to appellate jurisdiction. Although I may accord appropriate weight to the AR’s decision, I am not bound by the manner in which she exercised her discretion.

30     As noted in the recent decision of the High Court in Third Eye Capital Corp v Pretty View Shipping SA and others [2024] SGHC 96 (“Third Eye”), a party who discloses a document in an action under compulsion is entitled to the protection of the court against any use of the document otherwise than in that action. [note: 46] This rule, known as the “Riddick principle”, is derived from the case of Riddick v Thames Board Mills Ltd [1977] 1 QB 881, where Lord Denning MR explained its rationale as follows:

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. … The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e., in making full disclosure.

…

On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of April 16, 1969, to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else —to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.

31     As noted in Third Eye (at [9]) citing the Court of Appeal (“CA”)’s decision in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584, situations involving the Riddick principle may broadly be classified under three categories:

a)     First, it must be determined if a document is produced, or information furnished, out of compulsion. If so, it is covered by the Riddick undertaking. If not, the document or information may be used without the permission of the court.

b)     Second, if the Riddick undertaking applies, the question is whether the protected document or information may nonetheless be used without permission due to the nature of the related enforcement proceedings for which it is being used.

c)     Third, if neither of the above is satisfied, the party relying on the protected document or information to commence or sustain related proceedings must seek the court’s permission for the undertaking to be lifted.

32     In the present case, the Husband accepts that he is bound by the Riddick undertaking. As such, the Husband filed SUM 3414 praying to be released from the Riddick undertaking for the purpose of being permitted to start the Related HC Proceedings.[note: 47]

33     The Husband clarifies that Prayer 1 of SUM 3414 is not an application to be released from the Riddick undertaking in order to use the Disclosed Documents and Information for a limitless number of undefined extraneous purposes.[note: 48] The Husband says that Prayer 1 is simply a description of the nature of the Riddick undertaking that he was trying to be released from[note: 49] and is specifically limited by Prayer 2, which refers to the related proceedings in the General Division of the High Court to determine the true beneficial ownership of Property A.[note: 50] The Husband says that he has consistently made clear in his Supporting Affidavit that this is the sole purpose in filing SUM 3414.[note: 51]

34     Given the clarifications provided by the Husband, the central issue before me is whether permission should be granted for the undertaking to be lifted for the sole purpose of enabling the Husband to start the related proceedings in the General Division of the Hight Court to determine the true beneficial ownership of Property A.

35     The law, in this regard, was helpfully summarised in Third Eye as follows:

25    In determining whether permission should be granted, the Court embarks on a balancing exercise to assess “whether the circumstances are such as to justify the lifting of the Riddick undertaking” (Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (“Amber Compounding”) at [69]).

26    The Court of Appeal in Amber Compounding highlighted five (non- exhaustive) factors which may be raised in favour of lifting the Riddick undertaking (at [71]), of which the only relevant one here is that the EJD Information is to be used to support related foreign civil proceedings.

27    The factors in favour of granting permission are then to be balanced against the interests sought to be protected by the Riddick undertaking, namely the public interest in encouraging full disclosure and the disclosing party’s privacy interests. Factors which militate against the grant of permission include (Amber Compounding at [72]):

(a)    injustice or prejudice to the disclosing party – however, where no irremediable prejudice is demonstrated, this factor may be accorded little weight;

(b)    improper purpose for which permission is sought – the court has a general concern to control the collateral use of disclosed documents; and

(c)    privilege against self-incrimination – which is not engaged in the present case.

28    Ultimately, the test is whether “if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweigh the interests that are protected by the Riddick undertaking” (Amber Compounding at [46]).

36     The Husband says that SUM 3414 is necessary given that the matrimonial jurisdiction of the Family Justice Court cannot be exercised to decide the legal rights of third parties, based on the CA’s decision in UDA v UDB and another [2018] 1 SLR 1015 (“UDA”).[note: 52]

37     In UDA, the CA noted (at [51]) that there are four possible situations in which property may come before a court that is hearing an ancillary matters proceeding:

a)     the property is accepted as a matrimonial asset, having been acquired jointly by the spouses or solely by one of them, and the only question is how it should be divided;

b)     the property is in the name of one of the spouses and the issue is whether the circumstances of its acquisition render it a matrimonial asset;

c)     the property is in the name of one of the spouses who claims to be holding it in trust for a third party, whilst the other spouse disputes this and contends that the property belongs beneficially to the legal owner and is therefore a matrimonial asset; and

d)     the property is in the name of a third party but one or both spouses claims that it is a matrimonial asset because the third party is holding the whole or part of the property on trust for one or both spouses.

38     The CA noted (at [56]) that the following options are available if the property is legally owned by a third party:

a)     First, the spouse who claims the property to be a matrimonial asset may obtain legally binding confirmation from the third party that this is so and an undertaking that the third party would respect and enforce any order that the court may make relating to the beneficial interests in the property.

b)     If this is contested, either that spouse or the other who is asserting that the property belongs beneficially to the third party would have to start a separate legal action to have the rights in the property finally determined, vis-à-vis the third party, in which case the s 112 proceedings would have to be stayed until the rights are determined. This would be Option 2.

c)     The third possibility would be for the spouse to drop his or her claim that the property is a matrimonial asset and allow the s 112 proceedings to continue without it.

d)     Alternatively, that spouse may ask the court to determine whether the asset is a matrimonial asset without involving the third party’s participation at all or making an order directly affecting the property. This is Option 1.

39     With respect to Option 1, the CA provided the following guidance:

57     In respect of [56(d)] above, the family justice court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to prejudice the spouse who has had to account to the other for the value of an item of property which turns out not to be a matrimonial asset. By the time of the separate action the s 112 proceedings may have completed and no adjustments may be possible to reflect the decision made in the third party’s separate proceedings. If both spouses do not agree to Option 1 in this situation, then directions would have to be given regarding the taking of separate proceedings against the third party and Option 2 would come into play. We should add that Option 1 would not be viable if the disputed asset is the main or only substantial asset available for division.

58    The other situation is where the property is in the name of one of the spouses and the third party is a “shadowy” figure in the wings whom that spouse claims has an interest in the property but no order is sought by or against the third party directly. In such a case, because no order is sought by or against the third party, it is permissible for the court to make an order exercising its powers under s 112 because the only parties directly affected by the order will be the parting spouses. This, again, is an Option 1 course. The choice of Option 1 would have the same risks for the spouses as alluded to in [57] above. Thus, for instance, the spouse in whose name the property stands, having been ordered to share the value of the property with the other spouse, may later find he or she has to account to the third party for such value or to transfer the property outright to the third party. This is because the determination of the ownership of the disputed property in the s 112 proceedings will not bind the third party who may challenge it in separate proceedings. But that is the risk the spouse takes by not seeking an order that will bind the third party. Once such an order is sought, in our view, this would be the same situation as discussed in [56(b)] above and a separate set of proceedings would have to be issued.

[emphasis in bold added]

40     The Husband, through his solicitors, sought clarification from the Wife vide their letter dated 27 October 2023, on whether the Wife, in her personal capacity and her capacity as a Personal Representative (“PR”) of the Estate of the Late Mr T, continues to maintain her position that Property A is an inheritance and not a divisible matrimonial asset and whether the other PR, Ms [TYS], aligns herself with the Wife’s position.[note: 53] In their reply dated 30 November 2023, the Wife’s solicitors indicated that they have not been instructed to act for the PRs of the Estate of the Late Mr T, but they have been instructed to act for the Wife in respect of the High Court action.[note: 54]

41     The Husband contends that with the passing of the Late Mr T, the Executrices of his will, the Wife and her sister, are required to first administer the Estate. The PRs of an estate as well as the Estate of the Late Mr T are each considered at law to be third parties as far as D 1206 goes. Until all debts and liabilities of the Estate have been settled, no named beneficiaries of any property bequest can legally claim to have a beneficial interest in that property.

42     The Husband contends that the Executrices have steadfastly refused to disclose the progress of the probate. The Wife in her personal capacity also chose not to be helpful with disclosing the progress of the probate and avoiding the need for the Husband’s application. The Husband therefore has to start the Related HC Proceedings to determine whether the full beneficial interest to Property A has always belonged to the Wife or the Late Mr T since the current position is that there are third parties disputing that Property A is matrimonial property.[note: 55]

43     The Wife submits that there is no real dispute over who the beneficial interest in Property A will ultimately devolve to, and the Estate of the late Mr T is not a third party who has asserted beneficial ownership of Property A. Hence, separate proceedings in the General Division to determine the true beneficial ownership of property would be wholly unnecessary.[note: 56]

44     In light of the Wife’s submissions, it would be necessary to refer to Ong Wui Teck (personal representative of the estate of Chew Chen Chin, deceased) v Ong Wui Swoon and another and another appeal [2019] SGCA 61 where the CA summarised the principles regulating the interests of beneficiaries of an estate as follows:

64    In our judgment, a personal representative ceases to be an executor and administrator only after all the assets of the estate have been vested in the personal representative, and the estate has been fully administered: see G Raman, Probate and Administration in Singapore and Malaysia (LexisNexis, 4th Ed, 2018) at para 12.19. This involves, inter alia, getting in all the assets of the estate, paying for any funeral, testamentary and administrative expenses, and satisfying all outstanding debts against the estate. As trustee, the personal representative then becomes concerned with the problems of distribution of the administered estate among the persons entitled: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Alexander Learmonth et al gen eds) (Sweet & Maxwell, 21st Ed, 2018) (“Williams, Mortimer and Sunnucks”) at para 65-05. …

65     Once an executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate, he should then “assent” to the legacy. This is explained by the learned authors of Williams, Mortimer and Sunnucks at para 76-01 (see also Arthur Dean, “When Does an Executor become a Trustee?” (1935-1938) 1 Res Judicatae 92 at p 93):

An assent has been described as an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.

As has been shown all real and personal property to which a deceased person was entitled for an interest not ceasing on his death, now devolves upon his representatives. They are responsible for the satisfaction of the deceased’s debts to the extent of the whole estate, even though the testator may have directed that a portion of it should be applied to other purposes. In view of this liability they should not distribute any portion of the deceased’s estate until satisfied that such debts have been actually paid or are adequately secured, or can be paid without recourse to that portion of the estate. The personal representatives are protected against competing claims by the principle that the beneficiaries’ title to the deceased’s property, whether devisees, legatees or persons entitled on intestacy, is not complete until some act of the representatives themselves makes it so. This act, according to the circumstances, is either an assent or a conveyance, and until it has taken place the administration continues.

66     It follows that before the debts and liabilities of the estate have been fully settled, the beneficiaries to the will cannot claim to have a beneficial interest in the assets of the estate, since some of the assets may have to be used in satisfaction of the said debts and liabilities. Therefore, if the beneficiaries do not have an equitable interest in the assets of the Estate, the personal representative cannot be regarded as a trustee over those assets. …

[emphasis added]

45     It is clear from the above passages that a beneficiary’s title to a deceased’s property is not complete until the executor decides that he no longer requires the estate’s assets for the satisfaction of the liabilities of the estate and assents to the legacy. Until then, the beneficiary cannot claim to have a beneficial interest in the property.

46     In VIK v VIL [2020] SGHCF 12, the court noted (at [53]) as follows:

The question of whether an assent exists is a fact-sensitive one, since an assent may be informal and may also be inferred from conduct: Seah Teong Kang at [27]. In respect of Property 1 and Property 2, there is no evidence of any assent on the part of the Administrator, and none of the parties have sought to argue as such. It follows that both Property 1 and Property 2 are not held on trust by the Administrator, and the appropriate regime of law is that which applies to execution and administration of an estate.

47     In the present case, the Wife has not provided evidence of any assent and neither has she argued as such. In the absence of such evidence, the Wife cannot claim to have a beneficial interest in Property A qua beneficiary of her father’s will. In addition, there is no evidence to show that the debts and liabilities of the Estate have been fully settled. It would not be correct, as a matter of law, to assume that the beneficial interest in Property A will ultimately devolve to her.

48     In the circumstances, the facts of the present case fall within the situation described in paragraph 51(d) of UDA, i.e. the property is in the name of a third party (i.e., the Estate of Mr T) but one spouse (the Husband) claims that it is a matrimonial asset because the third party is holding the whole of the property on trust for the other spouse (the Wife).

49     Since Property A is legally owned by a third party, there are two options under paragraph 56 of UDA that come into play: “Option 1” (UDA at [56(d)]) and “Option 2” (UDA at [56(b)]). The other two options listed in paragraph 56 are not engaged on the facts of the case.

50     The Wife submits that Option 1 would be the most straightforward, expeditious and cost-effective way forward for parties.[note: 57] Under this option, the Family Justice Court may determine whether the asset is a matrimonial asset without involving the third party’s participation or making an order directly affecting the property. In other words, there would be no necessity for the Husband to start a separate legal action to have the rights in the property determined, vis-à-vis the third party, nor is there a need to stay the s 112 proceedings until the rights are determined, as would be the case if Option 2 is adopted.

51     As noted in UDA (at [57]), the Family Justice Court should only take Option 1 if both spouses agree to it, as this course could result in the disputed asset being treated as a matrimonial asset and adjustments being made in the division of other assets to account for its value when in separate proceedings later it may be determined that the third party was both the legal and the beneficial owner of the property and neither spouse had any interest in it at all. Thus, the result of taking Option 1 may be to the prejudice of the spouse who has to account to the other for the value of an item of property which turns out not to be a matrimonial asset.

52     In the present case, the Wife has opted for Option 1 even though she is the party who may be prejudiced by this course of action since she is the one who has to account for the value of Property A. In contrast, the Husband does not bear such risk. So long as both parties agree, the question whether Property A is a matrimonial asset can be appropriately determined in the ancillary matters hearing without the need for the Husband to commence separate civil action at all. Clearly then, the only obstacle to Option 1 is the Husband’s refusal to agree to it.

53     The Husband has highlighted concerns that (i) any orders made by the Family Justice Court in proceedings to divide assets in the divorce proceedings will not bind third party including the PRs of the Estate who may have an interest in a matrimonial asset that is being divided, and (ii) any determination of ownership of a property, to which beneficial ownership is in dispute, in ancillary matters may face challenges by a third party affected by such a determination in separate proceedings.[note: 58]

54     However, it should be noted that Option 1 does not involve the court making an order directly affecting the property. The risk, if any, lies with the Wife as the spouse who has to account for the value of the disputed asset. The Wife recognises as such and is prepared to proceed on such a basis.[note: 59]

55     As the Husband has a real enough choice of taking up Option 1, the AR was correct in her finding that the Related HC Proceedings are unnecessary. Further, although the Husband has clarified that he filed SUM 3414 for the sole purpose of being permitted to start the Related HC Proceedings,[note: 60] the scope of the orders sought by the Husband is very wide and goes beyond that. If Prayer 1 of SUM 3414 is granted, it would have the effect of releasing the Husband of the Riddick undertaking from “any other purposes”. There is nothing in Prayer 2 that limits the effect of Prayer 1.

56     Given that there is no real necessity for the Husband to commence the Related HC Proceedings and taking into account the expansive nature of the orders sought by the Husband, the Wife’s apprehension that the Husband may misuse the documents and information if he is released of the Riddick undertaking is not without basis. This risk cannot be discounted given the conduct of the Husband as observed in FC/RA 1/2023 and HCF/RAS 4/2023. Additionally, his frequent change of solicitors deepens my concern about the propensity on his part to engage in a course of conduct that is unnecessarily acrimonious and confrontational.

57     On balance, it was clear to me that the interests that are protected by the Riddick undertaking outweigh the interests advanced by the Husband for the use of the Disclosed Documents and Information. Accordingly, I affirmed the AR’s decision and dismissed the appeal.

SUM 92

58     SUM 92 is an application by the Husband for leave to respond to certain paragraphs of the Wife’s Reply Ancillary Matters Affidavit dated 28 August 2023.

59     The Husband’s appeal is concerned with six items identified in S/No. 1, 4, 6, 9, 10 and 12 (the “Appealed Items”) of the Table of Positions exhibited in the Husband’s Supporting Affidavit filed in SUM 92 on 8 January 2024.

60     The AR disallowed the Husband’s application broadly on the basis that the proposed responses or new evidence is unnecessary or has limited impact to the outstanding issues to be determined.[note: 61]

61     The Husband submits that leave should be granted to reply to the Appealed Items as the evidence he intends to adduce will facilitate a fair adjudication of the ancillary matters.[note: 62] Out of the six Appealed Items, five are relevant to the issue of indirect contributions[note: 63] and one is relevant under s 112(2)(g) of the Women’s Charter (“the Charter”).[note: 64]

62     The Husband says that the parties are still in a relatively early stage of the ancillary matters as a hearing date has not been fixed.[note: 65] If the evidence that he is seeking to admit at this juncture is disallowed and turns out to be important in an appeal in future, it would not satisfy the Ladd v Marshall rule and the Husband would thus suffer prejudice.[note: 66]

63     The Wife submits that the affidavit filed by the Husband in support of SUM 92 is his twelfth affidavit. The Husband has already had ample opportunity to present his case whether through his AOM, or in the course of the several applications filed by him.[note: 67]

64     The Husband refers to the broad principle of law in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15 where the CA emphasised that “every litigant has a general right to bring all evidence relevant to his or her case to the attention of the court” and where “the relevance of evidence sought to be adduced is unclear, or even doubtful”, it is “usually both prudent and just to err in favour of admission rather than exclusion”. [note: 68]

65     The Husband also refers to SIC College of Business and Technology Pte Ltd v Yeo Poh Siah [2016] SGCA 5 where the CA held as follows:

It is axiomatic that in order to arrive at a fully considered decision based on justice and fairness, the court concerned must have all the relevant evidence before it. The present appeal turns on this one fundamental point. Put simply, was all the relevant evidence before the judge in the court below? If it was not, then there would have been no way for the judge to have arrived at a considered decision simply because he would have been in receipt of the full picture.”

66     In my view, these general principles must be considered against the unique nature of proceedings for the division of matrimonial assets where different considerations apply. As noted by Debbie Ong J (as she then was) in UYP v UYQ [2019] SGHCF 16 (“UYP”):

63    It is significant to note that a civil trial is markedly different from an AM proceeding. In civil proceedings, parties set out their cases in their pleadings and are bound by them. Facts which are pleaded to support a cause of action are proved in the court proceedings. Where there are gaps in evidence and a party asserting a fact is unable to prove it, he or she may not have discharged the requisite burden of proof. A successful litigant would be one who has proved his or her pleaded facts that support the pleaded case. A court may find against a litigant who fails to provide evidence to prove those facts. In contrast, in proceedings for the division of MAs, the court is presented with only a fraction of each party’s “contribution” to the marriage, yet parties seek the court’s determination on what is a just division based substantially on each party’s direct and indirect contributions in the entire marriage. Had a similar approach as that used in civil matters been taken, the Family Court presented with a 30-year marriage would have had to examine the entire contributions and conduct of each spouse over 30 years, possibly examining the daily records of each act done, each decision made, each word uttered every day and night over 30 years, for that is the only way to fully assess what contributions each had made to the marriage. This is an impossible exercise. Neither does such an exercise accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for parties to continue family life after divorce in the most dignified manner possible. The court determines the division of assets by affidavit evidence unless leave is granted for the cross-examination of witnesses (see rr 42, 81(2) and 590 of the Family Justice Rules 2014 (S 813/2014)). This mode of proceedings is suitable because the “broad brush” approach is core to the exercise of discretion in s 112. It is appropriate because marriage is an intimate partnership between two spouses who had decided very solemnly to join their lives together.

64    Thus when applying the ANJ v ANK approach, the court must bear in mind that findings on the parties’ contributions are necessarily impressionistic as it can only have sight of a portion of all that had occurred during the marriage, and will not be able to reach with mathematical specificity each party’s contributions for the entire length of the marriage. This is especially true for long marriages, as the court’s finding on the parties’ “contribution” cannot fully reflect all that goes into building a life together nor will it be likely that records of transactions remain completely available. This observation should not be taken to suggest that parties should therefore dredge up their past in order to present to the court 30 years’ worth of daily journal records on their married lives. On the contrary, this would run counter to how family disputes ought to be resolved.

[emphasis in bold added]

67     The CA in UYQ v UYP [2020] SGCA 3, in affirming the learned judge’s views, reiterated (at [4]) as follows:

In our view, it would assist the parties to find a way forward and put this painful chapter of their lives behind them by focusing on the major details as opposed to every conceivable detail under the sun. We caveat that this does not mean parties should swing to the other extreme by being remiss in submitting the relevant records. Put simply, there ought to be reasonable accounting rigour that eschews flooding the court with details that would obscure rather than illuminate. Henceforth, therefore, courts should discourage parties from applying the ANJ v ANK approach in a rigid and calculative manner. Parties would do well to understand that such an approach detracts from their respective cases instead of enhancing them. And in extreme situations where the court’s time and resources have been wasted in a wholly disproportionate manner, a party may face sanctions in the form of the appropriate costs orders.

68     Further, under rule 89 of the Family Justice Rules, parties are only permitted to file one AOM and a reply affidavit to the other party’s AOM. Rule 89(3) provides that no further affidavit shall be received in evidence without the leave of the court. The purpose of rule 89 is to discourage parties from filing multiple rounds of affidavits that would only increase legal costs and acrimony and drag out court time unnecessarily. By limiting the number of affidavits, it provides a cut-off point so that parties do not engage in a never-ending cycle of reply and rebuttal over every allegation raised.

69     In my view, the AR had exercised her discretion correctly in refusing to grant leave to the Husband to file a further affidavit to respond to the Appealed Items. The reasonings provided by the AR are consistent with the principles enunciated in UYP and the raison d'être of rule 89. Bearing in mind the “broad brush” approach which is core to the exercise of the discretion in s 112 of the Charter, I found nothing exceptional in the reasons provided by the Husband that would warrant a departure from the default position that limits parties to two affidavits each. In circumstances, I affirmed the AR’s decision and dismissed the appeal.

[note: 1]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [1].

[note: 2]M/S Drew & Napier’s letter dated 12 March 2024 at [3].

[note: 3]M/S Drew & Napier’s letter dated 12 March 2024 at [4] & [5].

[note: 4]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [3].

[note: 5]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [9].

[note: 6]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [10].

[note: 7]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.3].

[note: 8]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.6].

[note: 9]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [11.8].

[note: 10]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12].

[note: 11]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.3] & [15.5].

[note: 12]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [12.4].

[note: 13]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.4].

[note: 14]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.6].

[note: 15]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [15.7].

[note: 16]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [18].

[note: 17]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [19].

[note: 18]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [21].

[note: 19]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.1].

[note: 20]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [22.2].

[note: 21]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [26].

[note: 22]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [10].

[note: 23]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [11] & [28].

[note: 24]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [15].

[note: 25]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 26]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [14].

[note: 27]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [13].

[note: 28]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [23(b)].

[note: 29]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [32].

[note: 30]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [33].

[note: 31]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [34].

[note: 32]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at [35].

[note: 33]Respondent’s Written submissions for FC/AR 1/2024 at [102].

[note: 34]Respondent’s Written submissions for FC/AR 1/2024 at [101].

[note: 35]Respondent’s Written submissions for FC/AR 1/2024 at [99].

[note: 36]Respondent’s Written submissions for FC/AR 1/2024 at [105].

[note: 37]Respondent’s Written submissions for FC/AR 1/2024 at [106].

[note: 38]Respondent’s Written submissions for FC/AR 1/2024 at [57].

[note: 39]Notes of Evidence dated 16 January 2024 at p 16 at [3].

[note: 40]Notes of Evidence dated 16 January 2024 at p 17 at [4] and p 20 at [16].

[note: 41]Notes of Evidence dated 16 January 2024 at p 17 at [6].

[note: 42]Notes of Evidence dated 16 January 2024 at p 17 at [7].

[note: 43]Notes of Evidence dated 16 January 2024 at p 18 at [10].

[note: 44]Notes of Evidence dated 16 January 2024 at p 18 at [11].

[note: 45]Notes of Evidence dated 16 January 2024 at p 19 at [15].

[note: 46]Third Eye at [7].

[note: 47]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 48]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 49]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [14].

[note: 50]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [16].

[note: 51]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 52]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [17].

[note: 53]Defendant’s Affidavit in support of SUM 3414 filed on 2 November 2023 (DA1) at [25].

[note: 54]Plaintiff’s Affidavit in response to DA 1 filed on 30 November 2023 (PA1) at p 20.

[note: 55]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [8].

[note: 56]Respondent’s Written submissions for FC/AR 1/2024 at [47].

[note: 57]Respondent’s Written submissions for FC/AR 1/2024 at [51].

[note: 58]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [39.2].

[note: 59]Respondent’s Written submissions for FC/AR 1/2024 at [55].

[note: 60]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [9].

[note: 61]Notes of Evidence dated 16 January 2024 at pp 21 – 23.

[note: 62]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

[note: 63]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at pp 29 (s/no 1), 34 (s/no 4), 41 (s/no 6), 44 (s/no 10), 50 (s/no 12).

[note: 64]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at p 42 (s/n 9).

[note: 65]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [46].

[note: 66]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [47].

[note: 67]Respondent’s Written submissions for FC/AR 1/2024 at [120].

[note: 68]Defendant/Appellant’s Written Submissions for FC/RA 1/2024 at [44].

"},{"tags":["Civil Procedure – Discovery"],"date":"2024-05-13","court":"Family Court","case-number":"Divorce No 3366 of 2023 (Summons No 586 of 2024)","title":"WWU v WWV","citation":"[2024] SGFC 26","url":"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%2F31491-SSP.xml","counsel":["Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff","Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant."],"timestamp":"2024-05-17T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WWU v WWV

WWU v WWV
[2024] SGFC 26

Case Number:Divorce No 3366 of 2023 (Summons No 586 of 2024)
Decision Date:13 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Sara Ng Qian Hui (Covenant Chambers LLC) for the Plaintiff; Rina Kalpanath Singh, Cheryl Tan Wee Tim, Desiree Ang Li Jun (Kalco Law LLC) for the Defendant.
Parties: WWU — WWV

Civil Procedure – Discovery

13 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       It was the year 2000. The dawn of a new millennium. It was also the year that the Husband left the matrimonial home following a heated disagreement with the Wife.[note: 1] Since then, the Husband made no attempt to return home, or stay in touch with the Wife, save for instances where there were matters relating to their two children.

2       As to why the Husband had left and cut off all contact with the Wife, there are no details disclosed in the Statement of Particulars (“SOP”). What is disclosed, however, is that the Husband rented another place nearby, while the Wife and two children continued to reside at the matrimonial home. It is also disclosed, in the SOP, that the Husband is the joint partner of a vehicle workshop, (“ABC”).[note: 2] ABC is in the business of providing repair and maintenance services for heavy commercial vehicles.[note: 3]

3       Although the Husband was estranged from the Wife, he appears to have maintained a close relationship with the two children. The fact that his son filed an affidavit detailing his contributions to the family spoke to this.

4       The passing of time, however, did little to heal the rift between the Husband and the Wife. After more than twenty years apart, the Husband filed for divorce on 17 July 2023. Interim judgment was granted on 25 October 2023. All that was left to be settled were the ancillary matters. To that end, the matter was fixed for mediation. Realising that they were unlikely to find common ground, parties decided to abandon mediation and embark on the road to an ancillary hearing. Parties thus filed and exchanged their Affidavit of Means (“AOMs”). Subsequently, they exchanged requests for discovery and interrogatories.

5       The Wife, being dissatisfied with the Husband’s responses to her request for discovery, filed SUM 586/2024 (“SUM 586”). She sought the disclosure of the following documents:

(a)     Balance Sheets and the valuation report of ABC;

(b)     Statements of the Husband’s personal bank accounts;

(c)     Receipts supporting cash withdrawals from the Husband’s personal bank account;

(d)     In relation to the Husband’s insurance policies, the complete insurance policy contract as well as the projected benefit illustration of each policy.

6       In addition to the disclosure of the above-mentioned documents, the Wife also asked for a valuation expert to be appointed to value ABC, and that the costs of the valuer be borne by the parties equally.

7       I heard oral arguments on 6 May 2024. This is my decision in respect of the Wife’s application in SUM 586.

The Wife’s application for discovery

8       I deal, first, with the Wife’s application for discovery.

9       The first two items that the Wife sought disclosure of were the balance sheets and valuation report of ABC. Counsel for the Husband argued that these items should not be disclosed because ABC was not a matrimonial asset. The Husband had inherited ABC from his father, and had been added as a partner, well before parties were married.

10     This is not a sustainable argument. It is clear that parties must strictly observe their disclosure obligations and cannot tailor the scope of disclosure based on their own views of what a matrimonial asset is: UZN v UZM [2021] 1 SLR 426 (“UZN”) at [17].

11     There is, however, a more important point – that is: what are the sort of documents of a partnership that may be disclosed in the context of an application for discovery in support of an ancillary hearing? There is case law, in the context of commercial litigation, which suggests that certain documents of a partnership may not be disclosed without the consent of the other partners who are not a party to the suit. One such example may be found in Hadley v Mcdougall [1872] L.R 312 (“Hadley”). In that case, the plaintiff had applied for the account of partnership transactions entered into by himself and the defendant for the supply of harnesses to the French government. The defendant was in a partnership with his father, who had no interest in that particular transaction that formed the subject of the suit. The accounts of the relevant transactions, however, appeared to have been entered in the partnership books of the defendant and his father.

12     Vice-Chancellor Malins had ordered the partnership books to be disclosed. The defendant appealed, and succeeded. The court ruled that an order of production of documents could not be made on a person who was not a party to the suit.

13     In contrast to Hadley is the case of G v G (Financial Provision: Discovery) [1992] 1 FLR 40 (“G”). In that case, the husband, who was a lawyer, had recently jointed a firm of solicitors as a partner. The partnership deed had yet to be drawn up. The wife sought disclosure of the partnership deed. District Judge Conn granted the application. The husband appealed on the basis that the court could not order the disclosure of documents not currently in existence. Bracewell J dismissed the appeal, finding that the court’s powers were not limited to such documentation that was already in existence.

14     The point which may be distilled from the cases cited above is that where disclosure of partnership documents is sought, the question is whether the other partners to the partnership also have a right or interest in the document that is sought to be disclosed (see In re Pickering [1883] 25 Ch D 247). If they do, then disclosure would be disallowed, though the court could, in that case, allow an interrogatory as to the contents of the document sought: B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181 at p 187.

15     In the case of partnership books, s 24(i) of the Partnership Act 1980 makes it clear that all partners to the partnership shall have “access to and inspect and copy them”. The documents sought in the present case before me, however, are balance sheets. They are accounting documents. The Wife has asked for them because she wants to put a value on the Husband’s share of ABC. These documents are quite different from the partnership books that were sought in Hadley.

16     For completeness, I note that the Husband has resisted disclosure on the basis that there are no balance sheets. He had stated, in his reply affidavit, as well as written submissions, that ABC does not have a balance sheet.[note: 4]

17     The Husband cannot run from his disclosure obligations by virtue of such bare assertions. The twin criteria that must be satisfied to obtain an order for discovery are that of relevance and necessity: UJN v UJO [2018] SGFC 47 at [10]. If the document is relevant and necessary for the disposal of the ancillary matters, it should be disclosed.

18     In the circumstances, I will allow the Wife’s request for the balance sheets of ABC for AY 2021, 2022 and 2023. The balance sheets sought are indeed relevant and necessary to determining the value of the Husband’s share in ABC.

19     In light of the above, I will disallow the Wife’s request for the valuation report.

20     I come now to the next set of documents which the Wife sought – these were statements of the Husband’s two personal bank accounts with POSB from January 2023 to August 2023. Her request stems from the suspicion that the Husband had dissipated matrimonial assets. There were, according to her, a number of highly unusual transactions involving large sums of money, to his son and sister.[note: 5]

21     The Husband resisted disclosure on the basis that the Wife had no basis to allege that there had been dissipation of matrimonial assets. He referred to the Court of Appeal (“CA”) decision in BOR v BOS and another appeal [2018] SGCA 78 (“BOR”) where the court had observed, at [76], that “not every unexplained withdrawal or decrease in value in a bank account over time will be sufficient to raise a prima facie case of dissipation”. He also referred to the decision in Tan Yen Chuan (m.w.) v Lim Theam Siew [2014] SGHC 110 at [32] and [33] where the court had taken the view that focussing on the movement of large sums of money was a more reliable forensic approach of uncovering any dissipation of assets.

22     I do not think that discovery can be resisted on the Husband’s mere insistence, at the interlocutory stage, that the Wife had no basis to allege that assets had been dissipated. As the CA had noted in BOR at [76], whether there has been dissipation is a “fact-sensitive matter and the court will consider the evidence in the context of the parties’ habits, lifestyles, business activities, and amount of the withdrawal(s) in relation to the total value of the matrimonial assets in question”. Simply put, this is a matter to be decided by the judge hearing the ancillary matters. The corollary of this is that all the relevant and necessary evidence must be placed before that judge. This is where the discovery process comes into play. In that vein, it is useful for both the court, and the Wife, to have a snapshot of the Husband’s financial circumstances shortly before the marriage broke down till the period after divorce proceedings had been filed: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 at [19].

23     I will allow the Wife’s request for the bank statements. The period of disclosure sought by the Wife is, in my view, a reasonable and sensible one. It covers the immediate period preceding the Husband’s filing of the divorce and a month after the divorce had been filed. There can also be no quarrel as to the relevance and necessity of these documents – any dissipation of assets would, in all likelihood, be reflected in the statements.

24     The next set of documents sought were the receipts supporting cash withdrawals from the Husband’s personal bank account. Counsel for the Wife explained that the Wife was essentially asking for documentary proof as to what the Husband had spent the cash on. In short, the Wife wanted an explanation as to what the cash had been spent on.

25     I will disallow the request. The disclosure of such documents was not necessary given that I have already ordered the disclosure of the Husband’s bank statements. In any event, if the Wife wanted an explanation as to what the cash had been spent on, that could have been pursued by way of interrogatories rather than discovery.

26     I now come to the final set of documents that the Wife has asked for. These are documents relating to the Husband’s insurance policies, specifically, three insurance policies that the Husband had with Manulife. This, once again, stems from Wife’s suspicion that the Husband has been dissipating assets because the surrender value of these policies were low compared to the premiums paid. She has therefore sought disclosure of the complete insurance policy contracts along with the projected benefit illustration.

27     The Wife’s request is disallowed. I did not see how the documents which the Wife asked for were relevant. The contracts would only disclose the extent of the obligations between the Husband and the insurance company. They would not actually show whether the Husband had, for example, taken out loans from his insurance policies. I will instead order the Husband to disclose the statement of any payouts he has received from these three insurance policies.

Appointment of a valuation expert

28     I turn now to deal with the Wife’s request that a valuation expert be appointed.

29     Parties disputed the appointment of a valuation expert on the basis that ABC was not a matrimonial asset.[note: 6] This quite misses the point. The law makes it abundantly clear that it is the court which hears the ancillary matters that decides whether the asset in dispute is indeed a matrimonial asset. It is not for parties to say that a valuation expert should not be appointed because they have taken the view that the asset in dispute is not a matrimonial asset.

30     The more pertinent question was whether there was any legal basis to appoint such an expert. Rule 630 of the Family Justice Rules 2014 (“FJR”) is relevant. It states:

Appointment of expert to report on certain question

630.—(1)    In any cause or matter in which any question for an expert witness arises, the Court may at any time, on its own motion or on any party’s application, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.

(2)    An expert appointed under this Division or under rule 555 shall be referred to as a court expert.

(3)    Any court expert in a cause or matter, if possible, is to be a person agreed between the parties and, failing agreement, is to be nominated by the Court.

(4)    The question to be submitted to the court expert and the instructions (if any) given to him is, failing agreement between the parties, to be settled by the Court.

(5)    In this rule, “expert”, in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.

[emphasis added]

31     This Rule is derived from O 40 r 1 of the Rules of Court (2014 Rev Ed) (“ROC 2014”): Chen Siyuan, Eunice Chua, Lionel Leo, Family Procedure in Singapore (LexisNexis, 2018) (“Family Procedure in Singapore”) at [630.01]. In the context of civil litigation, O 41 r 1 acts as a safety net to avoid a situation where the court is left without the aid of expert evidence in cases where the experts appointed by each party has given contradictory questions on technical issues: Singapore Civil Procedure 2021 vol 1 (Cavinder Bull gen ed) (Sweet & Maxwell, 2021) (“White Book”) at [40/1/2]. In the context of family proceedings, some have taken the view that the court should, given the benefits offered by a court-appointed expert, “consider using its appointment powers under this rule more liberally since it is given a strong mandate to manage cases and reduce acrimony”: Family Procedure in Singapore at [630.01].

32     There is much force to this view. It does not, however, mean that a valuation expert should be appointed in every case. The decision to appoint an expert under Rule 630 lies in the court’s discretion, and in this connection, the cost of doing so is one very relevant consideration (see White Book at [40/1/2] citing Maugham L.J. in Fishenden v Higgs & Hill Ltd [1935] All E.R. 435 at p 452). For example, if it will cost $10,000 to value a company whose estimated value is approximately $50,000, it is unlikely that the court will order that an expert be appointed unless there are other circumstances that weigh in favour of such an appointment being made.

33     Given that I have already granted the Wife’s request for disclosure of ABC’s balance sheets, I did not think it necessary for a valuation expert to be appointed at this stage. The balance sheets would shed light on the valuation of ABC.

Conclusion

34     I therefore order the following:

(a)     That the Plaintiff be required to state on affidavit pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents listed in Items 1, and 3 of ANNEX A annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(b)     The Plaintiff shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       The statement of any payouts he has received from the insurance policies set out at page 2 of Annex A annexed to this summons, from the time those policies were in force to date;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     Compliance affidavits are to be filed and served by 3 June 2024;

(d)     Costs submissions in respect of SUM 586 are to be filed and served by way of letter by 20 May 2024 by 5pm, limited to 3 pages each.

35     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars (Amendment No. 1) at paras 1 (e) and (f).

[note: 2]Statement of Particulars (Amendment No. 1) at para 1 (d).

[note: 3]Husband’s AOM at para 4.

[note: 4]Husband’s Reply Affidavit for SUM 586 at para 11; Huband’s Written Submissions for SUM 586 at para 8.

[note: 5]Wife’s Skeletal Submissions at p 8 – 10.

[note: 6]Plaintiff’s Written Submissions for Discovery at para 9.

"},{"tags":["Civil Procedure – Discovery","Civil Procedure – Interrogatories"],"date":"2024-05-09","court":"Family Court","case-number":"Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024)","title":"WWS v WWT","citation":"[2024] SGFC 24","url":"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%2F31488-SSP.xml","counsel":["Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff","Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant"],"timestamp":"2024-05-16T16:00:00Z[GMT]","coram":"Soh Kian Peng","html":"WWS v WWT

WWS v WWT
[2024] SGFC 24

Case Number:Divorce No 3523 of 2022 (Summons No 632, 633, 682 and 684 of 2024)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Soh Kian Peng
Counsel Name(s): Arul Suppiah Thevar (APL Law Corporation) for the Plaintiff; Chai Li Li Dorothy, Lai Mun Loon (DCMO Law Practice LLC) for the Defendant
Parties: WWS — WWT

Civil Procedure – Discovery

Civil Procedure – Interrogatories

9 May 2024

Judgment reserved

Assistant Registrar Soh Kian Peng:

Introduction

1       Suspicion and distrust are two defining features marking the breakdown of a marriage. This often manifests itself when parties, anticipating divorce, attempt to dispose of, or conceal their assets: see UZN v UZM [2021] 1 SLR 426 (“UZN”); TIT v TIU and another appeal [2016] 3 SLR 1137 at [32]. Such attempts, if successful, would deplete the deferred community of property arising upon the termination of marriage.

2       There is, however, a mechanism by which such attempts may be stifled and brought to light. Parties can, if they suspect that matrimonial assets are being dissipated or concealed, apply for discovery and interrogatories. The respondent to such an application must comply with any order for disclosure. They cannot hide. If they do, the court hearing the ancillary matters can draw an adverse inference from the failure to make full and frank disclosure: UZM at [18] – [21] citing BPC v BPB and another appeal [2019] 1 SLR 608 (see also AFS v AFU [2011] 3 SLR 275 at [40] – [45]).

3       The present case before me concerned a total of four applications taken out by both the Wife and the Husband for discovery and interrogatories. These applications appear to have been motivated by the fact that each party suspected the other of hiding or concealing their assets.

4       I heard oral arguments by counsel for both parties on 2 May 2024. This is my decision in respect of the four applications: SUM 632/2024 (“SUM 632”), SUM 633/2024 (“SUM 633”), SUM 682/2024 (“SUM 682”), SUM 684/2024 (“SUM 684”).

Background

5       The parties were married on 31 May 2007. They had a child shortly thereafter. In the years that followed, the family weathered the vicissitudes of life together. The Husband was imprisoned, and the responsibility of caring for the child fell to the Wife. Upon the Husband’s release, Company A was set up. Its’ business lay in the provision of courier services.

6       Relations between the couple, however, were strained, and deteriorated to the point where the Husband moved out of the matrimonial home in July 2021.[note: 1] A few months later, the Husband cut off all contact with the Wife. This was, as far as the Wife was concerned, the straw that broke the camel’s back. She filed for divorce a few months later on 2 August 2022. Interim judgment was granted on 25 October 2022. In an attempt to find common ground on the ancillary matters, parties attended mediation. No resolution was forthcoming.

7       This set parties on the road to an ancillary matters hearing. Parties exchanged their Affidavit of Means (“AOMs”) on 30 October 2023, and were directed to exchange voluntary discovery and interrogatories in a Case Conference on 9 November 2023.[note: 2]

8       Dissatisfied with what information and documents they had received from this voluntary exchange, the Wife and Husband both took out summons for discovery and interrogatories.

Parties’ application for discovery and interrogatories

The Wife’s application in SUM 632 and SUM 633

9       The Wife’s application for interrogatories were grouped in the following order. First, questions relating to the Husband’s sources of income – specifically, whether he had any other sources of income outside of his job as director of Company A.[note: 3] Second, questions relating to the Husband’s bank accounts – specifically, whether he had any other accounts apart from those disclosed in his AOM.[note: 4]

10     Third, questions relating to whether any other person or entity had held cash on behalf of the Husband.[note: 5] Fourth, questions relating to insurance policies – specifically, whether the husband had held any other insurance policies from the date of marriage, apart from those disclosed in his AOM.[note: 6]

11     Fifth, questions relating to the details of any loans or gifts that the Husband had made to any person.[note: 7] Sixth, questions relating to whether the Husband had disposed of any assets (ie, property, cash, cars) that were either owned by him individually or jointly.[note: 8] The Wife also sought an explanation for various deposits and withdrawals from the Husband’s bank account.[note: 9] Finally, the Wife also wanted answers as to the Husband’s current residential address, as well as whether he owned any credit cards, and if so, whether there were any supplementary cards, and an explanation as to what had happened to the $100,000 of cash that had been deposited into the safe box in the matrimonial flat.[note: 10]

12     The Wife takes the position that these interrogatories are relevant in determining whether the Defendant had made a full disclosure of his assets as well as his income. This would have a direct bearing on the division of matrimonial assets.

13     As for the Wife’s application for discovery, that fell into three broad categories. First, for documents pertaining to Company A – these included documents such as Company A’s articles of association and company memorandum and financial statements from 2022 – 2023.[note: 11]

14     The Wife explains that these documents are relevant because they establish her contributions towards the company, as well as the Husband’s earning capacity and/or means. The Wife has also pointed out that there is no reason why the Husband cannot produce these documents given that he is currently the sole director and shareholder of Company A, having removed her name without her consent.[note: 12]

15     Second, documents relating to the Husband’s personal finances – these include CPF transaction statements for the past 12 months, as well as receipts of household expenses.[note: 13] Here, the Wife explains that these documents are relevant because they establish the Husband’s earning capacity and/or means, and are also necessary for the division of matrimonial assets.

16     Third, documents relating to two questions posed in her Request for Interrogatories. These questions concerned whether the Husband had any other sources of income or credit cards. In relation to the former, the Wife stated, in her affidavit, that the Husband had other businesses apart from Company A.[note: 14] She therefore sought documents (ie, ACRA business profile, financial statements) relating to those businesses. As for the latter, the Wife had also stated that the Husband had other credit cards,[note: 15] and sought statements for those credit cards for the past 12 months.

The Husband’s application in SUM 682 and SUM 684

17     The Husband’s application for interrogatories all related to the Wife’s finances. He sought information about her source of income,[note: 16] details about her bank accounts (including inflows and outflows of funds),[note: 17] and whether she had taken any loans from her insurance policy which was disclosed in her Affidavit of Means (“AOM”).[note: 18]

18     The Husband’s application for discovery mirrored his request for interrogatories.[note: 19]

19     The Husband justified his request for interrogatories and discovery on the basis that he had reason to believe that the Wife had worked for other companies, apart from those disclosed in her AOM, and been paid by these companies. The Husband also claimed, in his affidavit, that despite working and drawing a good income in addition to a lump sum of $122,000 that she had amassed, it was puzzling that she only had the sum of $339.30 left in her bank account.[note: 20] In this vein, this made it necessary for him to get hold of her account statements with the banks and financial institutions.[note: 21]

20     As for the Wife’s insurance policies, the Husband’s position was that information and documents relating to those policies were necessary to confirm if those policies had been purchased prior to the marriage. This would allow the court to determine whether these policies should be considered a matrimonial asset.[note: 22]

My decision

The law on discovery and interrogatories in family proceedings

21     Discovery and interrogatories allow parties to a divorce proceeding to seek further information and documents from the other following the filing of the first AOM. The former concerns the disclosure of documents, whilst the latter allows for information to be sought in the form of answers to questions posed: UJN v UJO [2018] SGFC 47 (“UJN”) at [9].

22     Rules 63 – 77 of the Family Justice Rules 2014 (“FJR”) govern the process of discovery and interrogatories in ancillary matters proceedings. Parties seeking discovery and interrogatories must establish that their request for information or documents are not only relevant, but also necessary for the fair and efficient disposal of the matter: UJN at [10].

23     It has been stated that the test for what is relevant in family cases is very wide: Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases [2003] SGDC 306 (“Tan Bin Yong Christopher”) at [13]. The reason for this is to ensure that the issues are properly delineated, and that all the necessary evidence is made available by the time of the ancillary hearing.

24     This, however, does not mean that discovery or interrogatories will automatically be allowed once their relevance to the ancillary matters hearing can be shown. Necessity must also be established. In the context of discovery, this means that the court must “strike a balance between the importance and relevance of the documents sought and the hardship to the party seeking discovery which is likely to be caused by non-production, against any prejudice likely to be caused to the other party if an order to produce documents or provide information is made”: VTQ v VTR [2021] SGFC 85 (“VTQ”) at [26] citing Tan Bin Yong Christopher at [13].

25     Having sketched out the broad principles governing applications for discovery and interrogatories, I turn now to set out my reasons in respect of the applications filed by both the Wife and Husband.

SUM 633

26     I deal, first, with the Wife’s application for interrogatories. It was clear to me that the Wife was seeking these interrogatories because she did not believe the Husband’s answers. Indeed, she had said as much in her affidavit.[note: 23] Her counsel had also gone to great lengths in the course of oral arguments, and referred me to various documents which allegedly showed that the Husband had lied in his responses given on 2 February 2024.

27     The Wife is perfectly entitled to disbelieve the Husband’s response, and to mount a vigorous argument that he had been dissipating assets, but the proper forum to ventilate this is at the hearing of ancillary matters. I am not concerned as to the truth of the Husband’s answers, but rather, the sufficiency of those answers: UJN at [12].

28     How then is one to assess the sufficiency of answers in response to interrogatories? It is perhaps useful to look at an example. In Rasbotham v Shropshire Union Railways and Canal Company [1882 R. 2434] 24 Ch D 110 (“Rasbotham”), the plaintiffs, who were owners of water mills and had the statutory right to draw water from the river, sued the defendants, alleging that they had, through their own acts of negligence, polluted the river from which water was drawn for their mill. The defendants sought interrogatories asking the plaintiffs to give a list of specified dates on which the operation of the water mills had allegedly been interfered with. The plaintiffs’ response was that they were unable to specify the particular days on which the interference had taken place.

29     North J dismissed the defendants’ objection that the answer given was insufficient. In reaching this conclusion, North J distinguished the earlier case of Bolckow, Vaughan, & Co. v Fisher and others [1882] 10 QBD 161 (“Bolckow”), which stood for the proposition that where a man is “interrogated as to what he did by his servants or agents, he is not entitled to say that he will not ask them about it" (Rasbotham at p 112). The interrogatory posed did not specifically query the plaintiffs as to what their agents or servants knew. There was also nothing in the present case to show that the “acts referred to [had] been done in the presence of the plaintiffs’ servants or agents”.

30     Short of stating the obvious, in assessing the sufficiency of the response, one must look closely at the wording of the interrogatory posed, as well as the response given. Exactly what is it that is being asked? Has it been answered?

31     Returning to the present application, having read the Husband’s responses, I was satisfied that his answers to 31 out of the 32 interrogatories (Items 1 – 31) posed were indeed sufficient. He had directly answered these 31 questions posed to him. Where the questions posed had sought details, the Husband had provided them.

32     In relation to queries about his other sources of income, he had stated that he had none. As for details of other accounts or investments he may have had with financial institutions or banks, he answered in the affirmative and disclosed the details sought. When queried about whether others had held cash on his behalf, he replied in the affirmative. He stated that the Wife held cash, to the tune of $122,000, on his behalf.

33     As for the interrogatories about other insurance policies he may have had, he stated that, as far as he could remember, he did not own any other insurance policies apart from those disclosed in his AOM.[note: 24] As to whether he had made any loans or gifts, he stated that he had not made any loans to any person, but he had gifted a gold bangle to his mother.[note: 25]

34     The Wife had also asked whether he had disposed of any assets – to which the Husband had replied in the negative.

35     The next set of questions required the Husband to explain various withdrawals and deposits to his personal account. The Husband’s responses were sufficient – he not only set out the details sought (such as owner of the account to whom the monies had been transferred), but also explained the purpose of the transfer.

36     Finally, in relation to the set of miscellaneous interrogatories pertaining to the Husband’s current residence, as well as whether he had any other credit cards apart from those disclosed in his AOM, the Husband had, again, provided the details sought.

37     The one response which I did not find to be sufficient was that in respect of Item 32. This was the interrogatory posed:

What has happened to the cash amount more than $100,000.00 deposited earlier into the safe box in the matrimonial flat.

38     In stark contrast to his previous responses, all the Husband offered was: “no reply”. This is not a sufficient answer. The interrogatory seeks to know what has become of the cash. It is no answer to simply state “no reply”.

39     I therefore allow the Wife’s application in respect of Item 32. Her application in respect of Items 1 – 31 is disallowed, for the reasons that I have set out above.

SUM 632

40     I turn now to the Wife’s application for discovery. The first broad category of documents for which discovery was sought related to Company A (Items 1 – 10). The ACRA records disclosed in the Husband’s AOM showed that he was the sole director and shareholder of Company A.[note: 26]

41     The principles relating to discovery of documents belonging to a company of which the spouse was a director and shareholder, which was laid down in ACW v ACX [2014] SGHC 53 (at [20] citing B v B (Matrimonial Proceedings: Discovery [1978] Fam 181 at 193 – 194), are thus relevant:

20    More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in B v B at 193–194:

(a)    The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.

(b)    If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.

(c)    If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:

(i) the extent of the shareholding of the husband;

(ii) whether it amounts to control of the company;

(iii) whether the minority shareholders are adverse to him;

(iv) how the board of directors is constituted; and

(v) whether there is any objection by the board to disclosure of any of the documents sought.

(d)    A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.

(e)    Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.

(f)    It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.

(g)    Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.

42     The Wife appeared to take the position that Company A was the Husband’s alter ego – this meant that the documents set out in Items 1 – 10 were indeed in his possession and thus ought to be disclosed.

43     I was satisfied that Company A was indeed the Husband’s alter ego. There was no other evidence to the contrary. To borrow the words of Lord Denning in Lonrho Ltd and anor v Shell Petroleum and anor [1980] QB 358 at p 371, the Husband’s power over Company A was so complete such that he should be able to disclose the documents of the company that were sought in these proceedings.

44     I would, however, at this juncture, observe that the idea of a company being an alter ego in the context of a discovery application is subtly different from the context of piercing the corporate veil. The former inquiry is concerned with assessing whether the spouse’s control over the company is so domineering such that they would likely have, and be able to disclose, the company documents sought without requiring the consent of the company’s board. The latter, however, is concerned with questions of liability – if the company is carrying on the business of its controller and incurs liability as a result, the controller cannot take cover behind the company’s corporate form: see Dialectic PR LLC v Brilliante Resources International Pte Ltd [2023] SGHC 39 at [49] citing Alwie Handoyo v Tjong Very Sumito and another and another appeal [2013] 4 SLR 308 (“Alwie”) at [96], citing NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd [2011] 2 SLR 565 at [31] and Zim Integrated Shipping Services Ltd v Dafni Igal [2010] 2 SLR 426 at [86]–[88].

45     As to which documents should be disclosed, I allow the Wife’s request in relation to Items 1 – 4, and Items 6 – 9. Item 1, which was the memorandum and articles of association of the company at the time it was incorporated, was relevant because the Wife had alleged that the Husband had removed her as a shareholder and intended to downplay her contributions to Company A.[note: 27]

46     As for items 2 – 4, and 6 – 9, I was of the view that they were relevant towards showing the value of Company A at the ancillary matters hearing. These items included, amongst other things, financial statements (which I understood to be a request for the audited financial statements) and the corporate income tax return form as well as bank statements. The Wife had also asked for the tenancy agreement and list of company vehicles (Items 4, 6, 7, and 8) – these were also relevant towards the valuation of Company A. These documents would show whether Company A’s assets had been dissipated, and also give a clearer picture of its expenses.

47     In light of the above, I will disallow the Wife’s request for a valuation report (Item 9).

48     As for the Wife’s request in relation to Item 5, that too, is disallowed. Item 5 was the CPF list of Company A’s employer submissions statement. Counsel for the Wife argued that it was relevant to showing the company’s value, as well as ascertaining who were Company A’s employees, and whether the Husband was an employee. I disagree. Item 5 was not relevant towards valuing the company – the company’s payroll would have been reflected in the financial statements, which the Wife had also asked for. There were also other documents that could be sought to show whether the Husband was indeed Company A’s employee. Finally, as counsel for the Husband quite rightly pointed out, Item 5 would contain CPF contributions of other employees that were, and should remain, confidential.

49     I turn now to deal with the next category of documents which related to the Husband’s personal finances.

50     Item 11 was a request for the Husband’s CPF statements for the past 12 months. Counsel for the Husband characterised this request as a fishing expedition. In response, counsel for the Wife argued that the CPF statements would be a more accurate reflection of the Husband’s salary, and also allow for the numbers to be tallied with the payslips that had been disclosed.

51     I will allow the request for Item 11. The CPF statements were clearly relevant towards demonstrating the Husband’s earning capacity and means.

52     As for Items 12 – 14, these were requests for receipts evidencing the Husband’s expenditure on, amongst other things, household expenses and property tax. I will disallow this request. As I had pointed out to counsel for the Wife during the hearing, if the Husband has not disclosed these receipts, that will only be to his detriment at the hearing of ancillary matters.

53     I come now to the last two items. Item 15 related to Item 1 of the Wife’s request for interrogatories. She wanted the Husband to produce documents, including the ACRA business profile, financial statement (which I, again, understood to be a request for the audited financial statements), corporate income tax form and valuation of the business.

54     This request is not well framed. The Wife’s real interest was in Company B, which had an almost similar name to Company A. She had disclosed ACRA records of Company B in her affidavit which showed the Husband being listed as a shareholder and director.[note: 28] These ACRA records also showed that Company B had been incorporated on 30 May 2022.[note: 29]

55     In the circumstances, I will allow Item 15 only to the extent that the Husband is to disclose the bank statements of Company B from 30 May 2022 to date. The Husband is also to disclose, if available, the audited financial statements of Company B for the financial years 2022 and 2023.

56     Item 16 was a request related to Item 31 of the Wife’s request for interrogatories. As I have rejected the Wife’s request (above at [39]), I see no basis to order discovery for Item 16.

57     In summary, Items 1 – 4, 6 – 9, 11, and Item 15 (only to the extent I have stated above), are allowed. Items 5, 10, 12 – 14 and 16 are disallowed.

SUM 682

58     I turn now to deal with the Husband’s application for interrogatories.

59     Item 8 required the Wife to disclose if she had any other sources of income. Items 9 – 12 required the Wife to, if she indeed had any other sources of income, to provide details – this included, amongst other things, the source and frequency of such income as well the banks or financial institutions within which she had deposited such income.

60     The Wife’s response to Item 8 was that “there was no such income”.[note: 30] Counsel for the Husband justified the request on the basis that the Wife was not honest in her answer.

61     This, however, is not a valid justification on which to seek interrogatories. The rule is that answers to interrogatories should be sufficient. As I have already pointed out, any quarrel as to the truth of the answers given should be taken up at the ancillary matters hearing (see UJN at [12]). I thus disallow the Husband’s request in relation to Items 8 – 12.

62     I turn now to Items 13 and 14. Item 13 was a request for the Wife to state whether she had, in the preceding 3 years, maintained any account or investment in any type of financial institution in Singapore or abroad. Item 14 required the Wife to disclose the relevant details, if she indeed had such accounts.

63     The Wife’s answer to Items 13 was:

“It is in the POSB account under the Plaintiff’s name.”

64     This is an insufficient answer. The question posed was whether she had maintained any account or investment with any other financial institutions either in Singapore or abroad. The Wife had, in her response, entirely side-stepped this question. I will therefore allow the Husband’s request for Items 13 and 14.

65     I come now to the final two interrogatories sought: Items 28 and 29. These questions required the Wife to state whether she had taken any loans from her insurance policies as stated at paragraph 7 of her AOM, and if so, to state the quantum of the loan, when it was taken, and the reason for taking the loan.

66     The Wife’s response was “N.A.”. As her counsel explained, this response was provided because she had not taken any loans from those insurance policies. This was, obviously, not good enough for the Husband. As his counsel explained – if such loans had indeed taken, then the question should be answered in the affirmative.

67     I allow the Husband’s request in relation to items 28 and 29. The response was insufficient. I would add, however, that had her response to item 28 been that no such loans were taken out, then her answer of “N.A.” to item 29 would be perfectly acceptable. That is because the manner in which item 29 was framed clearly showed that it was a follow-up question to that posed in item 28.

68     To sum up, in respect of SUM 682, I allow the Husband’s request in respect of Items 13, 14, 28, and 29. The Husband’s request in respect of Items 8 – 12 is denied.

SUM 684

69     I come now to the Husband’s request for discovery.

70     The Husband sought documents pertaining to the Wife’s payslips and related bank account statements:

(a)     Item 2 was a request for the Wife to furnish payment advice statements if she had, in the preceding 3 years, some other sources of income apart from that declared in her AOM.

(b)     Item 3 was a related request for the Wife to provide bank statements, from January 2022 to date, for the accounts in which payments from her other sources of income had been deposited.

(c)     Item 8 required the Wife to produce, bank account statements for the past 3 years, for the accounts into which her monthly salary had been deposited.

71     Counsel for the Husband argued that while the Wife had disclosed that she was working for her father’s company (“Company X”), and other ride-hailing companies, she had only produced her payslips from Grab. In addition, it was highly suspicious that her personal bank account was depleted, despite her remaining gainfully employed. It was therefore necessary to obtain the Wife’s payslips, and relevant bank account statements, to get a fuller picture of her financial status, and to determine if she was truly attempting to conceal her sources of income.

72     In response, counsel for the Wife argued that this request was simply a tit-for-tat response by the Husband. In any event, the request, as framed, was not for payslips, and the Wife was not trying to evade her disclosure obligations.

73     There can be no quibble that the documents sought for are indeed relevant to the ancillary matters hearing. There is a point, however, as to whether these documents were indeed in the Wife’s possession, custody or power (VTQ at [26(b)]).

74     In this connection, there was evidence to show that the Wife had indeed been driving for other ride-hailing companies. For example, these were some of the payouts that the Wife had received in the months of August and September:

(a)     Tada cashout, $962.72 (14 August)[note: 31]

(b)     Gojek cashout, $248.37 (20 August)[note: 32]

(c)     Ryde cashout, $80 (20 August)[note: 33]

(d)     Tada cashout, $907.13 (21 August)[note: 34]

(e)     Gojek cashout, $70.45 (28 August)[note: 35]

(f)     Ryde cashout, $80.90 (28 August)[note: 36]

(g)     Tada cashout, $674.34 (28 August)[note: 37]

(h)     Tada cashout, $521.38 (4 September)[note: 38]

(i)     Gojek cashout, $65.45 (4 September)[note: 39]

It is also evident that both Company X, and Company A, had made CPF contributions to the Wife’s CPF accounts.[note: 40]

75     It thus stands to reason that the Wife, having received payment from other ride-hailing applications, as well as Company X and Company A, should be able to produce the relevant payslips and bank statements. If she does not have them in her possession, or cannot obtain copies, she must set out her explanation in an affidavit with the supporting documentation (if any): VTQ at [26(c)]. She cannot tiptoe around her obligation of disclosure in these proceedings with the bare assertion that she does not have the documents that were requested for.

76     I would note that the Wife had, in an earlier affidavit, to which her counsel referred me, stated that she had been banned by all the other ride-hailing companies, except Grab.[note: 41] The point, which counsel appeared to allude to, was that because the Wife had been banned from these ride-hailing platforms, she would not have been able to obtain these payslips. If this is indeed the case, the Wife should, as I have highlighted above, explain the same in an affidavit and exhibit the relevant documents in support.

77     I therefore allow the Husband’s request for discovery in relation to Items 2, 3, and 8.

78     The next request, Item 5, was for the Wife to disclose the transaction history of her personal bank account with POSB, from January 2022 to May 2023 as well as from December 2023 to date. The Husband wanted these records because, as his counsel put it, it was inconceivable that she only had a few hundred dollars left in her personal bank account. Counsel for the Wife pointed out that she had already disclosed 6 months’ worth of statements and that administrative charges would likely have to be incurred to procure the records sought.

79     I allow the Husband’s request for Item 5. As far as I could tell, the marriage was on the rocks when the Husband left the matrimonial home in July 2021. It would therefore be useful, for the court hearing the ancillary matters, to have an idea of the Wife’s finances during the breakdown of the marriage and prior to the filing of divorce proceedings (see Tan Bin Yong Christopher at [19]).

80     Apart from the Wife’s personal bank account statements, the Husband also sought, in Item 6 of his request for discovery, the account statements of the joint bank account which the Wife held with their daughter. The Husband’s contention is that the Wife should be able to produce these documents but has refused to do so. In response, counsel for the Wife argued that there was no need to produce these documents because it was not a matrimonial asset.

81     I allow the Husband’s request for Item 6. It is the court that decides what constitutes a matrimonial asset. Parties must strictly observe their disclosure obligations and cannot “tailor the extent of their disclosure in accordance with their own views on what constitutes their matrimonial assets”: UZN at [17].

82     Item 7 was related to Items 8 – 12 of the Husband’s request for interrogatories. In short, if the Wife had accounts or investments with other financial institutions, apart from those disclosed in her AOM, she was to produce statements from these accounts.

83     While I had rejected Items 8 – 12 of the Husband’s request for Interrogatories, it did not follow that Item 7 of the Husband’s request for discovery should also be rejected. I cannot proceed on the basis that discovery of these documents should be disallowed because the Wife had no such accounts. To do so would be to implicitly accept that her answer to Items 8 – 12 of the Husband’s request for interrogatories were true. That, however, is an assessment that must be left to the court hearing the ancillary matters.

84     It was, however, clear to me that such documents, if they existed, were clearly relevant to the disposal of ancillary matters. I thus allow Item 7 of the Husband’s request for discovery.

85     I come now to the Husband’s request for documents relating to the Wife’s insurance policies as set out in Items 10 – 12. Counsel for the Husband argued that these documents were relevant in determining whether they formed part of the matrimonial pool of assets. Further, any loans taken out would have been a draw down on the matrimonial assets. Counsel for the Wife contended, in response, that these insurance policies had been acquired before marriage and so were not part of the matrimonial pool, and that in any event, no loans had been taken out.

86     I allow the Husband’s request in relation to Items 10 – 12. As I have noted above (at [81]), it is the court that decides whether a particular asset is indeed a matrimonial asset. These documents sought were clearly relevant towards determining whether they were matrimonial assets or not.

87     The final request, in Item 14, was for the Wife to furnish all documents supporting her replies to the Husband’s request for interrogatories. This request is denied. What the Husband has sought, in interrogatories, was similarly sought in his request for discovery. He basically wanted information as to the Wife’s sources of income, whether she had any other bank accounts apart from those disclosed in the AOM, details about the joint account she held with their daughter, and her insurance policies. Given my orders in respect of his request for discovery and interrogatories, I did not think it was necessary to grant his request in respect of Item 14.

88     To sum up, the Husband’s request in relation to Items 2, 3, 5, 6, 7, 8, 10 – 12 are allowed. The Husband’s request in relation to Item 14 is disallowed.

Summary of orders made

89     These are the orders that I make in respect of the four applications:

SUM 633

(a)     The Defendant shall answer the interrogatories as set out in Item 32 of the Request for Interrogatories annexed to this summons on affidavit, to the best of his knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 632

(b)     The Defendant shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1, 2, 3, 4, 6, 7, 8, and 9 of the Request for Discovery annexed to this summons, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(c)     The Defendant shall also state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of:

(i)       the bank statements of Company B from 30 May 2022 to date; and

(ii)       the audited financial statements of Company B for the financial years 2022 and 2023;

whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

SUM 682

(d)     The Plaintiff shall answer the following interrogatories set out in Items 13, 14, 28, and 29 in Schedule B annexed to this summons on affidavit, to the best of her knowledge, information and belief, pursuant to Rule 69 of the Family Justice Rules 2014.

SUM 684

(e)     The Plaintiff shall state on Affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of each of the following documents as set out in Items 2, 3, 5, 6, 7, 8, 10, 11, and 12 of Schedule A annexed to this summons, whether the same is in her possession, custody or power, and if not in her possession, custody or power, when she parted with it and what has become of it.

90     In addition to the above orders, I also order that:

(a)     Compliance affidavits are to be filed and served by 14 June 2024, by 5pm.

(b)     Costs submissions in respect of SUM 633, 632, 682 and 684 are to be filed and served by way of letter by 16 May 2024 by 5pm, limited to 3 pages each.

Conclusion

91     I conclude with one brief observation. It was not lost on me that there was a great deal of acrimony between the parties. That is, perhaps, to be expected in a family dispute, but I must stress that the Family Court is not a place for parties to do battle.

92     It remains for me to thank counsel for their assistance.

[note: 1]Statement of Particulars dated 2 August 2022 at 1(c)(vii).

[note: 2]Minute Sheet dated 9 November 2023.

[note: 3]SUM 633, Request for Interrogatories, Items 1 – 4.

[note: 4]SUM 633, Request for Interrogatories, Items 5 – 6.

[note: 5]SUM 633, Request for Interrogatories, Items 7 – 8.

[note: 6]SUM 633, Request for Interrogatories, Items 9 – 11.

[note: 7]SUM 633, Request for Interrogatories, Items 12 – 15.

[note: 8]SUM 633, Request for Interrogatories, Items 16 – 17.

[note: 9]SUM 633, Request for Interrogatories, Items 18 – 29.

[note: 10]SUM 633, Request for Interrogatories, Items 30 – 32.

[note: 11]SUM 632, Request for Discovery, Items 1 – 10.

[note: 12]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [12].

[note: 13]SUM 632, Request for Discovery, Items 11 – 14.

[note: 14]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25].

[note: 15]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [31].

[note: 16]SUM 682, Schedule B, Items 8 – 12.

[note: 17]SUM 682, Schedule B, Items 13 – 14.

[note: 18]SUM 682, Schedule B, Items 28 – 29.

[note: 19]SUM 684, Schedule A, Items 2 – 3 (Sources of Income); Items 5 – 8 (bank account details); Items 10 – 12 (Insurance Policies).

[note: 20]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [34].

[note: 21]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [29].

[note: 22]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024 at [41] – [43].

[note: 23]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at [25] – [31].

[note: 24]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 13.

[note: 25]Wife’s Affidavit filed in support of SUM 632 and SUM 633 dated 27 February 2024 at p 14.

[note: 26]Husband’s AOM at pp 30 – 33.

[note: 27]Wife’s Reply Affidavit filed 26 April 2024 at [5] – [7].

[note: 28]Wife’s Reply Affidavit filed 26 April 2024 at p 35.

[note: 29]Wife’s Reply Affidavit filed 26 April 2024 at p 33.

[note: 30]Husband’s Affidavit filed in support of SUM 682 and SUM 684 dated 1 March 2024.

[note: 31]Wife’s AOM at p 89.

[note: 32]Wife’s AOM at p 91.

[note: 33]Wife’s AOM at p 91.

[note: 34]Wife’s AOM at p 91.

[note: 35]Wife’s AOM at p 93.

[note: 36]Wife’s AOM at p 93.

[note: 37]Wife’s AOM at p 93.

[note: 38]Wife’s AOM at p 96.

[note: 39]Wife’s AOM at p 96.

[note: 40]Wife’s AOM at p 71.

[note: 41]Wife’s Affidavit dated 28 March 2024 at [30].

"},{"tags":["Family Law – Interlocutory Injunction"],"date":"2024-05-09","court":"Family Court","case-number":"D 2347/2023 (FC/SUM 3775/2023)","title":"WWG v WWH","citation":"[2024] SGFC 23","url":"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%2F31478-SSP.xml","counsel":["Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff","Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant"],"timestamp":"2024-05-15T16:00:00Z[GMT]","coram":"Chia Wee Kiat","html":"WWG v WWH

WWG v WWH
[2024] SGFC 23

Case Number:D 2347/2023 (FC/SUM 3775/2023)
Decision Date:09 May 2024
Tribunal/Court:Family Court
Coram: Chia Wee Kiat
Counsel Name(s): Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) for the Plaintiff; Mr Poh Jun Zhe, Malcus (Mo Junzhe) (Chung Ting Fai & Co.) for the Defendant
Parties: WWG — WWH

Family Law – Interlocutory Injunction

9 May 2024

District Judge Chia Wee Kiat:

1       The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”. The parties were married on 22 May 2011 and an Interim Judgment of Divorce was granted on 1 February 2024. They have three children, aged 14, 12 and 9.

2       The parties have a number of assets that included several immovable properties.[note: 1] FC/SUM 3775/2023 (“SUM 3775”) is the Wife’s application for an injunction to restrain the Husband from selling one of the immovable properties, [Property A], pending the determination of the ancillary matters. Property A is a condominium in the sole name of the Husband.[note: 2]

3       I heard and dismissed the application on 13 March 2024. The Wife filed a request for further arguments on 20 March 2024. I heard the further arguments on 4 April 2024 and affirmed my decision to dismiss the application.

4       As the Wife has appealed against my decision vide HCF/RAS 5/2024 filed on 17 April 2024, I now set out the grounds of my decision.

The Wife’s application

5       The Wife says that Property A is a matrimonial asset.[note: 3] She says that she paid for the fixture and fittings and also the downpayment. She says that she resided at Property A with her three children from around 2017 to 16 April 2017.[note: 4] As a result of the Husband’s violent behaviour and gambling habit, she tried many times to divorce the Husband and each time the Husband would promise that he would change.[note: 5]

6       The Wife says that the Husband had, on 19 December 2021, agreed to give her 20% of the net sale proceeds in the event that Property A is sold. This was in return for the Wife forbearing to pursue divorce proceedings.[note: 6] She exhibited an email from the Husband where he stated as follows:[note: 7]

I will give [Wife] 20% share of nett sales proceeds in the event of sale of [Property A] condo, and if we buy another replacement property she shall maintain her 20% share of new property.

7       The Wife says that the Husband also promised many times that the children and her can stay in Property A.[note: 8] However, the Husband broke his promises and continued to be violent. She then started the divorce proceedings.[note: 9]

8       The Wife says that the Husband is trying to sell Property A to pay off his gambling debts and failed investments[note: 10] and wants an injunction to stop him from doing so.

The Husband’s response

9       The Husband does not dispute that Property A is a matrimonial asset.[note: 11]

10     The Husband says that as the marriage is a sole income marriage,[note: 12] he would take up loans using credit cards to fund the purchase of the matrimonial properties. Thereafter, for tax and stamp duty purposes, he would arrange for the properties to be held under the Wife’s name.[note: 13]

11     The Husband says there are four immovable properties in the Wife’s sole name.[note: 14] One of the immovable properties, a HDB flat, was the matrimonial home which he had fully paid for before the marriage.[note: 15] The Husband says that as part of the family financial arrangement, he transferred the HDB flat to the Wife so that he was able to free up his name and avoid ABSD to purchase Property A.[note: 16]

12     The Husband says that apart from the immovable properties, the matrimonial assets included the parties’ bank accounts and CPF monies.[note: 17] The Husband says that the Wife had throughout the marriage, transferred matrimonial monies to her parents or brother in China without his consent. The Husband believes that the Wife has bank account and immovable property in China.[note: 18]

13     The Husband says that the value of the matrimonial pool is about $2,285,030.[note: 19] As the marriage lasted for about 12 years,[note: 20] the Husband believes that the Wife is entitled to about 30% of the matrimonial pool. Even if, for the sake of argument, the Wife is entitled to 50% of the matrimonial pool which is about $1,142,515, the money in the matrimonial pool is sufficient to meet the Wife’s share of the matrimonial assets.[note: 21]

14     The Husband says that if Property A is sold for $1,560,000, after repaying the outstanding loan which is about $802,619.51 and after refunding his CPF of about $403,071.04, the cash sale proceeds would only be about $354,309.45.[note: 22] This is around 15.5% of the matrimonial pool.[note: 23]

15     Hence, the sale of Property A does not prejudice the Wife and the estimated sale proceeds can in any event be notionally added back into the matrimonial pool for division.[note: 24] On the other hand, the Husband says that he will suffer irreversible harm if he is sued by the banks and made a bankrupt if he is unable to pay off his credit card debts.[note: 25]

Analysis

16     Where any matrimonial proceedings are pending, the court may grant an injunction to prevent the sale of a matrimonial asset pending the ancillary matters hearing. This is pursuant to s 132 of the Women’s Charter 1961 (2020 Revised Edition) (“the Charter”), which states as follows:

132.—(1)    Where —

(a)    any matrimonial proceedings are pending;

…

the court has power on application —

(f)    to set aside any disposition of property, if it is satisfied that the disposition of property has been made within the preceding 3 years, with the object on the part of the person making the disposition of —

(i)    reducing that person’s means to pay maintenance; or

(ii)   depriving that person’s wife, former wife, incapacitated husband or incapacitated former husband of any rights in relation to that property; and

(g)    if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition.

(2)    In this section —

“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made;

“property” means property of any nature, movable or immovable, and includes money.

17     Section 132 of the Charter was considered in Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant) (“Lee Chi Lena”) [2011] SGHC 91 where Choo Han Teck J set out the following principles:

Given the time lag between the initiation of matrimonial proceedings and a final judgment of divorce, disposing matrimonial assets and translating them into new assets by the parties in the ordinary course of living and investment is frequently necessary, especially when each of them are seeking to begin a new life. Thus it cannot be that every decision to dispose of a matrimonial asset by one spouse is susceptible to injunctive intervention by the other spouse. A balance must be struck. Therefore, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. In determining whether there is prejudice in this context, the court should take into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party. Hence, in a case where there is only one matrimonial asset of substantial value and a husband wishes to dispose of it, a court should allow a wife's application for an injunction because there are no adequate remaining assets to satisfy a likely award in her favour in those circumstances. On the present facts, however, that is not the case. There are other properties of substantial value available.

[emphasis in bold added]

18     As noted in the above passage, whether or not an injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. The question of prejudice is to be determined by taking into account whether there are adequate matrimonial assets which will remain to satisfy the likely division proportion a court will make in favour of the non-disposing party.

19     Although the Wife bears the burden of proof, she made no effort to show why the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. This is not withstanding the fact that she had every opportunity to respond to the Husband’s reply affidavit, where he had set out clearly his computation of the asset pool, the likely division proportion and why the Wife would not be prejudiced.

20     The Wife says that parties are “still in the process of preparing their cases for the division of assets, so neither can submit with the exactitude of evidence their contribution”.[note: 26] I did not find this to be a convincing explanation for the lack of effort on her part, bearing in mind that she is the party making the application. She could have at least provided a prima facie case of the likely division proportion from her perspective, especially since she had the benefit of reading the Husband’s reply affidavit.

21     Instead, the Wife submitted that Property A was a matrimonial home and if the property is sold, she “will be prejudice (sic) in that it (sic) would not be able to purchase [Property A] from the Defendant” [note: 27]. Even on this point, I noted that neither her supporting affidavit nor reply affidavit reveal any intention on her part to purchase Property A from the Husband. Nor did she explain in what way she would be prejudiced if she could not own Property A. It should be noted that she is the sole legal owner of the family’s HDB flat which she occupies with the children and three other immovable properties. So there is no question of the Wife and the children not having a place to stay.

22     What is clear from her evidence is that the parties had envisaged that Property A may be sold, as she was promised a 20% share of the sale proceeds in the event of a sale. The Wife was aware that the Husband had difficulty holding on to Property A and might be compelled by the credit card company to sell the property if he could not repay his debts.[note: 28]

23     As the Wife did not put forth any evidence that would enable me to properly consider if she would be prejudiced by the sale of Property A, I was left with the Husband’s evidence which shows that there are adequate matrimonial assets which will remain to satisfy the likely division proportion in favour of the Wife. In the circumstances, I found that the Wife had not discharged the burden of proof.

24     The Wife had clarified in her further arguments that she was relying on the principle in American Cyanamid Co v Ethicon Ltd [1975] 1 ALL ER 504 (“American Cyanamid”).[note: 29] She submitted that the purpose of the interlocutory injunction is to maintain the status quo pending the trial and the balance of convenience lies in granting the interlocutory relief.[note: 30]

25     In my view, I do not think that the American Cyanamid principle is applicable in the context of pending matrimonial proceedings where the injunctive relief being sought is to prevent the sale of a matrimonial asset pending the determination of the ancillary matters. This is because there is an express statutory provision in the Charter that applies specifically to this type of injunction.

26     I find support for this line of reasoning in TQ v TR [2009] SGCA 6 where the Court of Appeal (“CA”) discussed the interaction of statute law and the common law in the context of the legal status of a prenuptial agreement in Singapore. The CA held (at [50]):

Put simply, where one or more of the provisions of the Act expressly covers a certain category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is silent, then the legal status of the prenuptial agreement concerned will be governed by the common law.

[emphasis in original]

27     By a parity of reasoning, s 132 of the Charter is the governing law in the present case.

28     In any event, as noted in TRW Inc v Terus Jaya Auto (S) Pte Ltd [1992] SGHC 31, a case authority cited by the Wife:

The principle in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 is that an injunction should not be granted unless otherwise damage is likely to be caused which could not be remedied by money compensation. In a case where the grant of an injunction may result in damages not being compensable, the court must determine the case according to the balance of convenience.

29     As noted earlier, the Wife has not shown that the remaining matrimonial assets will not be sufficient to satisfy the likely division proportion in her favour. Neither has she shown that damage is likely to be caused which could not be remedied by money compensation. Consequently, even on the American Cyanamid principle, she would not have succeeded in her application for an interlocutory injunction.

30     For the above reasons, the application was dismissed.

31     The Husband had offered to provide the Wife with a statement of accounts on how the sale proceeds of Property A would be utilised. The balance of the sale proceeds is to be deposited into the conveyancing account of his solicitors pending the outcome of the ancillary matters hearing. In light of the concession by the Husband, I made the order accordingly.

[note: 1]Wife’s affidavit dated 9 December 2023 (P1) at [5]; Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 2]Husband’s affidavit dated 8 February 2024 (D1) at p 8.

[note: 3]Wife’s affidavit dated 9 December 2023 (P1) at [10].

[note: 4]Wife’s affidavit dated 9 December 2023 (P1) at [11].

[note: 5]Wife’s affidavit dated 9 December 2023 (P1) at [14].

[note: 6]Wife’s affidavit dated 9 December 2023 (P1) at [15].

[note: 7]Wife’s affidavit dated 9 December 2023 (P1) at p 28.

[note: 8]Wife’s affidavit dated 9 December 2023 (P1) at [16].

[note: 9]Wife’s affidavit dated 9 December 2023 (P1) at [18].

[note: 10]Wife’s affidavit dated 27 February 2024 (P2) at [23].

[note: 11]Husband’s affidavit dated 8 February 2024 (D1) at [7].

[note: 12]Husband’s affidavit dated 8 February 2024 (D1) at [15(e)].

[note: 13]Husband’s affidavit dated 8 February 2024 (D1) at [15(b)].

[note: 14]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 15]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 16]Husband’s affidavit dated 8 February 2024 (D1) at [27].

[note: 17]Husband’s affidavit dated 8 February 2024 (D1) at [25].

[note: 18]Husband’s affidavit dated 8 February 2024 (D1) at [28].

[note: 19]Husband’s affidavit dated 8 February 2024 (D1) at [30].

[note: 20]Husband’s affidavit dated 8 February 2024 (D1) at [33].

[note: 21]Husband’s affidavit dated 8 February 2024 (D1) at [34].

[note: 22]Husband’s Submissions dated 11 March 2024 at [11].

[note: 23]Husband’s Submissions dated 11 March 2024 at [12].

[note: 24]Husband’s affidavit dated 8 February 2024 (D1) at [36].

[note: 25]Husband’s affidavit dated 8 February 2024 (D1) at [37].

[note: 26]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [6].

[note: 27]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [9].

[note: 28]Wife’s affidavit dated 27 February 2024 (P2) at [20].

[note: 29]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [11].

[note: 30]M/ Rajwin & Yong LLP letter dated 20 March 2024 at [13].

"},{"tags":["PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction"],"date":"2024-04-30","court":"Family Court","case-number":"FC/S 17/2020","title":"WWE v WWF","citation":"[2024] SGFC 21","url":"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","counsel":["Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff","Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant."],"timestamp":"2024-05-06T16:00:00Z[GMT]","coram":"Shobha Nair","html":"WWE v WWF

WWE v WWF
[2024] SGFC 21

Case Number:FC/S 17/2020
Decision Date:30 April 2024
Tribunal/Court:Family Court
Coram: Shobha Nair
Counsel Name(s): Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) for the Plaintiff; Thulasidas s/o Rengasamy Suppramaniam (Ling Das & Partners) for the Defendant.
Parties: WWE — WWF

PROBATE – Revocation of Grant – Non-production of Will – Handwriting Analysis – Concurrent Proceedings in Foreign Jurisdiction

30 April 2024

District Judge Shobha Nair:

Introduction

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.

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.

Facts

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[note: 1] 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.

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.[note: 2] 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.

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.

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”.[note: 3] 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.

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.

8       Against this factual backdrop, the respective cases of the parties were positioned.

Is the will executed on 3 August 2012 valid?

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 (Yogambikai Nagarajah v Indian Overseas Bank & anor. appeal).[note: 4] 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.

(a)   Legislative requirements

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:

Section 5(2):     A will shall be treated as properly executed if its execution conformed to the internal law in force –

(a)     in the territory it was executed;

(b)     in the territory where the testator was domiciled at the time –

(i)     When the will was executed; or

(ii)    Of his death.

(c)     in the territory where the testator habitually resided at either of the times referred to in paragraph (b); or

(d)     in the state of which the testator was a national at either of the times referred to in paragraph (b)

Section 5(3):     Without prejudice to subsection (2), the following shall be treated as properly executed:

(a)     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.

(b)     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.

Section 6(1):     No will shall be valid unless it is in writing and executed in the manner mentioned in subsection (2).

Section 6(2):     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.

Section 6(3):     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 -

(b)     that a blank space shall intervene between the concluding word of the will and the signature

11     The burden of propounding a will lies in every case upon the party propounding the will (ULV v ULW).[note: 5] 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.

(b)   The evidence of the witness to the execution of the will of 3 August 2012.

12     A Malaysian lawyer who was one of 2 witnesses of the 2012 will provided an affidavit[note: 6] 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.

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.

14     The lawyer/witness went on to explain that he was handed 2 copies of a 3 page will and “I glanced through these documents and noticed it was two copies of a will dated 3 August 2012 with three pages”.[note: 7] 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.

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.

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.[note: 8] 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.

The weight to be accorded to the evidence of the mistress of the deceased.

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.

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.

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.[note: 9]

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.[note: 10] 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:

“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 (sic).”[note: 11]

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.

To what extent should reliance be placed on the handwriting analysis?

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)[note: 12] 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.[note: 13]

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 “original inked signatures of XXX...”[note: 14] 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.

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.

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.

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 Robson & Wakefield v Rocke[note: 15] who said with reference to such analysis that “…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” 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.[note: 16] 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.

Does the delay in the production of the 2012 will create suspicion as to its authenticity?

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.

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[note: 17]. 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.

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[note: 18] 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.[note: 19]

Conclusion

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 Sudha Natarajan v The Bank of East Asia Ltd.[note: 20] 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.

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.

[note: 1]Paragraph 5 of the affidavit of the deceased’s mistress dated 22 November 2022.

[note: 2]Paragraph 10 of the defendant’s affidavit of 10 January 2023.

[note: 3]Exhibit SAAS -1 of the defendant’s affidavit of testamentary scripts dated 4 November 2020.

[note: 4][1990] 2SLR (R) 774.

[note: 5][2019] SGHCF 2.

[note: 6]Affidavit of 23 November 2022.

[note: 7]Ibid. at paragraph 11.

[note: 8]Paragraph 23 of 5 September 2023 submissions.

[note: 9]Page 160-162 of NE (Day 3).

[note: 10]Page 62, lines 10-13 of NE (Day 2).

[note: 11]Page 78 at lines 16 – 22, NE (Day 2).

[note: 12]See pages 10-12 of the report exhibited in the expert’s affidavit of 5 January 2023.

[note: 13]Paragraph 5 of the expert’s affidavit of 5 January 2023.

[note: 14]Paragraph 5.1 on page 3 of the report exhibited in the affidavit of the handwriting expert.

[note: 15](1824) 2 Add 53 at [79-80].

[note: 16]Fancini, Simone Ling, “Expert Handwriting Testimony: Is the Writing Really on the Wall?”11 Suffolk J. Trial & App. Advoc. 99 (2006).

[note: 17]Lines 3-17 at pages 146-147 of NE (Day 3).

[note: 18]At page 1 of the Reply of the plaintiff.

[note: 19]Paragraphs 9, 12 of affidavit of 25 November 2022 and lines 2-4 at page 42 of NE (Day 2).

[note: 20][2016] SGCA 66.

"},{"tags":["Succession and Wills – Testamentary capacity – Undue Influence – Whether the testator lacked testamentary capacity at the time of making and executing will – Whether the testator understood the will – Whether the testator made and executed will under undue influence"],"date":"2024-04-29","court":"Family Court","case-number":"Suit No. 1 of 2022","title":"WWI v WWJ","citation":"[2024] SGFC 22","url":"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","counsel":["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."],"timestamp":"2024-05-03T16:00:00Z[GMT]","coram":"Jason Gabriel Chiang","html":"WWI v WWJ

WWI v WWJ
[2024] SGFC 22

Case Number:Suit No. 1 of 2022
Decision Date:29 April 2024
Tribunal/Court:Family Court
Coram: Jason Gabriel Chiang
Counsel Name(s): 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.
Parties: WWI — WWJ

Succession and Wills – Testamentary capacity – Undue Influence – Whether the testator lacked testamentary capacity at the time of making and executing will – Whether the testator understood the will – Whether the testator made and executed will under undue influence

29 April 2024

District Judge Jason Gabriel Chiang:

Introduction

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.

2       During the Matriarch’s lifetime, 3 wills had been executed:

(a)     The 1st Will, which was executed on 22 March 2005 (“1st Will”), bequeathed the Matriarch’s estate, which mainly consisted of the half share of a landed property (the “Estate”), 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 1st Will;

(b)     The 2nd Will, which was executed on 6 April 2017 (“2nd Will”), 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 1st Son. The Plaintiff was appointed as her sole executor and trustee under the 2nd Will; and

(c)     The 3rd Will, which was executed on 19 June 2017 (“3rd Will”), largely mirrored the 1st 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 3rd Will.

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:

(a)     The 3rd Will is declared valid, and thus, revoked the prior 1st and 2nd Wills, regardless as to whether those wills were valid or not;

(b)     The 3rd Will is declared invalid, but the 2nd Will is declared as valid, and thus, revoked the 1st Will, regardless of whether it was valid;

(c)     The 2nd and the 3rd Wills are declared invalid, and the 1st Will is declared to be valid and effective; and

(d)     The 1st, 2nd and 3rd Wills are all declared to be invalid and thus section 7 of the Intestate Succession Act 1967 (“ISA”) applies for the distribution of the estate to the various beneficiaries.

4       Ultimately, I held that both the 2nd and 3rd 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 1st Will had been procured by undue influence to invalidate it. Therefore, the 1st Will was given effect. The Plaintiff and the Defendant, both dissatisfied with my decision, filed their respective appeals.

Facts

The parties

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:

(a)     1st Daughter;

(b)     2nd Daughter;

(c)     3rd Daughter;

(d)     1st Son, the Defendant;

(e)     4th Daughter;

(f)     2nd Son, who was given up for adoption to another family and was wholly uninvolved in these proceedings;

(g)     5th Daughter;

(h)     6th Daughter;

(i)     7th Daughter;

(j)     8th Daughter;

(k)     3rd Son, who was informally adopted into the family, being the son of the Patriarch with another woman;

(l)     4th Son, the Plaintiff;

(m)     9th Daughter; and

(n)     10th Daughter.

(collectively referred to as the “Children”).

The 4th, 5th, 6th, 7th, 8th, 9th and 10th Daughters were the 7 named daughters in the 1st and the 3rd Wills.

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 2nd floor, while the Matriarch occupied the 1st floor of the property.

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.

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:

(a)     Himself, the Plaintiff;

(b)     Dr FN, who had assessed P for issues of mental capacity in July 2017;

(c)     3rd Daughter;

(d)     8th Daughter;

(e)     Estate Planner 1, who had drafted the 2nd Will and witnessed the execution of the same;

(f)     Estate Planner 2, who had witnessed the execution of the 2nd Will;

(g)     2nd Daughter; and

(h)     3rd Son.

9       The Defendant had called 6 witnesses, 2 of whom were expert witnesses:

(a)     Himself, the Defendant;

(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;

(c)     Dr JBL the doctor who assessed the Matriarch’s mental capacity before she executed the Transfer Instrument for 2 JM;

(d)     Dr NBY, the doctor who assessed the Matriarch’s mental capacity before she executed the Statutory Declaration;

(e)     Mr CJH, the lawyer who had drafted the 1st and the 3rd Wills and was also a named witness to the execution of these Wills; and

(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.

10     Both the Plaintiff and the Defendant had their respective translators, but parties agreed that it was not necessary to call them as witnesses.

Background to the dispute

Brief history of the family

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 “Family Business”). The Family Business was largely managed with the assistance of the 1st, 2nd and 3rd Daughters, and the 3rd Son as well as the Defendant. Sometime in the 1990s, the 2nd Daughter left the business as she got married and the 3rd Sister left and became a real estate agent.

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.

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.

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.

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.

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 1st 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.

The Family Residence

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 “old 4 JM”). 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.

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.

19     Sometime around 1980, the Patriarch purchased a house in the Defendant’s name (“old 10 VR”). 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. “new 10 VR” and “10A VR”). 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. “2 JM” and “new 4 JM”). 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.

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 1st to 10th Daughters, and the 3rd and 4th 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 1st to 3rd Daughters and the 3rd Son, as the other Children progressively moved to their own residences. Subsequently, the new 4 JM was transferred to the 1st to 3rd Daughters and the 3rd Son on 26 August 1988, and they independently paid off the remaining loan on the property.

The Patriarch’s passing

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:

(a)     100% of cash or equivalent to the Matriarch;

(b)     50% of 2 JM to the Matriarch and the other 50% of 2 JM to the Plaintiff; and

(c)     25% of the Family Business to the Defendant, and 12.5% to each of the 1st Daughter and the 3rd Son as they were still involved in the management of the Family Business and the 1st and 2nd Daughters already had certain shares of the Family Business.

The Defendant acknowledged that he unfortunately neglected to consider his 7 younger sisters, i.e. the 4th to 10th 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.

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.

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 1st 2nd and 3rd Daughter’s and the 3rd 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.

Arrangements for the Matriarch after the Patriarch’s passing & the execution of the 1st Will.

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 1st 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 1st Will.

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.

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 2nd 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.

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 1st 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 1st Will and he contacted Mr CJH to draft the 1st 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 4th to 10th Daughters and that the remainder would go to him. Mr CJH then attended to the Matriarch for the execution of the 1st Will at the Defendant’s home on 22 March 2005.

28     The Plaintiff alleged that 1st 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.

29     The other Children subsequently came to know of the 1st Will. There were some discussions over executing a new will to replace the 1st Will, particularly with the 8th Daughter having conversations with the Matriarch over this. However, the Matriarch did not change the 1st Will.

The Matriarch’s dementia and the execution of the 2nd Will

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.

31     Unbeknownst to either the Plaintiff or the Defendant, it was suddenly revealed in the testimony of the 3rd 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.

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 (“MMSE”) 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.

33     Notwithstanding this recommendation, the Plaintiff followed through with arrangements for the Matriarch to execute a Lasting Power of Attorney (“LPA”) and the 2nd 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 1st 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 1st 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 2nd Will.

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.

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.

The Matriarch’s execution of the 3rd Will, Transfer Instrument & Statutory Declaration

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 “renovation permit”. 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 1st Will.

37     The Defendant reapproached Mr CJH, who had helped prepare the Patriarch’s will and the Matriarch’s 1st Will, to assist the Matriarch for the 3rd Will. Purportedly on behalf of the Matriarch, the Defendant informed Mr CJH to prepare a fresh will which was similar to the 1st Will save that the gifts to each of the 4th to 10th Daughters was increased from S$5,000 to S$10,000. Mr CJH made the necessary preparations.

38     On 19 June 2017, the Defendant brought the Matriarch to Mr CJH’s office to execute the 3rd 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 3rd Will, and amended the draft based on this. Thereafter, the Matriarch executed the 3rd Will in the presence of Mr CJH and his colleague in the Defendant’s car. Mr CJH recalled that at least after the 3rd 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.

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 “renovation permit” 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 3rd 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 & Wee LLP (“HW”).

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.

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.

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.

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.

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 (“SLA”) required that the Matriarch execute a statutory declaration and to file up a form, “Application for Replacement of Certificate of Title”. Hence, the Defendant made arrangements for this.

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 “considered invalid in view of a high likelihood of being susceptible to manipulation and influence”. 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 2nd Will and was also not in support of the Defendant’s position on the validity of the 3rd Will.

46     Around 20 August 2017, the 8th Daughter, who had been provided with Dr FN’s report from the Plaintiff also forwarded this to the Defendant. The 8th 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 2nd Will and an LPA. This was the 1st time that the 2nd 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.

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.

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.

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 3rd Will upon the Matriarch’s passing.

The Matriarch’s passing and the application for a grant of probate.

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.

51     On 11 February 2020, another law firm engaged by the Defendant then, Wee, Tay & Lim LLP (“WTL”) to apply for a grant of probate for the Matriarch’s estate, wrote to the other Children on this stated intention.

52     On 13 February 2020, the Defendant followed up with an email to the other Children. The 8th 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 3rd Will, failing which there may be a contest of the validity of the 3rd 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 8th Sister and the Defendant arranged to have a discussion.

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 2nd Will and followed up with another reminder on 20 February 2020. The Plaintiff provided a copy of the 2nd 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 & Co (“GJC”).

54     On 21 February 2020, the 8th Daughter, speaking purportedly on behalf of the 7 daughters (i.e. 4th to 10th 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 8th Daughter also clarified that the Matriarch’s bequeaths of S$10,000 to each of the 7 daughters (i.e. 4th to 10th 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 8th 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 3rd Will was the Matriarch’s true will and that he was no longer willing to gift his half share of 2 JM to the 4th to 10th Daughters beyond what the 3rd Will provided and stated:

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 "Deed of family arrangements.

Further correspondence was exchanged but this did not progress any further negotiations on a Deed of Family Arrangement.

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 3rd 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 3rd 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 3rd 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 3rd Will in FC/P 1753/XXXX (“P 1753”). 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.

56     Then on 19 August 2020, the Defendant filed a summons application, FC/SUM 2342/XXXX (“SUM 2342”) for the caveat to cease to have effect. On 26 September 2020, the Plaintiff then filed FC/SUM 2873/XXXX (“SUM 2873”) for leave to file a further affidavit and requested for the Court to invalidate the 3rd Will and to reinstate the 2nd 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 3rd Will and, in any event, the 3rd Will was procured by undue influence of the Defendant and that the Matriarch had executed the 2nd Will to bequeath her half share of 2 JM to the Plaintiff instead.

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 3rd Will in FC/PRG 5965/XXXX.

Events after the grant of probate

58     On 4 January 2021, the Defendant sought, through new solicitors, Lai Mun Onn & Co (“LMO”) 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.

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.

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.

61     On 3 May 2021, the Plaintiff instructed Kalco Law LLC (“KL”) 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.

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.

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.

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 3rd 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.

65     Given the delay in the matter, the Defendant, on 24 August 2021 filed HC/OS 801/XXXX (“OS 801”) for an order for 2 JM to be sold forthwith with vacant possession. At the 1st Pre-Trial Conference (“PTC”) for OS 801, the Plaintiff was directed to file and serve his reply affidavit by 15 September 2021, which he did. At the 2nd PTC, OS 801 was fixed for hearing on 2 November 2021. Both the Plaintiff and the Defendant confirmed at the 3rd PTC for OS 801 on 26 October 2021 that they were ready for the hearing to proceed.

66     However, at the hearing of OS 801 before Justice Pang Khang Chau (“Justice Pang”), 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 (“Suit 1”) on 23 December 2021, and OS 801 was stayed pending the outcome of these proceedings.

Brief Chronology of Suit 1 leading up to the trial

67     At the 1st Probate Case Conference (“PCC”) on 15 February 2022 before Assistant Registrar Miranda Yeo (“AR Yeo”), among other things, parties were directed to identify all the potential beneficiaries pursuant to the 1st, 2nd and 3rd Wills and in accordance with the ISA.

68     The Defendant had been initially represented by Sim Chong LLC for this matter but changed counsel to IRB Law LLP (“IRB”) on 28 February 2022.

69     At the 2nd 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 2nd 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.

70     At the 3rd 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.

71     At the 4th 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 (“AEICs”) 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

72     The Defendant then filed a notice of change of solicitors from IRB to Templars Law LLC (“Templars”) on 2 December 2022.

73     At the 5th 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.

74     At the 6th 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.

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.

76     At the 7th PCC before Assistant Registrar Colin Tan (“AR Tan”) 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.

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.

78     At the 8th 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 (“JPTC”).

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 3rd Son, who had previously not been listed as a witness.

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.

81     On 7 June 2023, the Plaintiff filed the AEIC of the 3rd 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 3rd 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.

82     At the JPTC on 26 June 2023 before me, several key matters were attended to:

(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;

(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 Auto Clean ‘N’ Shine Services (a firm) v Eastern Publishing Associates Pte Ltd [1997] SGCA 27; 2 SLR(R) 427 and Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] SGCA 15; [2010] 3 SLR 110 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;

(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;

(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:

(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 1st day of trial on 14 August 2023; and

(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.

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 (“OHRR”) 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.

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.

85     On 17 July 2023, the Defendant and the Plaintiff file their objections to the categorization of hearsay evidence.

86     On 18 July 2023, the Plaintiff filed a summons for the admission of the 3rd Son as an additional witness in FC/SUM 2268/XXXX (“SUM 2268”). The next day, 19 July 2023, the Plaintiff filed a notice of appointment of solicitor being CNPLaw LLP (“CNPLaw”). Given such new representation, there was no longer a need to consider any application of the Plaintiff for a McKenzie Friend.

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.

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.

89     On 28 July 2023, the Plaintiff, through CNPLaw, filed an OHRR stating that Parties consented to the admission of the 3rd 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 1st day of trial and no submissions were required.

90     On 31 July 2023, the Plaintiff further requested for administrative support of a Mandarin and Hokkien interpreter for the Plaintiff’s witnessed, the 3rd Daughter and the 3rd Son respectively. This was allowed.

91     On 2 August 2023, the Plaintiff filed a Supplemental List of Documents with a supporting affidavit.

92     Then, on 7 August 2023, parties filed the following:

(a)     The Defendant filed 2 volumes of Bundle of Affidavits, the 2nd Supplementary List of Documents, an Opening Statement and a Bundle of Authorities;

(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.

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.

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 3rd Further Supplementary List of Documents, which contained the attendance notes of Mr CJH and a purported English version of previously submitted WhatsApp Chats.

The trial of Suit 1

95     The trial of Suit 1 commenced on 14 August 2023 with the following:

(a)     We began with certain preliminary issues regarding the Defendant’s 3rd 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, “Ah Chek” 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;

(b)     I confirmed the sequence and scheduling of the witnesses and marked the relevant documents;

(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;

(d)     I granted order-in-terms for SUM 2268, allowing the 3rd 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;

(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 1st and 3rd 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;

(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

(g)     The Plaintiff was then called as the 1st witness at around 4 pm and completed his evidence-in-chief before cross-examination commenced.

96     On the 2nd 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 2nd 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.

97     On the 3rd 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 3rd Daughter was heard before coming back to complete the cross-examination and re-examination of the Plaintiff.

98     On the 4th 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 8th 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 8th Daughter that the courtroom could be cold and to bring a bottle of water, the 8th 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 8th Daughter was upset but the Plaintiff’s Counsel intervened to stop the conversation. When the 8th 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 8th 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 8th 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 2nd Daughter.

99     On the 5th 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 3rd Son, before starting with half a day of testimony of the Defendant.

100    On the 6th 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 “Ah Chek” 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.

101    On the 7th 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.

102    On the last and 8th 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.

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.

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.

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.

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.

107    In a half-day decision hearing on 15 January 2024, I delivered my oral grounds of decision and ordered that:

(a)     the 3rd Will executed on 19 June 2017 was pronounced to be invalid;

(b)     the 2nd Will executed on 6 April 2017 was pronounced to be invalid;

(c)     the 1st Will executed on 22 March 2005 was pronounced to be valid;

(d)     Grant of Probate (Order No. FC/PRG 5965/XXXX) issued to the Defendant on 10 December 2020 on the 3rd Will was revoked; and

(e)     the Defendant was entitled to apply for Grant of Probate for the estate of the Matriarch, deceased, on the basis of the 1st Will.

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.

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.

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 & Co.

Issues to be determined

111    Positionally, the Plaintiff took the position that the Matriarch had mental capacity to execute the 2nd Will, and that subsequent to that, in the 2 months thereafter, she lost the requisite mental capacity to execute the 3rd 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 2nd Will, that she had done so in a moment of lucidity.

112    Additionally, the Plaintiff claimed that for the 1st 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 1st Will and/or it was procured by way of undue influence of the Defendant.

113    On the other hand, the Defendant initially took the position that:

(a)     With regard to the 1st 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 1st Will, and there was no fraud or under influence in the procurement of the same;

(b)     In relation to the 2nd Will, the Matriarch did not have the requisite testamentary capacity, did not understand or approve of the contents of the 2nd Will and that there was undue pressure placed by the Defendant in tis execution; and

(c)     For the 3rd Will, the Matriarch had the requisite testamentary capacity, had understanding and approval of the contents of the 3rd Will, and there was no fraud or under influence in the procurement of the same.

114    I had questioned whether the positions on testamentary capacity of the Matriarch for the 2nd and 3rd 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 3rd 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 2nd Will but instead claimed that:

(a)     That the Matriarch did not understand and approve of the contents of the 2nd Will; and

(b)     There was undue influence by the Defendant, even though this was not specifically pleaded in the pleadings;

(c)     In the alternative, the Defendant claimed that the 1st Will was valid, should both the 2nd and 3rd Will be invalidated.

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.

116    Hence, the issues that the Court needs to determine are as follows:

(a)     Whether the 1st Will was valid and effective;

(b)     Whether the 2nd Will was valid and effective, and therefore revoked the 1st Will;

(c)     Whether the 3rd Will was valid and effective, and therefore revoked the 2nd Will and/or 1st Will; and

(d)     Whether neither the 1st, 2nd nor 3rd Will were valid and effective, and therefore the ISA should apply.

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.

The Applicable Law

117    It was agreed between Parties that the applicable law on the validity of Wills was pronounced in the case of Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (“Muriel Chee”) that 3 elements need to be satisfied:

(a)     the testator must have the requisite testamentary capacity to make a will;

(b)     the testator must have knowledge and understanding of the contents of the will and approved of it; and

(c)     the testator must be free from undue influence or the effects of fraud.

Testamentary Capacity

118    With regard to testamentary capacity, pursuant to the elaboration of Muriel Chee in ULV v ULW [2019] 3 SLR 1270 (“ULV v ULW”) at [25], the propounder of a will bears the burden to prove that:

(a)     the testator understands the nature of the act and what its consequences are;

(b)     the testator knows the extent of his property of which he is disposing;

(c)     the testator knows who his beneficiaries are and can appreciate their claims to his property; and

(d)     the testator is free from an abnormal state of mind that might distort feelings or judgments relevant to making the will.

119    As held at [217] to [219] of UWF & Anor v UWH & Anor [2020] SGHCF 22; [2021] 4 SLR 314 (“UWF v UWH”), 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.

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.

121    Pursuant to Muriel Chee 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.

122    It should be noted, that in BUV v BUU & Anor [2019] SGHCF 15; [2020] 3 SLR 1041, 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 Re BKR [2015] SGCA 26; [2015] 4 SLR that mental capacity under section 4(1) of the Mental Capacity Act 2008 (“MCA”) 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 “assistance” as defined under section 3(3) of the MCA: “[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”. In this regard, Justice Aedit Abdullah held at [109] to [110] that:

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.

110     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. 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. 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.

[emphasis added]

Knowledge and Approval of Contents

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.

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.

125    Whether testator approved of or had knowledge of the contents of the will is based on whether the Testator understood:

(a)     what was in the will when he/she signed it; and

(b)     what its effect would be.

Undue influence

126    As held in UWF v UWH 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.

127    The Plaintiff has also cited the UK case of Edwards v Edwards [2007] WTLR 1387, 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.

128    The Defendant further highlighted the UK Case of Wingrove v Wingrove (1885) 11 P D 81 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.

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.

Preliminary issue: Questions of the Matriarch’s Purported Testamentary Wishes

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.

10 & 10A VR & Renovations of 2 & 4 JM

131    The Plaintiff had raised arguments about 10 and 10A VR and the consequential redevelopment of 2 and 4 JM.

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.

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.

134    While neither side has provided evidence to support the sale of 10 & 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 & 2 JM, and a sum of S$160,000 being either a loan or return of monies to the Patriarch’s company.

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 inter vivos gift or trust.

136    This further did not shed light on what the Matriarch, The Matriarch’s testamentary wishes would be.

Issues of Business Management

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.

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.

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.

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 “Towkay Besar” 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.

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.

142    All evidence from 2nd, 3rd and 8th Daughters on the Matriarch’s, The Matriarch’s intentions appear to come from purported recounts from the 3rd 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.

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 2nd Will.

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 4th to 10th 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.

145    Having dealt with that I went chronologically backwards to consider the validity of the most recent 3rd Will executed in June 2017 to the validity of the 1st Will executed in March 2005.

Validity of the 3rd Will

146    With regard to the validity of the 3rd Will, I first considered whether the Matriarch had the requisite testamentary capacity to make this 3rd 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.

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 3rd 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 3rd Will and the further witness accounts of the Matriarch after the execution of the 3rd Will.

Mr CJH

148    The execution of the 3rd Will was only witnessed by Mr CJH and his associate. Mr CJH recounted having explained the 3rd 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 3rd 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.

149    The contents of the 3rd Will were largely similar to the 1st Will with the main difference being the increase in the quantum of the gifts to the 4th to 10th 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.

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 3rd Will was executed, but he definitely recalled telling him after the Matriarch had signed the 3rd 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.

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 3rd 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.

Dr FN

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 “considered invalid in view of the high likelihood of being susceptible to manipulation and influence”.

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.

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 1st Daughter as her elder sister and the Plaintiff as her elder brother. She also claimed that her 6th 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 2nd Son) and one who was informally adopted (i.e. the 3rd Son). The Matriarch also mixed up the order of her children.

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 3rd 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.

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:

(a)     she was unable to understand the information relevant to the decision;

(b)     she was unable to retain information long enough to make the decision; and

(c)     she was unable to weigh the information as part of the process of decision-making.

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.

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 3rd Will to be wholly unfounded.

159    While Dr Ngui did concede that there could be good days for the Matriarch where the 3rd 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 3rd 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.

Dr JBL & Mr DK

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 3rd Will on 19 June 2017. Mr DK, in concert with Dr JBL, only attended to the execution of the Transfer Instrument and not the 3rd 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 “more complicated”. 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 3rd Will, and on the evidence, neither Dr JBL nor Dr NBY were informed of this 3rd Will. Hence, there was no assessment of testamentary capacity when the Matriarch executed the 3rd Will.

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 3rd 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 3rd 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.

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.

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.

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:

(a)     the Plaintiff already has half of 2 JM;

(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

(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.

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.

166    Mr DK though, purportedly went through with the Matriarch the 3 implications of a transfer of her half share of 2 JM, that:

(a)     she would no longer be an owner of the property, which Mr DK believed she understood;

(b)     she would no longer have legal rights to reside there, which Mr DK believed she was not concerned about; and

(c)     her 2 sons would be the owners and could deal with the house without her permissions, which MR DK also believed she understood.

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.

168    Dr JBL noted that the Matriarch had incoherent responses to his questioning due to dementia and that she was “suggestible” based on her responses, which he noted in his notes that “caution needed when understanding”. 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.

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.

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.

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.

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.

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.

174    In any event, Dr JBL also could not speak to the Matriarch’s testamentary capacity to execute the 3rd 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.

175    It can be argued that since this assessment by Dr JBL was done 6 days after the execution of the 3rd Will and therefore it should apply to purportedly prove the Matriarch, had testamentary capacity when she executed the 3rd Will. However, given the Matriarch’s condition, there was insufficient evidence provided that she was in a moment of lucidity when she executed the 3rd Will.

Dr NBY & Ms LKK

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.

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.

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.

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 3rd 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.

Corroboration by other persons

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.

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.

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 8th Daughter to bring the Matriarch to see another set of lawyers, Tan Kim Seng & Partners, where the Matriarch did not appear to be able to recall what documents she had executed and placed her thumbprint on.

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 8th 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.

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 3rd 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 3rd Will.

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 3rd Will, and consequently could not understand and approve of the contents of the Will.

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.

Validity of the 2nd Will

187    Moving on to the circumstances surrounding the execution of the 2nd Will, while the Plaintiff is correct that pursuant to Rajaratnam Kumar (alias Rajaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit [2010] SGHC 164 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.

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 2nd 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 3rd Will, she had lacked the requisite mental capacity.

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.

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 2nd Will.

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.

192    In UWF and another v UWH and another [2021] 4 SLR 314 at [213] and [214], the Court held that “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.”

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 2nd 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.

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:

(a)     even though the Matriarch was 87 years old, it was not asked if any mental capacity assessment has been conducted recently;

(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;

(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;

(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 2nd Will, as she thought it would be helpful for The Matriarch;

(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;

(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 2nd Will;

(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

(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.

195    The Plaintiff claimed the Matriarch had the ability to recall key facts about executing the 2nd 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 2nd 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 “key facts” of the 2nd 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.

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 2nd 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.

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 “Ah Chek” 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 “Ah Chek” was referring to the Plaintiff or whether it could have referred to someone else like the Patriarch. Based on the evidence of the 3rd Daughter, the reference to “Ah Chek” in this recording was unlikely to be her late husband, the Patriarch, as he was never referred to as “Ah Chek”.

198    The 2nd 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 2nd Will were significantly different from the 1st Will and with a more complex mechanism for the Plaintiff’s 1st 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 1st Son was to the Matriarch. The Matriarch was unable to volunteer such information independently during that session with Estate Planner 1. The 2nd Will was also dissimilar to the 2 draft wills proposed to the Matriarch by the 8th Daughter, which the Matriarch had rejected.

199    The 8th Daughter, on the witness stand, questioned as to why would the Matriarch give such a significant bequest to the Plaintiff’s 1st Son, who was only 1 out of 20 grandchildren that the Matriarch had and whom she opined was not the Matriarch’s favourite grandchild.

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 2nd Will, either by way of a continuing mental capacity or there being a period of lucidity.

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 2nd 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.

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 2nd 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 2nd Will without such assessment and the terms were very favourable to him and his 1st son, and that it had to be explained by the Defendant to Estate Planner 1 who the Plaintiff’s 1st Son was for why he was being named in this 2nd 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.

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.

204    Having determined the 3rd and 2nd Will to be invalid, I turned next to the validity of the 1st Will.

Validity of the 1st Will

The Matriarch’s Testamentary Capacity & Knowledge & Approval of the contents of the 1st Will

205    The 1st Will was executed in 2005, 12 years before the 2nd Will, and long before the Matriarch had began suffering from dementia.

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 1st Will or whether there was any undue influence applied on the Matriarch by the Defendant.

207    Pursuant to Muriel Chee 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.

208    As highlighted in [46] of Muriel Chee, 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 1st Will. It is without a doubt that the Defendant stood to gain substantially from the 1st 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 4th to 10th Daughters.

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 1st 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 1st Will.

210    There has been evidence that Mr CJH had read out the contents of the 1st 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 1st 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.

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 “residue of the estate” 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.

212    While the Matriarch was illiterate, she had been described by her children as being capable and smart:

(a)     The 3rd Daughter described her as having an “independent mind” and that she was “business-minded”;

(b)     The 2nd Daughter described her as “smart” and “sharp”, had a “strong sense of survival”, a “strong sense of self-independence”, a “clear independent mind”, “strong will and amazing spirit” and that it was “hard to persuade her after she had made up her mind”;

(c)     The 8th 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 “play” her 2 sons for her own financial security.

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 1st Will.

214    Furthermore, evidence was provided by the 8th 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 8th 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.

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.

216    The evidence of 3rd Son further indicated that the Matriarch had told him that she knew she could change her 1st Will if she wanted to, and when it was broached with her on 2 occasions to take action to change the 1st Will, she did not take it up to execute a new Will.

217    Such conduct after the execution after the 1st Will further corroborate that she had knowledge of and approved of the contents of the 1st Will.

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 1st 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.

Purported Undue Influence

219    Having dealt with the 1st 2 limbs of the test in Muriel Chee, we move on to the 3rd limb, which the Plaintiff has the burden of proving, i.e. purported undue influence.

220    While Mr CJH was under the impression that the Matriarch was executing the 1st 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 “threat of physical confinement in addition to the mental distress and fear of facing the Defendant’s wrath”.

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 3rd Will or the Transfer Instrument, where the Matriarch made threatened to commit suicide after the execution of, or the 2nd Will, where the Matriarch raised concerns to the Defendant, there was no evidence that the Matriarch raised any concern after the execution of the 1st Will.

222    The Plaintiff argued that the Matriarch was in a weakened physical and mental condition when she made her 1st 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.

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.

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 3rd Son. However, as mentioned earlier, the credibility of the 3rd Son had been called into serious question.

225    The 3rd 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 1st Will. The 3rd 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 3rd Son suddenly recalled the purported 2nd 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 3rd 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.

226    All of the siblings who took the stand recounted that the 3rd Son had told them that he witnessed such a conversation, but 3rd Son emphatically claimed he did not tell any of his siblings such things.

227    The 3rd Son did however recount that he knew that the Matriarch was informed that if she did not like the 1st 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.

228    Even if the 1st 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.

229    The Plaintiff’s argument that “it is quite possible that the Defendant had sprung the 1st 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” and that she “could not call anyone for assistance or delay the execution of the 1st Will” was weak, and unsupported. There was also no corroboration of the Matriarch, having complained about this after the fact.

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 1st 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.

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.

232    The further fact that the Matriarch had the opportunity to revise the 1st Will, on 2 occasions based on the testimony of the 8th 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 1st Will was not procured by coercion.

233    Any allegations that the Defendant treated the Matriarch better after the 1st Will was executed and that monthly allowances were more regular afterwards, are inconsequential to any allegations of coercion.

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 1st Will, and that there was sufficient evidence that the Matriarch had knowledge of and approved of the contents of the 1st Will and as a free agent decided to make the bequests in the 1st Will.

235    In the circumstances, I found the 1st Will to be valid and effective.

Costs

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.

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.

238    Rule 855 of the FJR provides that:

Restriction of discretion to order costs

855.—(1)    Despite anything in this Division or under any written law, 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 in a probate action who has given notice with his defence to the party setting up the will that he —

(a)     merely insists upon the will being proved in solemn form of law; and

(b)     only intends to cross-examine the witnesses produced in support of the will.

(2)    Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, 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.

(3)    The Court may otherwise order, under paragraph (2), only on the ground that —

(a)    the trustee, personal representative or mortgagee has acted unreasonably; or

(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.

[emphasis added]

239    The Plaintiff further relied on G Raman, Probate and Administration law in Singapore and Malaysia, 4th Edition (2018), Lexis Nexis at [10.51] to [10.53] that:

E. Costs

[10.51]    Ordinarily, costs should follow the event. However, in probate actions, there is a permutation to this rule.

[10.52]    Costs in probate actions are based strictly on the justification or reasonableness of bringing such actions.

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 [Tristan and Coote’s (30th ed, 2006), P 747].

[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 [re Angulia deceased [1939] MLJ 100; 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.

240    Additionally, the Plaintiff raised the High Court case of WHR & Anor v WHT & Ors [2023] SGHCF 32 (“WHR v WHT”), 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:

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.

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.

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 WHR v WHT 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 2nd Will was valid and the 1st and 3rd Wills were invalid and called 8 witnesses in support of his case and to defend against the Defendant’s counterclaim.

242    Having delivered the decision that Rule 855 was inapplicable in this case, I sought parties to submit on the quantum of costs.

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 (“Appendix G”), 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 3rd 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.

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 2nd and 3rd Will. Additionally, the Plaintiff sought costs for and disbursements for having to initiate proceedings against the Defendant’s reliance on the 3rd 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.

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:

(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;

(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;

(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;

(d)     That was an aggregate of S$165,000;

(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;

(f)     Additionally, the Defendant was only successful in his claim that the 1st Will was valid and the 2nd Will was invalid, and was unsuccessful in proving that the 3rd Will was valid. In the circumstances, the Defendant should only be awarded 2/3 of such costs, i.e. S$73,333.33;

(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;

(h)     For disbursements of witnesses as Dr JBL, Dr NBY, Mr DK and Ms LKK were called for the purposed of propounding the 3rd Will, these disbursements were not allowed. For Mr CJH, given that he was called to speak to the validity of the 1st and 3rd Will, half of his disbursements were allowed, i.e. S$5,535/2 = S$2,767.50; and

(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.

Conclusion

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 3rd Will, the Plaintiff failed more significantly to discharge his burden in proving the 2nd Will and to show that the 1st 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.

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 2nd 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.

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.

"},{"tags":["Children and Young Persons Act – Care and Protection Orders – Youth progressing well and mother enjoying strong social and community support – Child Protector seeking early discharge of Care and Protection Order"],"date":"2024-04-18","court":"Youth Court","case-number":"Care and Protection Order No 183 of 2021","title":"Child Protector v GIH","citation":"[2024] SGYC 1","url":"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%2F31397-SSP.xml","counsel":["Rahmatunnisa binte Abdul Majeed (the Home) for the Child Protector","The youth in person","The parents of the youth in person","Mr Josephus Tan and Mr Syahrin Mohd Salleh as advisers."],"timestamp":"2024-04-25T16:00:00Z[GMT]","coram":"Patrick Tay Wei Sheng","html":"Child Protector v GIH

Child Protector v GIH
[2024] SGYC 1

Case Number:Care and Protection Order No 183 of 2021
Decision Date:18 April 2024
Tribunal/Court:Youth Court
Coram: Patrick Tay Wei Sheng
Counsel Name(s): Rahmatunnisa binte Abdul Majeed (the Home) for the Child Protector; The youth in person; The parents of the youth in person; Mr Josephus Tan and Mr Syahrin Mohd Salleh as advisers.
Parties: Child Protector — GIH

Children and Young Persons Act – Care and Protection Orders – Youth progressing well and mother enjoying strong social and community support – Child Protector seeking early discharge of Care and Protection Order

18 April 2024

District Judge Patrick Tay Wei Sheng:

1       A youth had been neglected by his parents since childhood and had been committed to a children’s home (the “Home”) until adulthood to protect him from delinquency. Yet so extraordinary was his progress in the Home that the Child Protector applied for his early discharge from it nearly two years before the end of that placement. I granted the application and now record the reasons for my decision.

2       The youth was 19 years of age. Since 2011, he had been placed on care and protection orders under the Children and Young Persons Act 1993 (2020 Rev Ed) (the “CYPA”) because of his neglect by his parents. The first of these orders had been made when he had been just six years of age. Thereunder, he had initially been placed in the care of a foster family.

3       In 2021, this foster placement was terminated when the police began investigations into the youth for his involvement in a criminal offence. While those investigations continued, the youth was committed to the Home, which was a place of safety, until he turned 21 years of age, pursuant to a further care and protection order. At the conclusion of the investigations into the criminal offence, the youth was issued a conditional written warning for 12 months.

4       The power of the Youth Court to discharge a care and protection order before its expiry is found in s 54(17) of the CYPA. It provides that the Youth Court may, on the application of the Director-General of Social Welfare or a child protector, discharge the care and protection order if it is “in the best interests of the person in respect of whom the order was made”.

5       The family circumstances of the youth were challenging. His father had been repeatedly incarcerated for drug-related offences and had since 2021 been serving eight years’ imprisonment for a sexual offence. His mother had been repeatedly incarcerated for drug-related offences and was on long-term anti-psychotic medication for Drug-Induced Psychosis and Opioid Dependence. His elder brother had recently served 18 months in the Reformative Training Centre for drug-related offences. And his two younger siblings were, like him, the subject of care and protection orders because of their neglect by their parents.

6       Yet the committal of the youth to the Home galvanised his mother and him to improve their lot. His mother sought help from the Institute of Mental Health for her mental health conditions. She shared her challenges with the professionals there and acknowledged that her mental health conditions had precipitated her neglect of her children. She followed the treatment regime on which she was placed, which treatment stabilised her condition to the extent that the frequency of her treatment was reduced to just thrice a year. And she availed herself of the support of her community, which included her relatives and social workers, to buttress her capacity to support the youth.

7       More importantly, the youth had progressed remarkably after his entry into the Home. He had enrolled in a vocational course to gain work experience while earning an income with which he could support his family. As part of that course, he was attached to the culinary division of a hotel. His manager at the hotel reported that he performed well in his work, showed strong leadership qualities, and was well on his way to achieving his vocational qualification. Indeed, within the culinary division of the hotel, the team on which the youth had been placed was “selected to prepare menu and food during the Grand Prix event that was held in Singapore and during a Farewell event at the Istana for former Singapore President, Mdm Halimah Yacob”.[note: 1] The youth expressed that he was “proud of himself and is thankful for the opportunities opened to him”, “aims to pursue his studies in the Polytechnic in Culinary Arts”, and “aspires to be a professional Chef at international level”. And the Home invited the youth to apply for its in-house scholarship were he to pursue those studies.[note: 2]

8       With the guidance of a case worker from the Ministry of Social and Family Development (the “MSF”), the youth learnt to manage his finances. From his attachment at the hotel, he received $1,900 each month. From these monies, he purchased groceries and other necessities for his family and gave his mother a further $100 each month. He even presented monetary gifts to the foster family that had taken him in during his younger years.

9       Even as the youth desired to return to independent living under the care of his mother, he remained cognisant of the challenges presented by their circumstances. To prepare for such independent living, the youth made efforts to overcome those challenges. For his mother, he worked on identifying the triggers that escalated her mental health conditions and on managing her in the event of such an escalation. For himself, he sought treatment with the National Addictions Management Service (the “NAMS”) to address the delinquent tendencies that had necessitated his committal to the Home. He completed this treatment and the NAMS assessed his risk of re-offending to be “low”.

10     The Home put together a comprehensive discharge plan for the youth. Access sessions for the youth to meet his family had been arranged on a weekly basis since late-2021. These sessions went smoothly, and overnight access sessions were arranged for the youth to spend his weekends with his family since late-2022. To secure the independent living of the youth going forward, the Home devised, and the youth agreed to, the following arrangements:

a)    [The youth] to complete his [vocational course] till Oct 2025 and to enlist for National Service after that.

b)    [The youth] to be attached with [the Home’s] Transition Support Officer (TSO) to support his reintegration transition. This will be for a period of 6 months after discharge.

c)    [The youth] can seek support from NAMS Counselor on his [addiction] issues if he needs support in the future …

d)    [The youth] can apply for [the Home’s] Scholarship award in 2024. The [Home’s] Scholarship is awarded to former residents who plan to further their studies in post-secondary education. The [Home’s] scholarship is worth up to $2500 per annum and it will be disbursed monthly to the former resident. The money received can be used for their school needs including food, transport, and other necessities.

e)    [The mother of the youth] will continue to work closely with FSC Social Worker and IMH.

11     Ultimately, the newfound caregiving ability of the mother and maturity of the youth allayed the concerns that had necessitated his committal to the Home. The skills that the youth had acquired in the Home and from his vocational course equipped him to support himself and his family. The discharge plan arranged by the Home and embraced by the youth put him in good stead him to live independently as a productive member of society. It was thus in the best interests of the youth to discharge the care and protection order that had committed him to the Home and return him to the care of his mother. On the advice of Mr Josephus Tan and Mr Syahrin Mohd Salleh, the advisers whom with me comprised the Youth Court in these proceedings pursuant to s 38 of the CYPA, I so ordered.

12     Much of the work in the child protection ecosystem is unsung. This case testifies to the good that it does. Mired in neglect and delinquency the youth had been. Working together, the MSF, the Child Protective Service, the NAMS, and the Home rescued him.

[note: 1]Progress Report 9/2/24 at paras 7.4.2 and 7.4.3

[note: 2]Progress Report 9/2/24 at para 10.1(d)

"},{"tags":["Family law – Maintenance – Variation of Maintenance Order – Whether remarriage terminates periodic maintenance order for a fixed period","Family law – Consent Orders – Whether maintenance order is a periodic order or for a lump sum amount payable by instalments"],"date":"2024-04-16","court":"Family Court","case-number":"Divorce Suit No. 4124 of 2019, (Summons No. 3215 of 2023)","title":"WWC v WWD","citation":"[2024] SGFC 17","url":"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%2F31395-SSP.xml","counsel":["Ms Chang Man Phing and Ms Heidi Ngo (WongPartnership LLP) for the Plaintiff","Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant."],"timestamp":"2024-04-25T16:00:00Z[GMT]","coram":"Kevin Ho","html":"WWC v WWD

WWC v WWD
[2024] SGFC 17

Case Number:Divorce Suit No. 4124 of 2019, (Summons No. 3215 of 2023)
Decision Date:16 April 2024
Tribunal/Court:Family Court
Coram: Kevin Ho
Counsel Name(s): Ms Chang Man Phing and Ms Heidi Ngo (WongPartnership LLP) for the Plaintiff; Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant.
Parties: WWC — WWD

Family law – Maintenance – Variation of Maintenance Order – Whether remarriage terminates periodic maintenance order for a fixed period

Family law – Consent Orders – Whether maintenance order is a periodic order or for a lump sum amount payable by instalments

16 April 2024

District Judge Kevin Ho:

Introduction

1       In August 2019, the Plaintiff and the Defendant reached what appeared to be an amicable decision to end their almost three-decade long marriage.

2       The Plaintiff applied for divorce in Singapore as he had been working here since 1999. At the time of the divorce application, the parties were already in their early 50s.[note: 1] The divorce application itself was filed as a simplified divorce application on the ground that the parties have been separated for 3 years and the Defendant consented to the divorce.

3       An Interim Judgment for divorce (“IJ”) was eventually granted on 11 September 2019 and the orders relating to the ancillary matters of divorce contained in the IJ were recorded “by consent”.[note: 2] These consent orders were based on the terms of a draft IJ which parties had carefully negotiated; multiple drafts of the proposed IJ were exchanged between the couple[note: 3] before the final version was duly executed by the Plaintiff and the Defendant,[note: 4] and thereafter submitted to the court.

4       Following the finalisation of the divorce, the Defendant continued to reside in the United States of America, where she had been since 2015 and where she continues to reside today.[note: 5] The Plaintiff, on his part, complied with the terms of the IJ and paid maintenance to the Defendant. He also funded her health insurance premiums.[note: 6]

5       Unfortunately, the terms of the parties’ divorce settlement are now being litigated before this Court, 5 years after their divorce.

6       Specifically, the Plaintiff filed FC/SUM 3215/2023 (“SUM 3215”) requesting that the Court rescind (or vary) paragraph 3(d) of the IJ.[note: 7] This paragraph sets out the Plaintiff’s maintenance obligations to the Defendant, the specific wording of which is as follows:

d.    The Plaintiff shall pay to the Defendant a sum of US$10,000 per month being maintenance for the Defendant. The payments shall be made with effect from 1 August 2019 and thereafter on the 1st day of each subsequent month for fifteen (15) years until 1 August 2034.

The Plaintiff shall provide funding for the Defendant’s international health insurance premiums from 1 August 2019 for fifteen (15) years until 1 August 2034.

After 1 August 2034, the Plaintiff is at liberty to extend maintenance to the Defendant at his sole discretion.

(collectively, the “Maintenance Order”)

7       The Plaintiff’s reason for rescinding the Maintenance Order is that the Defendant has since remarried. He says he was made aware of the Defendant’s new marital status after he was formally introduced to the Defendant’s new spouse at their adult son’s (ie. the Plaintiff and the Defendant’s child) wedding in August 2022.[note: 8] The evidence, in my view, suggests that he found out earlier.

8       Be that as it may, the Plaintiff (who has himself remarried) believes that given the Defendant’s remarriage, he should no longer need to pay her maintenance,[note: 9] or that his maintenance obligations should be reduced.[note: 10]

9       The questions before this Court – as put forward by the Plaintiff – appear, at first glance, straightforward:

(a)     Does the Defendant’s remarriage terminate his obligation to pay her maintenance?

(b)     Alternatively, can the Plaintiff rely on the Defendant’s remarriage and her present circumstances to vary (or reduce) his payment obligations ?

10     The answer to these seemingly straightforward questions, however, require some discussion given the legal arguments raised, and positions taken, by both parties.

Effect of Remarriage: Section 117, Women’s Charter 1961

11     The answer to the first question as regards the legal effect of the Defendant’s remarriage lies in the application of s 117 of the Women’s Charter 1961 (“WC”).[note: 11] This represents the main plank of Plaintiff’s case.

12     Section 117 provides as follows:

Duration of orders for maintenance

117.    Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —

(a)    if the maintenance was unsecured —

(i)    on the death of either spouse or former spouse;

(ii)   in the case of maintenance payable to a former wife — upon her remarriage; or

(iii)   in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or

(b)    if the maintenance was secured —

(i)    in the case of maintenance payable to a wife — on her death;

(ii)   in the case of maintenance payable to a former wife — on her death or upon her remarriage;

(iii)   in the case of maintenance payable to an incapacitated husband — on his death; or

(iv)   in the case of maintenance payable to an incapacitated former husband — on his death or upon his remarriage

13     Of particular relevance in the present case is s 117(a)(ii) which states that maintenance payable to a former wife expires “upon her remarriage”.

14     On a plain reading of this statutory provision, the Maintenance Order in the present case would have expired when the Defendant married her current husband on 31 January 2020.[note: 12] This would have occurred automatically as the extinguishment of the Plaintiff’s maintenance obligation was by operation of statutory law. There is no need for the Plaintiff to file a formal application to rescind the Maintenance Order.

15     This approach coheres with the statutory framework set out in ss 117 and 118 of the WC.

16     Section 117 provides that a maintenance order expires upon the occurrence of the various statutory preconditions (eg. death or remarriage), “[e]xcept where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded…” (“Exception Preamble”). This dovetails with s 118 which confers upon the court the power to vary or rescind any “subsisting order” for maintenance.

17     An application for rescission pursuant to s 118 should be made before the occurrence of the preconditions set out in s 117. This is because once a maintenance order has expired by operation of s 117, there would no longer be a “subsisting order” in respect of which the court can vary or rescind.

18     Given that a plain reading of s 117 would mean that the Plaintiff is no longer obliged to pay the Defendant any maintenance from the time of the latter’s remarriage, counsel for the Defendant sought to persuade the Court to adopt a slightly different reading of the statute.

19     In the course of oral arguments, the Defendant’s counsel suggested that the phrase “where an order for maintenance is expressed to be for any shorter period” in the Exception Preamble should be read to mean that if a maintenance order provides for a specified period of time, then the maintenance order would continue to subsist for the entirety of the specified period regardless of the ex-wife’s remarriage.

20     According to counsel, such a reading can inferred from the decision of the High Court in BNS v BNT [2017] 4 SLR 213 (“BNS”). In BNS (which involved a first instance ancillary matters hearing), the High Court found that the wife in that case to be in a settled relationship with a new partner and in making a maintenance order, the High Court included a proviso that the said order would lapse upon remarriage should the wife remarry before the end of two years. In so doing, Valerie Thean JC (as her Honour then was) made the following observations (at [55] – [56]):

55    I deal with two further issues raised in the Husband’s submissions. The first issue is that the Wife is in a settled relationship and thus there should be no lump sum order. I agree. In addition, s 117 of the WC provides that maintenance generally expires upon remarriage:

Duration of orders for maintenance

117.   Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —

(a)    if the maintenance was unsecured —

(i)    on the death of either spouse or former spouse;

(ii)   in the case of maintenance payable to a former wife — upon her remarriage; or

(iii)   in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or

(b)    if the maintenance was secured —

…

56    To obviate any argument that the present order for maintenance for two years is an order “expressed to be of any shorter period” within the meaning of that provision, I add a caveat to my order that it will lapse upon the Wife’s remarriage should she remarry before the end of the two years.

21     As I understand it, counsel’s argument is that Thean JC must have decided to add the caveat to the maintenance order in BNS because had her Honour not done so, the two-year maintenance order would have superseded the operation of s 117 and continue to give the wife a right to maintenance even if she had remarried before the end of the two years.

22     The Plaintiff’s counsel disagreed with the inference which the Defendant’s counsel sought to draw from what had been ordered in BNS as this was not stated explicitly in the judgment. The Plaintiff’s counsel submitted that Thean JC was simply being clear when making her Honour’s order and this was apparent from the judgment where her Honour had explained that the proviso was added so as “to obviate any argument”.

23     Having considered the nature of the case in BNS and the context of High Court’s decision, I agree with the Plaintiff’s counsel that BNS does not stand for the proposition that absent a “caveat” (or “proviso”), a periodic maintenance order for a fixed term should be read as an order for a “shorter period” within the meaning of s 117.

24     It is apparent from a plain reading of the statutory provision that the Exception Preamble provides for only 2 distinct scenarios when a maintenance order would not be terminated by operation of s 117(a), ie.:

(a)     where the maintenance specifies a “shorter” period, ie. where the end date of the order occurs before the death or remarriage of the recipient spouse; and

(b)     where the maintenance has been rescinded by the court before the death or remarriage of the recipient spouse.

The reason underlying both scenarios is clear – in both situations, the obligation on the paying spouse would already have ended before the recipient spouse had died or remarried, and it would be unnecessary to provide for the expiry of the order in question.

25     In effect, the Defendant’s argument seeks to replace the phrase “shorter” in the Exception Preamble with the phrase “specified”, in that so long a maintenance order specifies that it would be in force for a certain period, the automatic expiry date set out in s 117(a) would no longer apply.

26     With respect, I am unable to agree with the Defendant’s reading of the provision as it goes against the express language used in s 117(a). The well-established principles of statutory interpretation (as explained by the Court of Appeal in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850) requires the court to have regard to the text of the statutory provision, its ordinary meaning, and the context of the statute.[note: 13]

27     I find that adopting the Defendant’s reading of s 117(a)(ii) would lead to anomalous results, considering the context of the provision. This is especially so when considered against the other scenarios contemplated in s 117(a).

28     For instance, adopting the Defendant’s interpretation for s 117(a)(ii) suggests that s 117(a)(i) should be interpreted in a similar fashion, ie. a maintenance order with a specified period would, under the Defendant’s approach, also continue to be in force despite a recipient ex-spouse’s death. That would surely be an absurd outcome – to whom is the maintenance payor expected to continue paying maintenance to, after the ex-spouse’s death? Can the deceased ex-spouse’s estate then make monthly maintenance claims for the entire period? Neither of these outcomes is supported by the statute.

29     Moreover, the Defendant’s reading effectively means that a person can exclude the operation of the statute by specifying a time-period (however long or short) to a maintenance order. In the absence of clear statutory language permitting the parties to do so, I decline to adopt such a reading.

30     For completeness, I should add that the Defendant’s reading does not accord with the legislative policy behind s 117(a)(ii) which simply recognises that a former wife’s right to maintenance should cease upon remarriage.

31     By way legislative history, the idea that remarriage automatically terminates a person’s obligation to pay maintenance to his former wife was not always part of the WC. It was added as part of the legislative amendments made to the WC in 1996.[note: 14] Before the relevant amendments were made, the only scenario which terminates a husband’s obligation to pay maintenance is upon the former’s wife’s death.[note: 15]

32     The insertion of the additional termination event for remarriage came as a result of the Report of the Select Committee on the Women’s Charter (Amendment Bill) (Bill No. 5/96) which was presented to Parliament on 15 August 1996. The Select Committee had supported the suggestion raised by one representor for the insertion of such a termination event; in his speech to move the Bill for its third reading, the then Minister for Community Development explained that such an addition provision was “logical and fair”.[note: 16] There was no suggestion that there should be any exception to this provision or that spouses can privately exclude its operation.

33     Accordingly, I find that s 117 would apply, in the present case, to any maintenance order which was in existence as at the time of the Defendant’s remarriage to her current spouse.

Interpretation of the Interim Judgment

34     Notwithstanding the applicability of s 117 (as discussed above), that is not necessarily the end of the matter as the Defendant has a second string to her bow.

35     Counsel for the Defendant argued that the Maintenance Order should be read (or interpreted) as an order for “lump sum” maintenance payable by the Plaintiff. Indeed, this was the gist of the Defendant’s case.

36     The Defendant submitted that if the Maintenance Order was to be read as a lump sum maintenance order (instead of an order for periodic maintenance), the Defendant’s remarriage would not have had any legal effect on the Plaintiff’s obligation to pay her the monthly sum of US$10,000 as all he had been doing (and must continue to do) is paying, by equal monthly instalments, a fixed maintenance sum of US$1,800,000 over a period of 15 years.[note: 17]

37     The Plaintiff strenuously challenges this argument on the basis that such a reading of the Maintenance Order was not supported by the evidence adduced by the parties. He also raised a related legal challenge that even if this Court finds that it should be understood as an order for lump sum maintenance should still be considered as a subsisting order which could be varied or rescinded by the court. I will address the latter argument later in this judgment.

38     In my view, the parties’ arguments raise the following two sub-issues:

(a)     How should a court interpret the Maintenance Order (which is part of the by-consent IJ entered into by the parties), including what principles and/or canons of interpretation the Court can rely on in the exercise of interpretation?

(b)     Applying those principles, whether the Maintenance Order, in the present case, should be interpreted as being an order for lump-sum maintenance?

39     I will address both sub-issues in turn.

40     As regards sub-issue (a) above, after hearing counsel’s oral arguments, I directed both counsel to provide further written submissions to provide their views (and the relevant research) as to the approach which should be taken by the Court. Both counsel duly filed their respective supplemental submissions, and I had considered these submissions in reaching my decision.

41     At the outset, I recognise that the Maintenance Order was clearly court orders and not merely an agreement between the parties. They were made by the Family Court as part of the parties’ divorce proceedings in 2019. The difference, however, is that the Maintenance Order was not made after contested proceedings; it was part of a by-consent IJ agreed between the parties through private negotiations without the direct involvement of the court. For ease of reference, I shall refer to such consent orders as “Matrimonial Consent Order(s)”.

42     In the case of court orders made after contested proceedings, the interpretation of such orders is often straightforward. In BRZ v BSA [2020] SGHCF 17 (“BRZ”), the High Court made the following observations (at [21]) in relation to the interpretation of court orders:

The law on interpretation of court orders

21    As much of the dispute turns on the proper interpretation of the AM Order, I begin by setting out the principles that apply to the interpretation of court orders. The starting point should be the language of the order. An interpretation would necessarily consider the natural and ordinary meaning of the words and the manner in which they are used. Regard must also be had to the whole of the order. As far as possible, each part of the court order should be read consistently with every other part and with the intention of the court which granted the order: Hoban Steven Maurice Dixon and another v Scanlon Graeme John and others [2007] 2 SLR(R) 770 at [41]. It is common sense that the court, in making an order, would not have wished to have different parts of the order produce different results. Beyond that, the interpretation of the court order should strive for consistency with the prevailing principles. As the High Court considered in Sujatha v Prahbakaran Nair [1988] 1 SLR(R) 631 (“Sujatha”) at [16]:

… [W]here an order of court is capable of being construed to have effect in accordance with or contrary to established principles of law or practice, the proper approach, in the absence of manifest intention, is not to attribute to the judge an intention or a desire to act contrary to such principles or practice but rather in conformity with them. …

[Emphasis added in underline]

43     I would add that the interpretation of orders made by a judge after contested proceedings would usually not pose a significant challenge to the parties given the availability of other means to understand and ascertain the judge’s intention when making the relevant order – for eg. notes of evidence and written grounds of decision may be available to the parties. Requests can also be made to the court for the clarification of its judgment.

44     In contrast, Matrimonial Consent Orders are different in that such orders are typically based on out-of-court agreements reached by the parties themselves without the court’s direct involvement in the preparing/drafting of such Orders. Parties generally have freedom to choose the terms/language used in the Matrimonial Consent Orders.

45     Nevertheless, the Plaintiff’s counsel submitted that the principles relating to the interpretation of commercial contracts should not be adopted in the present case, given the unique nature of orders made in family proceedings.[note: 18]

46     As stated above, I agree that the nature of a Matrimonial Consent Order is different from an agreement to settle legal proceedings in the civil and/or commercial context. A Matrimonial Consent Order is, for example, different from other type of court orders (such as Tomlin order[note: 19]) which record the litigants’ settlement agreements in civil proceedings. Unlike such orders, the legal effect of a Matrimonial Consent Order is derived from being an order of court,[note: 20] and not merely because of a commercial contract the parties had entered into.

47     However, recognising the legal nature of a Matrimonial Consent Order (which may affect the way in which its terms are enforced or varied) does not necessarily shed light on how to interpret (or read) its terms, especially where these terms were not the result of adjudication by the court.

48     In my view, the principles of contractual interpretation may be relevant when a court is tasked with interpreting specific clauses set out in a Matrimonial Consent Order which were principally prepared by the parties. This would be the case where the clauses were the product of extensive negotiations between the parties prior to the making of the Matrimonial Consent Order, or, in some cases, the terms of a Matrimonial Consent Order reflect an earlier written contract or document (such as a deed of separation) where the terms of the parties’ intended divorce were spelt out in detail.

49     As noted by the High Court in Seah Kim Seng v Yick Sui Ping [2015] 4 SLR 731 (“Seah Kim Seng”) at [29]:

…the fact that a consent order was recorded means that the intention of the respective parties may be relevant in a broad sense; such intention has to be considered in the light of the compromise required in reaching an agreement and expressed in the consent order. What matters ultimately is the common understanding between the parties. The court cannot ultimately substitute its own agreement in place of what the parties came to…

[Emphasis added in underline]

50     I recognise that in Seah Kim Seng, the High Court was considering an application to vary a consent order due to its alleged unworkability. Nevertheless, the High Court’s reference to the parties’ intentions suggests that in understanding a Matrimonial Consent Order, the surrounding circumstances and the parties’ understanding at the time of its making remain relevant.[note: 21]

51     To be clear, my observations above pertain only to the use of relevant legal principles to aid in the construction and/or interpretation of a Matrimonial Consent Order drafted by the parties. The purpose of this exercise is to ascertain what the parties had understood or intended when they agreed to include a term in the Matrimonial Consent Order, especially where some of its terms are ambiguous.

52     The interpretation of a Matrimonial Consent Order is distinct from its nature as a court order, and my observations here should not be taken as implying that other principles of contract law should be automatically “imported” into the matrimonial context. One unique nature of matrimonial proceedings is that the WC statutorily allows the court to vary or rescind maintenance orders (including those reached through parties’ agreement),[note: 22] and the principles applicable to such variation applications are well-established.

53     Notwithstanding the discussion above, on the facts of the present case, I find that the outcome of my decision would not have been significantly different regardless of whether I had used principles relating to contractual interpretation, or if I had interpreted the IJ as if it was a court order (made after adjudication). My reasons are as follow:

(a)     To begin with, the exercise of contractual interpretation and the interpretation of a Court Order both place primacy on the text of the document in question.

(b)     As the High Court noted in BRZ, the starting point for interpreting a court order should be the “language of the order”.[note: 23] Similarly, in the interpretation of contracts, the Court of Appeal had, on various occasions, emphasised the importance of considering the text of the document in question.[note: 24]

(c)     In the present case, the text of the Maintenance Order is plain in that it states unequivocally that “[t]he Plaintiff shall pay the Defendant a sum of US$10,000 per month being maintenance for the Defendant”, and that is to be paid on the “1st day of each subsequent month for fifteen years until 1 August 2023”.

(d)     The reference to a sum of US$10,000 payable “per month” and payable on the “1st day” of each month puts in beyond peradventure that it was a periodic maintenance order.

(e)     The same interpretative exercise similarly applies to the part of the Maintenance Order relating to the Plaintiff’s payment of the Defendant’s health insurance premiums (“Insurance Premium Clause”).

(f)     Looking at the Maintenance Order as a whole, reading the same in its plain language and considering how parties had included the Insurance Premium Clause in the same clause as that relating to the payment of monthly maintenance, I find that the Insurance Premium Clause was also part of the Plaintiff’s monthly maintenance payment obligations.

(g)     Indeed, the parties had situated this Clause immediately before the proviso giving the Plaintiff the discretion to “extend maintenance” – this reinforces my finding that the parties intended for the payment of insurance premiums to be a facet of the Plaintiff’s maintenance obligations.

54     In my view, against the backdrop of the plain language used in the Maintenance Order, to accept the Defendant’s interpretation of the same would be to ignore (or even contradict) the actual text of the Order. That would not be permissible regardless of which principles of interpretation are applied.

55     The Defendant’s suggested understanding of the Maintenance Order requires the Court to read in additional words – for eg. “lump sum” and “instalments” – so that her reading of the Order as an order for lump sum maintenance would make sense. It would also require the Court to ignore words used – ie. “monthly payments” – and replace them with a fixed sum of US$1.8million; what was clearly described as monthly maintenance payments must be also read as monthly “instalment” repayments of a fixed amount.

56     Moreover, the fact that the last sentence of the Maintenance Order expressly gives the Plaintiff a “discretion” to “extend maintenance” roundly contradicts the Defendant’s claim; one cannot extend a lump sum maintenance order for a fixed sum of US$1.8 million.

57     I thus do not find the Defendant’s proposed interpretation of the Maintenance Order to be one which the plain words and expressions used by the parties can reasonably bear. I therefore cannot accept her interpretation.

58     It follows from the above discussion that the Maintenance Order should be understood as being a periodic maintenance order where the Plaintiff was obliged to pay a monthly sum of US$10,000 to the Defendant monthly.

59     Accordingly, being a periodic monthly order, the Maintenance Order expired upon the Defendant’s remarriage in 2020 by virtue of s 117(a)(ii) of the WC; it no longer has any effect by the time the Plaintiff filed the present application in October 2023.

60     Before I conclude my discussion as to how the Maintenance Order (or the IJ) ought to be interpreted, I will address the Defendant’s submission that she was unrepresented at the time of divorce proceedings in 2019,[note: 25] and that she had trusted the Plaintiff.[note: 26] For completeness, I note that the Defendant has not alleged, in her affidavits or in her counsel’s submissions, that there had been fraud, misrepresentation, or mistake perpetuated by the Plaintiff which led to the execution of the draft IJ or in recording the Maintenance Order as a by-consent order.

61     In my view, little weight can be placed on the Defendant’s reference to her lack of legal representation or knowledge in 2019. The main difficulty I had with the Defendant’s argument in this regard was that the draft IJ she had executed contained a clear endorsement stating that the Defendant “acknowledge[s] that [she has] considered the terms of the agreement and have also been informed of my right to seek independent legal advice”.[note: 27] This endorsement was expressly affixed next to where she had placed her signature (and assent) to the terms of the draft IJ. The Defendant executed the document before, and was witnessed by, a Notary Public.

62     In my view, the Defendant, having chosen to sign and agree to the terms as stated in the draft IJ after having been informed of her right to seek legal advice, must be taken to have accepted the terms of the Maintenance Order and how the relevant statutory provisions may operate on the same.

Other observations

63     Although my decision on the applicability of s 117 above fully disposes the present application filed by the Plaintiff, both parties and their counsel had provided their submissions on two other issues which I will briefly address.

64     First, counsel for the Plaintiff submitted that even if this Court had found that the Maintenance Order to be an order for a lump sum maintenance (paid over a 15-year period), s 118 would still have been applicable because the Maintenance Order should be considered as still “subsisting” when this present application was filed.[note: 28] This stands in contrast to the Defendant’s case which appears to assume that an order for lump sum maintenance cannot be varied or rescinded by the Court.

65     As I have found that the Maintenance Order was not for the payment of maintenance in a lump sum, it is strictly not necessary for me to address the question of the court’s power to vary an order for lump sum maintenance.

66     Nevertheless, having considered the parties’ submissions, I am of the view that the court can (in the sense that it has the power to) vary or rescind a lump sum maintenance order which has not been fully executed. Whether the court does so depend on the facts of the case.

67     It is plain from a reading of s 118 that the court can vary or rescind an order for maintenance so long as it is a “subsisting” order. An order (regardless of whether it is expressed to be for a specified period or for the payment of a lump sum over a series of instalments) would be “subsisting” – ie. that it remains in force or effect – if the payment period has not yet ended at the time of the variation or rescission application.

68     This is also the view taken by Professor Leong Wai Kum in Elements of Family Law in Singapore (LexisNexis, 3rd Ed., 2018), where the learned author opined (at [18.097]) that:

…[a]lthough a lump sum order of maintenance is less amenable to being varied or rescinded, it is not impossible for a court to consider doing either when an extremely good reason is proffered, even, after the lump sum order has been fully executed.

69     Indeed, Professor Leong’s approach goes further as she suggests that the court can vary even a fully executed lump sum maintenance order. As this was not an issue raised in the present case (since there is no dispute that the Maintenance Order in the present case would not have been fully executed even if it was for the payment lump sum maintenance), I will leave this issue to be addressed at the appropriate time and forum.

70     The second issue relates to Plaintiff’s alternative case which I have alluded to at [9(b)] above, ie. whether this Court should nevertheless vary or rescind the Maintenance Order, assuming s 117 was not applicable to the present case.

71     In the event that I am wrong as to the applicability of s 117 (ie. that the Defendant’s remarriage did not operate to terminate the Maintenance Order), I would have accepted the Defendant’s argument and would not have exercised my discretion to either vary or rescind the said orders.

72     Having reviewed the evidence provided by both parties, I am of the view that there has been no material change of circumstances which warrants the variation of the Maintenance Order sought by the Plaintiff.

73     In reaching this view, I take into account the following matters:

(a)     I find that the parties’ negotiations and the surrounding circumstances leading up to the making of the IJ to support the Defendant’s case that the Plaintiff had intended to make provision for the Defendant – his spouse for almost three decades. This is reflected in the discussions between both parties in the months before August 2019 (when the divorce was finalised with the making of the IJ).[note: 29]

(b)     In my view, the Plaintiff was clear in that he had agreed to pay the Defendant maintenance for a period of 15 years back in 2019. If s 117 had not terminated the Maintenance Order by operation of law, there would have been no justifiable basis for the Plaintiff to apply to vary the Maintenance Order.

(c)     Indeed, I do not accept the Plaintiff’s submission that he only found out about the Defendant’s remarriage at their son’s wedding. I agree with the Defendant that on 16 March 2020, the Plaintiff sent the Defendant a message stating unequivocally that:

“…I was naïve when you asked me to change from a lifetime-unless married to an [sic] 15 years-unconditional USD 10k monthly allowance…not knowing you already started an affair, probably prior [sic] our decision to get separated in Dec 2018 and planned to live with [the Defendant’s current spouse] (by the way, I heard the news, not from you of course…congratulations on your marriage, and all the very best!...even if you portrayed to me that you would just get married to get the US green card)…”

[Emphasis added in underline]

That the Plaintiff knew of the Defendant’s remarriage was also supported by his text message in 2022 which references the Defendant having “remarried right after” their divorce.[note: 30]

(d)     Despite being aware of the remarriage, the Plaintiff continued paying the Defendant the monthly amount of US$10,000. This shows that the Plaintiff had himself thought that the Defendant’s remarriage alone would not have justified a reduction in the maintenance amount payable.

(e)     Had s 117 not applied, I would have placed weight on the parties’ negotiated agreement especially given that issues such as when the Defendant’s ability to support herself (including through earning an income from employment, receiving inheritance, etc.) were specifically considered and the parties had agreed to the 15-year maintenance period.[note: 31] Such an agreement should generally be honoured.[note: 32] In the context of consent orders relating to the division of matrimonial assets, Choo J in WRP v WRQ [2024] SGHCF 12 recently observed as follows:

5    […] Although the idea of sanctity of contract is not applied directly in matrimonial proceedings as if they were commercial enterprises, weight is given to the negotiated settlement of the parties. Much give and take are involved in reaching such settlements, and the court should keep this in mind lest it gives more to the taker by taking more from the giver, contrary to the parties’ intentions […].[note: 33]

I find these observations to also be applicable in the present case in light of the evidence submitted by the parties.

(f)     To avoid doubt, I also find that the Defendant’s current income (earned through her work as a real estate agent in the United States) does not represents a material change to her circumstances justifying a reduction of the maintenance amount of US$10,000 which the Plaintiff had agreed to pay. I accept the Defendant’s evidence that she is earning a relatively meagre amount (if at all).[note: 34]

(g)     As regards the Plaintiff’s earning capacity and personal expenses, I find that he remains able to support the Defendant if the Maintenance Order remains in force. His own remarriage does not amount to a sufficient change in circumstances to justify a downward variation (or complete recission) of the Maintenance Order as he would have entered his new marriage fully aware that he was obliged to maintain the Defendant for the 15 years he had promised.[note: 35]

74     Accordingly, had the Defendant not remarried, I would not have exercised the power given by s 118 to vary or reduce the amount payable under the Maintenance Order.

Remaining Procedural Issue

75     I turn now to a final procedure-related issue which arises given the manner in which the Plaintiff had chosen to frame the prayers set out in SUM 3215.

76     In each of his prayers, the Plaintiff had asked for various parts of paragraph 3(d) of the IJ to be “rescinded or varied forthwith”. As I had found that s 117 operates automatically upon the Defendant’s remarriage in 2020 to end all of the Plaintiff’s maintenance obligations, there would be no subsisting order in respect of which I am empowered by the WC to rescind or vary.

77     I therefore make no orders on prayers 1 to 3 of SUM 3215 on the basis that the orders in paragraph 3(d) of the IJ have expired upon the Defendant’s remarriage.

Conclusion

78     The present case was an unfortunate one where an amicable divorce between two parties (who had shared an almost three-decade long marriage) ended up in litigation years later.

79     While the Plaintiff had promised to take care of the Defendant by giving her financial provision for a period of time, this promise came in the form of a periodic maintenance order which both parties agreed to. The nature of such maintenance orders is that they would terminate upon the ex-wife’s remarriage in accordance with the provisions of the WC. The Defendant’s decision to remarry shortly after the divorce thus resulted in the expiry of the said maintenance order.

80     Despite this, both parties continued to follow the order and, as a result, the Defendant has received almost half a million US dollars’ worth of maintenance payments from the Plaintiff since their divorce.

81     I note that the Plaintiff’s counsel’s indication during the hearing that the Plaintiff is not seeking the return of any overpayment of maintenance. I find this gesture to be reasonable and I hope that with this decision, both parties can move on with their lives now that they have both remarried.

82     I will hear the parties on the issue of costs.

[note: 1]Plaintiff’s Written Submissions dd 16.02.24 (“PWS”) at [4] – [7]

[note: 2]The IJ is exhibited at pp. 36 and 37 of PA1

[note: 3]Defendant’s Affidavit d 05.01.24 (“DA1”) at pp. 28 – 56

[note: 4]Plaintiff’s Affidavit dd 12.10.23 (“PA1”) at pp. 31 – 35

[note: 5]Defendant’s Written Submissions dd 19.02.24 (“DWS”) at [11]

[note: 6]PA1 at [19]; DA1 at [34]

[note: 7]PA1 at p. 37

[note: 8]PA1 at [22]

[note: 9]PA1 at [40]

[note: 10]PA1 at [46] – [47]

[note: 11]All references to statutory provisions in this judgment are references to the Women’s Charter 1961

[note: 12]DA1 at [6]

[note: 13]Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [37], [38] and [50]

[note: 14]Women’s Charter (Cap. 353, 1997 Rev. Ed.)

[note: 15]See the predecessor to s 117, ie. s 111 of the Women’s Charter (Cap. 353, 1985 Rev. Ed.)

[note: 16]Singapore Parliamentary Debates, Official Report (27 August 1996) vol. 66 at col. 525 (Abdullah Tarmugi, Minister for Community Development)

[note: 17]DWS at [9]

[note: 18]Plaintiff’s Supplemental Submissions dd 12.03.24 at [16]

[note: 19]See eg., HQH Capital Ltd v Chen Liping [2023] 4 SLR 885 (at [24] – [32]) where the High Court (General Division) discussed the nature and effect of a Tomlin Order

[note: 20]See AOO v AON [2011] 4 SLR 1169 at [14]

[note: 21]See also Defendant’s Supplemental Submissions dd 12.03.24 at [17]

[note: 22]AXM v AXO at [22] and [23]; see also ss 118 and 127 of the WC

[note: 23]See BRZ at [21]; see also VZL v VZM [2022] SGFC 34 at [38] for a detailed summary of the applicable approach to the interpretation of court orders

[note: 24]See for eg., Yap Son On v Ding Pei Zhen [2017] 1 SLR 219 at [30]; Lucky Realty Co Pte Ltd v HSBC Trustees (Singapore) Ltd [2016] 1 SLR 1069 at [2]

[note: 25]DWS at [3]

[note: 26]DWS at [24]

[note: 27]DA1 at p. 57

[note: 28]PWS at [64]

[note: 29]DA1 at pp. 28 – 33

[note: 30]DA1 at p. 67

[note: 31]DA1 at [31] – [33]

[note: 32]See eg., VRX v VRY [2021[ SGFC 62 at [13]

[note: 33]WRP v WRQ [2024] SGHCF 12 at [5]

[note: 34]DA1 at [51] – [53]

[note: 35]George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197 at [39] – [40]

"},{"tags":["Family Law – Maintenance for Ex-Wife and child"],"date":"2024-04-19","court":"Family Court","case-number":"FC/D 399 of 2010 in FC/SUM 2054 of 2023","title":"WTP v WTQ","citation":"[2024] SGFC 19","url":"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%2F31392-SSP.xml","counsel":["Mr Jeremy Chong with Ms Nurul Nabilah of M/s JCP Law LLC for the Plaintiff","Mr Lee Yun En with paralegal Ms Cheyanne Doria of M/s Regal Law LLC for the Defendant."],"timestamp":"2024-04-24T16:00:00Z[GMT]","coram":"Christine Lee","html":"WTP v WTQ

WTP v WTQ
[2024] SGFC 19

Case Number:FC/D 399 of 2010 in FC/SUM 2054 of 2023
Decision Date:19 April 2024
Tribunal/Court:Family Court
Coram: Christine Lee
Counsel Name(s): Mr Jeremy Chong with Ms Nurul Nabilah of M/s JCP Law LLC for the Plaintiff; Mr Lee Yun En with paralegal Ms Cheyanne Doria of M/s Regal Law LLC for the Defendant.
Parties: WTP — WTQ

Family Law – Maintenance for Ex-Wife and child

19 April 2024

District Judge Christine Lee:

Introduction

1       This case involves an appeal by the Plaintiff Father regarding the whole of my decision given on 5 January 2024 on his application in FC/SUM 2054 of 2023 for variation of the maintenance payable by him for the Defendant Mother and the sole child of the previous marriage.

2       The Plaintiff Father filed his appeal in HCF/DCA 8 of 2024 on 19 January 2024.

Facts

The Parties

3       The Plaintiff Father (“the Plaintiff”) and the Defendant Mother (“the Defendant”) married on 3 May 1995, in the People's Government of Xiangcheng District, Zhangzhou City, People's Republic of China. Both the Plaintiff and Defendant are Singapore citizens. There is one child to the previous marriage namely, [Child 1] (m) DOB 17 July 2000 now aged 23 years (“the said child”). The marriage lasted about 15 years before the Plaintiff filed Writ of Divorce on 26 January 2010.

4       Interim Judgement (“IJ”) was granted on 14 October 2010 on an uncontested basis on the Statement of Claim and the marriage was dissolved by reason that the Parties to the marriage had lived apart for a continuous period of at least 4 years immediately preceding the filing of the Writ. The IJ also contained the terms of a Consent Order regarding all the Ancillary Matters in the Statement of Claim. Accordingly, the Certificate of Final Judgement was issued on 17 January 2011.

5       On 28 June 2023, the Plaintiff filed FC/SUM 2054/2023 for 3 prayers but Prayer 1 was in 2 parts as follows:

Prayer 1: That paragraphs 3(6) and 3(7) of the Interim Judgment dated 14 October 2010 (IJ4842/2010/V) be varied as follows:

"3(6) That there shall be no maintenance for the Defendant”.

3(7) That the child namely [Child 1] (M) shall be solely maintained by the Defendant.

6       Prayer 2 of FC/SUM 2054/2023 was on the issue of Costs:

Prayer 2: Parties to bear their own costs of this application.

7       Prayer 3 of FC/SUM 2054/2023 related to other relief orders:

Prayer 3: Such other orders as the Honourable Court deems fit.

The Parties cases

8       Both Parties were represented by Counsel at the hearing, which was held on one day only on 5 January 2024, whereupon I delivered my decision after hearing the submissions of both Counsel.

9       As I was of the view that the 2nd part of Prayer 1 was redundant, I informed the Plaintiff's Counsel that I was striking out this prayer because the said child was over 21 years, and the case law was clear that the said child had to make his own application for maintenance if he so wished. I was also of the view that since the Court Order in Clause 3(7) of the IJ did not provide for maintenance for the said child beyond 21 years, that the Plaintiff was no longer liable to pay any maintenance for the said child. The Plaintiff's Counsel agreed[note: 1]. As such, I held that there was no need to hear the Defendant’s Counsel on this prayer.

10     The Plaintiff's Counsel submitted that the Plaintiff’s case for the 1st part of Prayer 1 was that this application was made under sections 118 and 119 of the Women’s Charter (“WC”) on the grounds that there had been a material change in the circumstances of the Plaintiff such that he was no longer able to provide maintenance for the Defendant Ex-Wife.

11     It was submitted that on the timelines, the divorce was made more than 13 years ago. At the time the IJ By Consent Order was made in 2010, the Plaintiff was working as an architect earning over S$5,000 per month[note: 2]. After the divorce, he started a company [C] in China in the Xiamen province and at the beginning, the income earned was similar to what he was earning at the time of the divorce and actually increased between 2015 to 2016 to about S$8,000 per month[note: 3]. During this time, he kept up with his maintenance obligations and in fact, gave more as he could afford it.

12     It was also submitted that the company started to struggle after 2016 and as of January 2018, the Plaintiff started to find difficulty in making the maintenance payments[note: 4]. The Plaintiff’s Counsel referred to the Defendant’s calculation of arrears at page 25 of the Plaintiff’s Supporting Affidavit which showed the default and lump sum payments to make this up. However, the Plaintiff managed to pay up to over $140,000 from 2018 to-date and the last few payments were made by his current wife to keep him out of prison[note: 5].

13     The Plaintiff’s Counsel submitted that the material change was that for the past 2 years, the company had been in negative territory and making losses and the Plaintiff had been forced to take loans from family and friends. It was submitted that effectively, the Plaintiff had no more income and was just incurring more and more debt[note: 6].

14     The Plaintiff’s Counsel agreed that maintenance for the Defendant ex-Wife extended until her passing or re-marriage. However, it was submitted that the Plaintiff Ex-Husband was not supposed to be the Defendant Ex-Wife’s “general insurer of sorts” as stated in the case of ATE v ATD [2016] SGCA 2 which was an order for ancillaries at the time of divorce. The Plaintiff’s Counsel submitted that paragraphs 30 and 31 of the ATE case, as applied to the present case, was that when the division of property was a fair division at the time of the divorce and the Wife had always been working, now that the Husband was no longer able to maintain the Wife, this taken in totality, was that the Wife was not disadvantaged given that she had already gotten a lot of the wealth from the marriage[note: 7].

15     The Plaintiff’s Counsel also referred to the case of AYM v AYL [2014] SGCA 46 at paragraph 23 which held that: “The cases have established that a material adverse change in the financial circumstances of the Husband, especially where the Wife is reasonably provided for, is a good basis for a downward variation of a maintenance order[note: 8]”.

16     The Plaintiff’s Counsel submitted that in the present case, the Plaintiff was in debt and dependent on his new wife to keep him out of jail. On the other hand, the Defendant had done well for herself and she was working for most of her life. It was submitted that there was nothing to show that she could not find another job as her resignation only happened very recently and it was many years after the divorce[note: 9]. It was submitted that this warranted a rescission of the maintenance payable to the Defendant ex-Wife.

17     The Defendant’s Counsel responded that on the material change of circumstances based on the ATE case, that decision was on the ancillary matters for the Wife’s maintenance. Therefore, it was not a case authority for variation. The Defendant’s Counsel referred to the case of ATS v ATT [2016] SGHC 196 before the Honourable Justice Belinda Ang from paragraphs 10 to 14. Reading from paragraph 10 of the case, Defendant’s Counsel submitted that “as a starting point, the material changes in question must relate to the circumstances prevailing at the time the 2011 maintenance order was granted”[note: 10].

18     The Defendant’s Counsel also referred to paragraph 11 of the ATS case and submitted that “a variation application that seeks to rely on circumstances prior to the order for maintenance should be rejected. It was submitted that, put simply, the Court must be vigilant to sieve out unmeritorious applications and to ensure finality in the judicial process. No applicant should be allowed to have another bite at the cherry merely because he or she is displeased with the outcome of Court proceedings[note: 11]”.

19     The Defendant’s Counsel submitted that the ATS case also referred to the case of Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83 wherein the District Judge in that case had cautioned against back-door appeals that are disguised as variation applications and emphasised that if the change is alleged to be material, “the evidence of change must have arisen after the maintenance order”[note: 12].

20     The Defendant’s Counsel further referred to paragraph 12 of the ATS case and quoted that “a variation application under s 72 and/or s 118 is not a de novo application; the variation Court decides from the vantage point that presumes the final maintenance order to be appropriate at the time it was made and examines whether the evidence demonstrates a change in circumstances has occurred since then to justify a variation or rescission of the final maintenance order made at the ancillary hearing[note: 13]”.

21     The Defendant’s Counsel also highlighted the three factors set out in paragraph 13 of the ATS case and quoted from the case that[note: 14]: “Generally, when the “change in circumstances” condition in s 72 and/or s 118 is invoked, the variation Court strictly decides from the time-point post-ancillary order. The Court should thus examine whether:

(a)     such change being alleged is a change from circumstances prevailing during the ancillary matters hearing.

(b)     such change being alleged arose after the ancillary matters hearing; and

(c)     such change being alleged is sufficient enough to satisfy the court that a variation or rescission of maintenance is necessitated (in light of the factors that determined the final maintenance order made at the ancillary hearing.”

22     Finally, the Defendant’s Counsel also quoted paragraph 14 of the ATS case that: “To summarise, what can qualify as material change within the meaning of s 118 would thus depend on the facts in light of the factors that informed the final maintenance order for the former wife[note: 15].

23     The Defendant’s Counsel informed that the three factors set out in paragraph 13 of the ATS case were endorsed by the Court of Appeal (“CA”) in paragraph 10 of the case of BZD v BZE [2020] SGCA 1. It was submitted that therefore, the starting point for this case must come from the vantage point presuming the appropriateness of the maintenance order made on 14 October 2010[note: 16].

24     In response to my query that, if what the Plaintiff’s Counsel said was true in that the Plaintiff was no longer earning what he was earning at the time the maintenance order was made, whether these same factors were raised before the District Judge at the hearing for MSS xx3/2023 wherein the Plaintiff had sought to vary downwards the agreed maintenance arrears and MSS xx7/2023 wherein the Defendant sought to enforce the maintenance arrears, the Defendant’s Counsel informed that they were[note: 17].

25     However, the Plaintiff’s Counsel disputed this and submitted that they were not having a 2nd bite of the cherry. It was submitted that the earlier submissions in MSS xx3/2023 and MSS xx7/2023 (“the two MSS applications”) were for the reduction of the arrears that was payable. Whereas, in the current case, the application was in relation to the amount payable in the Maintenance Order. As there was another agreement entered into by the Parties, the District Judge declined to adjust the arrears of maintenance. Therefore, the two MSS applications were for a different set of circumstances[note: 18].

26     The Defendant’s Counsel responded that it was not accurate to say that the basis of the two MSS applications was different[note: 19]. It was submitted that the District Judge did not just deal with the fact that there was a pre-existing agreement between the Parties[note: 20]. The Defendant’s Counsel referred to the Grounds of Decision (“GD”) dated 14th July 2023 for the two MSS applications [at paragraphs 23 to 33]. In summary, the Defendant’s Counsel referred to the parts of the GD whereby the District Judge noted that the Plaintiff had not demonstrated that there had been a change in circumstances warranting a downward variation of the arrears because according to his own evidence, his business had suffered greatly since 2016, which predated the enforcement orders. [note: 21]

27     The Defendant’s Counsel submitted that at paragraph 31 of the GD, the District Judge had also taken into account the fact that the Plaintiff had started a new family with his current wife and held that when the Plaintiff voluntarily took on additional financial obligations for his new family, the decision to take on any additional financial obligations must have regard to the existing ones. The District Judge found that the Plaintiff could afford to do both[note: 22]. The Defendant’s Counsel pointed out that in the middle of the Plaintiff’s alleged business downturn in 2018, the Plaintiff had moved his current new family from China to Singapore but gave no reasons why[note: 23].

28     The Defendant’s Counsel also referred to the case of George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197, before the Honourable Judicial Commissioner Ramesh at paragraphs 39 and 40 and submitted on the factors that must be taken into account regarding the Plaintiff’s obligations to his new family, which have to be balanced against the pre-existing obligations to the family from the previous marriage[note: 24].

29     The Defendant’s Counsel summarised the three factors as: (i) the reasonableness of the commitments that the Plaintiff had assumed, whether as regards his new family or otherwise, bearing in mind the pre-existing obligations he owed to the family from the previous marriage. (ii) Whether the Plaintiff and his new family had explored and exhausted all reasonable solutions that would enable him to perform his obligations on both sides of the fence; and (iii) The financial circumstances and needs of the family from the previous marriage.[note: 25]

30     The Defendant’s Counsel submitted that in the present case, the Plaintiff not only remarried, but went on to have 2 children and relocated them from China to Singapore. It was also noted that the Plaintiff now no longer had to pay any maintenance for the said child of his previous marriage, and that instead of paying $2,000 per month, he was now only liable to pay $1,000 per month for maintenance. The Defendant’s Counsel also submitted that since the said child had not made any application for maintenance, essentially the Plaintiff’s obligation to his previous family had halved[note: 26].

31     The Defendant’s Counsel submitted that the Defendant herself had suffered an adverse and material change of her circumstances. The Defendant’s Counsel referred to Tab 1 of the Defendant’s Reply Affidavit at page 66 for a medical report dated 9 September 2023 stating that her medical treatment was for the next 5 to 10 years and made it difficult for her to work. It was submitted that the Defendant’s official last day of service was 5 September 2023 and that she was also suffering from other medical issues and paying for her Mother’s (suffering from cancer) medical bills as well as paying for the said child’s medical school expenses[note: 27].

32     The Defendant’s Counsel also submitted that the Plaintiff had not provided proof of his loss of income[note: 28]. The Defendant’s Counsel referred to paragraph 27 of the Defendant’s Reply Affidavit, wherein the Defendant had stated that the Plaintiff’s UOB account had not been disclosed[note: 29].

33     The Defendant’s Counsel also referred to paragraph 26 of the Defendant’s Reply Affidavit and submitted that, contrary to the Plaintiff’s allegations, the Plaintiff had been receiving at least $4,000 to $5,000 every month into his ICBC account[note: 30]. The Plaintiff had said that this was for salary arrears but he gave no proof of this. The Defendant’s Counsel submitted that the inference was that he was still drawing about $5,000 per month so there was no material change of circumstances in his salary from the IJ date[note: 31].

34     The Defendant’s Counsel also submitted that the Plaintiff appeared to be in a much stronger financial position now as he was currently a joint owner of his HDB flat which was purchased in 2021. It was also fully paid up with a cheque which was issued from his current wife’s bank account. It was submitted that there was no evidence to show where the source of funds came from. However, this did show that the family was in a position of financial strength and stability to be able to fully pay off the flat at the purchase price of $635,000[note: 32].

35     The Defendant’s Counsel also submitted that the company [C] belonged solely to the Plaintiff and that what the Plaintiff had produced did not show the true state of the company’s financial position[note: 33]. It was submitted that this was because from the [C]’s website, it could be seen that the company had been involved in numerous major projects over the past few years as stated in paragraph 15 of the Defendant’s Reply Affidavit[note: 34].

36     It was also submitted that paragraph 17 of the Defendant’s Reply Affidavit showed that it was unsafe to rely on the Plaintiff’s documents on the true state of the company’s affairs as these were not audited statements and were no more than a self-serving exercise[note: 35]. It was therefore submitted that the Plaintiff had not discharged the burden of proof to show that there had been a material change of circumstances to warrant the rescission of the Defendant’s $1,000 per month spousal maintenance[note: 36].

37     The Plaintiff's Counsel responded that in the George Sapooran Singh’s case, there were 2 factors which had contributed to the Court’s decision. First, he had said that he had cancer but this was not true. So, this affected his credibility to the Court. It also did not affect his ability to work. The second reason was that he had claimed that he had to be the sole caregiver of his new wife but the Court found that it was not necessary for him to stop work to be the sole caregiver of his new wife[note: 37]. So, the facts were quite different from the current case where it was submitted that the material change that the Plaintiff was relying on was his total loss of income[note: 38].

38     The Plaintiff's Counsel also submitted that the Defendant had relied on a few bank statements which were only a narrow snapshot of a few months. It was submitted that the true situation was in the company’s statements[note: 39] that had been submitted in the Plaintiff’s Supporting Affidavits at pages 29 to 48 as prepared by the company’s accountants which were submitted to the Chinese authorities. It was also submitted that auditing was not necessary for a company of the size of the Plaintiff’s company[note: 40].

39     The Plaintiff's Counsel referred to the Plaintiff’s Final Reply Affidavit at page 38 for the purchase of the HDB flat and the fact that the money came from his current wife. It was submitted that the Plaintiff was fortunate to have a wife of means but the obligation was on him to pay maintenance for his ex-Wife. The Plaintiff's Counsel submitted that the Plaintiff’s current wife’s resources were her own and the Plaintiff’s sole income came from the company [C] which had been making losses for the past couple of years. It was therefore submitted that the Plaintiff’s lack of income now was the material change[note: 41].

40     The Plaintiff's Counsel also referred to the Plaintiff’s Final Reply Affidavit in paragraph 24 on the closure of the UOB account, which the Plaintiff said that he was forced to terminate as he did not maintain the minimum sum required to continue holding the account, which was $1,000 at any point in time. I noted that in paragraph 24 at page 7 of his Affidavit, the Plaintiff had also stated that prior to the termination, there was only $37.35 left in the UOB account.

41     The Plaintiff’s Counsel also submitted that the Defendant’s claim of her change of circumstances was not an application before the Court. It was also submitted that in any event, the Defendant’s medical report at page 66 of her Affidavit showed that this was a condition that she had been suffering for a long time and she had continued to work for the past 16 years despite this problem[note: 42].

42     With regard to Prayer 2 of FC/SUM 2054/2023 on the issue of Costs, the Plaintiff's Counsel informed that it was still the Plaintiff’s position that the Parties were to bear their own costs of the application. However, the Defendant’s Counsel informed that the Defendant was seeking Costs of between $2,000 to $3,000. The Plaintiff's Counsel responded that if the Court ordered Costs against any Party, then it should be at $1,000[note: 43].

43     For Prayer 3 of FC/SUM 2054/2023 which related to other relief orders, the Plaintiff's Counsel informed that the Plaintiff was not asking for any other relief. However, if Court did not agree to total recession, then the Plaintiff asked the Court to consider downward revision to $100 per month as a nominal sum[note: 44]. The Defendant’s Counsel submitted that there should not be any downward revision.

The Plaintiff’s Appeal

44     The Plaintiff has appealed against the whole of my decision given on 5 January 2024 wherein I had dismissed the Plaintiff’s application to rescind the payment of $1,000 monthly maintenance to the Defendant or to vary this amount downward to the nominal payment of $100 as monthly maintenance to the Defendant.

45     The Plaintiff’s appeal also appears to cover my order that there should be no Costs awarded and as earlier stated, that I had struck out the Plaintiff’s application for the said child to be solely maintained by the Defendant, as being redundant.

My Decision

46      On Prayer 1(a): In making my decision on Prayer 1(a) of the Plaintiff’s application that there be no maintenance payable for the Defendant, I noted that the Plaintiff’s case on the material change in his circumstances was that he was no longer earning the same income of $5,000 per month that he was earning at the time of the IJ Court Order granted in 2010[note: 45].

47     I also noted that the Plaintiff's Counsel had submitted that the Plaintiff had become saddled with debts and that his income had gone into negative territory[note: 46]. I further noted the Plaintiff's Counsel’s submission that the Plaintiff should not be the Defendant’s general insurer for life[note: 47] and that this was consistent with the case law principles.

48     However, I was of the view that the Plaintiff had failed to discharge the burden of proof to show that there was indeed a material change of his circumstances to warrant his application. In my view, the Plaintiff had failed to prove the loss or lack of income that he was relying on now, which had arisen after the IJ Court Order was made in 2010, and in light of the factors that had determined the maintenance order made in 2010, was sufficient enough to warrant a variation or rescission to not pay or reduce the payment of monthly maintenance for the Defendant.

49     In making this assessment, I noted that firstly, the Plaintiff had said that he had been in financial difficulty since 2018. However, the Plaintiff made no application to vary or reduce the maintenance payable by him for the Defendant or the said child until 2022 when he applied to reduce the agreed arrears in EMO xxx1/2022. Whilst I noted that the other Court’s reasons for dismissing the two MSS applications was based on a different set of circumstances, nonetheless it was not disputed in the present case that in 2022, despite his claim of financial difficulty since 2018, the Plaintiff had agreed to these arrears.

50     Secondly, I took into account the fact that although the Plaintiff had said that his company [C] had been incurring debts for the past 2 years, he also did not appeal against EMO xxx1/2022, which decision was made in December 2022, for him to pay instalments of $2,000 per month for the agreed arrears. This was on top of the then monthly maintenance payable by him for both the Defendant and the said child in the sum of $2,000 per month.

51     Thirdly, I noted that the Plaintiff did not explain why he chose to move his new family to Singapore in 2018, despite being in financial difficulty. In fact, the Plaintiff himself stated that it was a known fact that the costs and standard of living in Singapore is higher than in China. This was stated in paragraph 27 at page 8 of the Plaintiff’s Reply Affidavit.

52     In addition, I was of the view that the Plaintiff’s obligations to his new family must take into account his obligations to his previous family. In the present case, I noted that the Plaintiff’s new family was not prejudiced as they were not dependent on him financially because his current wife was of sufficient financial means to be able to fully pay for their current HDB flat in the sum of $635,300 in one cheque payment by way of a Cashier’s Order that was exhibited at pages 35 to 38 of the Plaintiff’s Reply Affidavit.

53     I was also of the view that since the Plaintiff no longer had to pay maintenance for the said child, then his liability to pay maintenance for his previous family had already been reduced by half. On the other hand, based on the 3rd factor in the ATS case[note: 48], I noted that the Defendant had been assessed in 2010 to require the monthly maintenance of $1,000 and that her current circumstances were such that she continued to require the monthly maintenance payable by the Plaintiff. As such, I dismissed the Plaintiff’s application to rescind or downward vary the payment of $1,000 monthly maintenance to the Defendant.

54      On Prayer 1(b): In making my decision on Prayer 1(b) of the Plaintiff’s application that the said child shall be solely maintained by the Defendant, I noted that this was already the case as the said child was over 21 years old (the said child was aged 23 years at the time of the hearing) and Clause 3(7) of the IJ Court Order did not provide for continued maintenance to be payable by the Plaintiff for the said child beyond 21 years[note: 49].

55     I also noted that the said child had not made any application for maintenance from the Plaintiff on his own behalf. In addition, I noted the Defendant’s Counsel’s submission that the Defendant was already paying for the said child’s medical school expenses[note: 50]. This was not disputed by the Plaintiff's Counsel. Therefore, I struck out Prayer 1(b) as I was of the view that this Prayer was redundant. As noted earlier, the Plaintiff's Counsel had agreed with my position[note: 51] at the hearing.

56      On Prayer 2: In making my decision on Prayer 2 of the Plaintiff’s application that Parties were to bear their own costs of this application, I am unable to understand why this is being appealed against as this was exactly what the Plaintiff had asked for in Prayer 2.

57      On Prayer 3: In making my decision on Prayer 3 of the Plaintiff’s application for other relief orders, this has been covered in my decision regarding Prayer 1(a) of the Plaintiff’s application as explained above.

Conclusion

58     Accordingly, I dismissed Prayer 1(a) and Prayer 3, struck out Prayer 1(b) and granted Prayer 2 of the Plaintiff’s application in FC/SUM 2054 of 2023 based on the reasons given above.

59     I have nothing further to add to my said reasons.

[note: 1]See Notes of Evidence at page 6 in lines 22 to 32.

[note: 2]See Notes of Evidence at page 8 at lines 29 and 30.

[note: 3]See Notes of Evidence at page 9 at lines 31 and 32 and page 10 from lines 1 to 2.

[note: 4]See Notes of Evidence at page 10 from lines 7 to 13.

[note: 5]See Notes of Evidence at page 11 from lines 27 to 32.

[note: 6]See Notes of Evidence at page 12 from lines 4 to 30.

[note: 7]See Notes of Evidence at page 13 from lines 25 to 32 and page 14 from lines 1 to 11.

[note: 8]See Notes of Evidence at page 15 from lines 23 to 32 and page 16 from lines 1 to 14.

[note: 9]See Notes of Evidence at page 17 from lines 4 to 23.

[note: 10]See Notes of Evidence at page 19 from lines 19 to 28.

[note: 11]See Notes of Evidence at page 19 from lines 29 to 31 and page 20 from lines 1 to 12.

[note: 12]See Notes of Evidence at page 20 from lines 14 to 22.

[note: 13]See Notes of Evidence at page 21 from lines 1 to 7.

[note: 14]See Notes of Evidence at page 21 from lines 18 to 28.

[note: 15]See Notes of Evidence at page 21 from line 32 to page 22 from lines 1 to 4.

[note: 16]See Notes of Evidence at page 23 from lines 4 to 9.

[note: 17]See Notes of Evidence at page 24 from line 10 to page 25 at line 26.

[note: 18]See Notes of Evidence at page 26 from lines 1 to 24.

[note: 19]See Notes of Evidence at page 26 from lines 28 to 31.

[note: 20]See Notes of Evidence at page 27 from lines 4 to 9.

[note: 21]See Notes of Evidence at page 28 from lines 10 to 22.

[note: 22]See Notes of Evidence at page 29 from lines 28 to 32 and page 30 from lines 1 to 16.

[note: 23]See Notes of Evidence at page 30 from lines 18 to 29.

[note: 24]See Notes of Evidence at page 32 from lines 3 to 17.

[note: 25]See Notes of Evidence at page 32 from lines 25 to 32 and page 33 from lines 23 to 32.

[note: 26]See Notes of Evidence at page 34 from lines 12 to 26.

[note: 27]See Notes of Evidence at page 36 from lines 11 to 32 and page 37 up to line 23.

[note: 28]See Notes of Evidence at page 38 from lines 1 to 4.

[note: 29]See Notes of Evidence at page 39 from lines 20 to 27.

[note: 30]See Notes of Evidence at page 39 from lines 1 to 3.

[note: 31]See Notes of Evidence at page 40 from lines 1 to 25.

[note: 32]See Notes of Evidence at page 38 from lines 14 to 20, page 41 from lines 1 to 32 and page 42 from lines 1 to 9.

[note: 33]See Notes of Evidence at page 42 from lines 17 to 23.

[note: 34]See Notes of Evidence at page 42 from lines 23 to 32 and page 43 from lines 2 to 10.

[note: 35]See Notes of Evidence at page 43 from lines 14 to 32 and page 44 from lines 1 to 8.

[note: 36]See Notes of Evidence at page 44 from lines 18 to 23.

[note: 37]See Notes of Evidence at page 45 from lines 7 to 18.

[note: 38]See Notes of Evidence at page 48 from lines 6 to 16.

[note: 39]See Notes of Evidence at page 49 from lines 10 to 19.

[note: 40]See Notes of Evidence at page 50 from line 1 to page 52 at line 11.

[note: 41]See Notes of Evidence at page 54 from lines 1 to 2.

[note: 42]See Notes of Evidence at page 56 from lines 16 to 32 and page 57 from lines 1 to 3.

[note: 43]See Notes of Evidence at page 58 from lines 16 to 24.

[note: 44]See Notes of Evidence at page 59 from lines 1 to 10.

[note: 45]See Notes of Evidence at page 12 at lines 31 and 32 and page 13 from lines 1 to 10.

[note: 46]See Notes of Evidence at page 13 from lines 1 to 9.

[note: 47]See Notes of Evidence at page 13 from lines 14 to 18.

[note: 48]“in light of the factors that determined the final maintenance order made at the ancillary hearing”.

[note: 49]See Notes of Evidence at page 6 in lines 16 to 22.

[note: 50]See Notes of Evidence at page 37 from lines 17 to 23 and at page 60 from lines 5 to 12.

[note: 51]See Notes of Evidence at page 6 at lines 26 and 27.

"},{"tags":["Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse"],"date":"2024-03-14","court":"Family Court","case-number":"Divorce No 4147/2021","title":"WVL v WVM","citation":"[2024] SGFC 16","url":"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%2F31272-SSP.xml","counsel":["Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife."],"timestamp":"2024-04-02T16:00:00Z[GMT]","coram":"Sheik Mustafa Abu Hassan","html":"WVL v WVM

WVL v WVM
[2024] SGFC 16

Case Number:Divorce No 4147/2021
Decision Date:14 March 2024
Tribunal/Court:Family Court
Coram: Sheik Mustafa Abu Hassan
Counsel Name(s): Chia Kia Boon (Robert Wang & Woo LLP) for the Plaintiff/Husband. Soo Poh Huat (Soo Poh Huat & Co) for the Defendant/Wife.
Parties: WVL — WVM

Divorce – Division of assets – Custody care control and access of children – Maintenance of children – Maintenance of former spouse

14 March 2024

District Judge Sheik Mustafa Abu Hassan:

Introduction

1       In this case, the Husband is the Plaintiff, and the Wife is the Defendant. They had married in April 2016. An interim judgment dissolving the marriage was decreed in November 2021 based on unreasonable behaviour of the Wife. The marriage had lasted 5 years and 7 months.

2       There are 2 children of the marriage. It is agreed that the parties share joint custody of the children. The outstanding issues for me to decide on are the care, control, access and maintenance of the children, the maintenance of the Wife, as well as the division of property between the parties.

THE CHILDREN

Background

3       In this section, I shall refer to the Husband as “the Father” and to the Wife as “the Mother”.

4       There are 2 children. The 1st child is 7 years old, and the second is 5 years old. They are both boys.

5       The parties agree to having joint custody of both children. The issue is who shall care and control the children.

6       The Father claims to be the primary caregiver of the children. He is a taxi driver. He fetches them from childcare/school every day, prepares meals for them, eats with them, gives them showers and goes through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers especially regarding one of the children’s speech delay and autism. He handles the administrative matters with the school. The Father alleges that the Mother had committed violence against the children, but his application for a personal protection order on their behalf was dismissed by this Court. The Father also argues that the Mother is likely to return to Vietnam and take the children with her.

7       The Mother claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. In the evenings after work she spends time with the children and puts them to bed. She claims that the Father is not interested in the children. The Mother also applied for a personal protection order against the Father, but her complaint was also dismissed by this Court.

8       I heard counsel for the parties, and I ordered for a child custody evaluation to be conducted. I have now received the report of the evaluators and consider it together with the other evidence already placed before me in the parties’ affidavits. Because many of the interviews conducted during the custody evaluation took place under a promise and expectation of non-disclosure, I will not make specific references of the contents of the report.

9       Based on the report and the evidence before me, I arrive at the following findings:

1.     Both parents are involved in the caregiving of the children. They both love the children and are familiar with their temperaments and needs.

2.     The 1st child is diagnosed with autism since he was 3 years old. His autism is mild, and he is coping well academically. The 2nd child appears to have no special needs.

3.     The children had expressed to the evaluator that they wish to live with the Mother. However, this attachment between them and the Mother is a result of their triangulation, and that they were simply reflecting the Mother’s emotional needs. They are parentified in this regard. If they are placed in the Mother’s care, it is likely that the parentification will become more entrenched and their development affected.

4.     On the other hand, the children do have a healthy attachment to the Father. The Father’s parenting is firm, but also warm. He is observed to be able to set boundaries and regular routines for the children and managing their behaviours whereas the Mother has difficulties doing so.

5.     The Father already has a fully paid-up home to accommodate the children, whereas the Mother’s accommodation is uncertain, since she rents a bedroom in a 4-room flat.

Conclusion

10     I find that there is no reason to not order the parents to have joint custody of the children. In any case, they have agreed to this. Both parents have the best interest of the children at heart, and I believe that they will co-parent effectively.

11     I find that it will be in the welfare of the children that they be in the care and control of the Father.

12     The children must have access with the Mother. There is no evidence to show that it would be against their welfare to have access with the Mother. I shall adopt an access arrangement recommended by the evaluator, as I find that it is fair and workable.

13     The Mother requests that the Father not know her address claiming that she fears he will harass her there. Parents who share joint custody of children, in order to exercise their parental responsibilities, must at least be aware of the children’s whereabouts when the children are with the other parent. The accusations of family violence have been dismissed. I find that there is no more basis to prevent the Father from knowing the Mother’s address because that is where the children will be residing at during access.

14     I therefore conclude that it is in the welfare of the children to order as follows:

1.     By consent, both parents shall have joint custody of the children.

2.     The children shall be in the care and control of the Father.

3.     The Father shall provide the children with access to the Mother as follows:

a.       On weekends alternating between the following:

(A)       First weekend: Friday after school to Monday morning. The Mother will collect the children from their schools on Friday and she shall send the children to school on Monday; and

(B)       Other weekend: Friday after school to Saturday evening at 8pm, when the Father shall collect the children.

b.       During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Father shall collect the children.

c.       Every Wednesday after school until 8:30pm. The Mother shall collect the children from school and shall return them to the Father by 8:30pm.

d.       The children shall also have access to the Mother via electronic means during non-access periods, and the Father shall have access to the children via electronic means during access periods.

e.       The children shall have access with the Mother during the first half of school vacations. The Mother shall collect the children from school at the start of the school vacation and the Father shall collect them on the second Saturday at 9pm.

f.       For Chinese New Year, the children shall be with the Father on the first day, and the children shall have access with the Mother on the second day from 9am to 6pm.

g.       For public holidays other than Chinese New Year, the children shall have access with the Mother on alternate public holidays from 9am to 6pm.

h.       The parents shall not comment about each other in the children’s presence.

i.       Neither the Father nor the Mother shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.

j.       Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.

Maintenance of the children

Background

15     On maintenance for the children, the Father seeks the Mother to pay $778.80 a month. The Father says that the children’s monthly expenses are $1,180.00. He argues that the Mother ought to bear 66%, or $778.80.

16     The Mother says that the children’s expenses are $420.00 for each child. This does not include housing, so she asks for $600.00 a month each to cover their housing.

17     The children are 6 and 4 years old at the time of hearing.

Means of parents

18     The Father is a taxi driver claiming to earn a take home income of $1,800.00 a month. The Mother disputes this and claims that he earns about $5,000.00 a month. She points out that the Father did not produce evidence from his taxi company to show his monthly collections.

19     In this regard, I find that the Father’s income tax assessment is prima facie proof that his income is $18,000.00 a year, which is $1,500.00 a month, lower than what the Father claims. I therefore accept $1,800.00 a month as the Father’s income.

20     The Mother is a waitress taking home $2,044.96. She pays $1,800 in rent. This leaves her disposable income at $244.96.

21     The total means of the parties is therefore $2,044.96 a month.

Expenses of children

22     I am conscious that there is no requirement that every expense must be proved (UEB v UEC [2018] SGHFC 5, at paragraph 13). I instead apply a broad brush in evaluating the expenses and come to my findings on them.

23     I accept the evidence of the Father that the expenses of the 1st child are $750.00 a month, and the expenses of the 2nd child are $430.00 a month. I find that these are reasonable taking into account the needs of the children and the means of the parents. The total is $1,180.00.

Allocation of maintenance

24     The legal position is that each parent has an equal responsibility to maintain the children it but does not mean that they have to bear equal shares of the burden (BPC v BPB [2019] 1 SLR 642, at paragraph 111).

25     I take into account that I have ordered the care and control of the children to be with the Father.

26     Based on her disposable income, that the Mother’s proportionate share to contribute to the children’s maintenance is 12%.

27     Pursuant to the orders of access I have made above, the children will be spending a considerable amount of time with the Mother – on Wednesday evenings, and on weekends from Friday after school. During these periods, the Mother must bear the children’s expenses.

28     I apply a broad brush to this issue and find it to be fair and reasonable for each parent to bear all the expenses of the children when the children are with them. I therefore make no order that the Mother pay any monthly maintenance for the children to the Father.

29     However, I find it to be fair and reasonable to order that the Mother shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.

Division of assets

30     Hereinafter I shall refer to the Plaintiff as “the Husband” and to the Defendant as “the Wife”.

Jointly owned asset

31     There are no jointly owned assets.

The Husband’s assets

32     It is not disputed that the Husband has the following in his own name:

1.

DBS bank account

$784.80

2.

CPF accounts

$277,618.04

 

Total

$278,805.56



33     The Husband has a UOB savings account shares with his ex-wife containing $424.72. The Husband has a joint saving account with his daughter from his previous marriage containing $501.63. I exclude these from the asset pool as they do not fall in within the definition of matrimonial asset under section 112 (10) of the Women’s Charter, since they were not acquired during the present marriage, nor substantially improved during the marriage nor used for the purposes of the family.

34     The Husband has 2 CDA accounts for 2 children. I exclude them from the asset pool as these by nature are meant specifically for the children.

35     The Husband has 2 joint accounts with his minor children from the present marriage containing a total of $402.72. I include these in the asset pool as they fall within the section 112 (10) of the Women’s Charter.

36     The Husband is the sole owner of the matrimonial home, which is a 3-room HDB flat purchased in May 2011. There is no outstanding loan. This flat was bought before the parties’ marriage in 2016. The parties and the children of their marriage lived in this flat. The value of the flat is not disputed to be $441,000.00.

37     I find that the Husband’s own assets amount to $720,208.28.

The Wife’s assets

38     It is not in dispute that the Wife has assets in her own name as follows:

1.

Bank account

$1,461.90

2.

CPF accounts

$10,892.56

 

Total

$12,354.46



39     The Husband claims that he gave to the Wife a sum of $55,000 which the Wife used to purchase a property in Vietnam. The Wife denies this. The Husband bears the burden of proving this fact. I find that he has not proved this.

40     The Husband alleges that the Wife has a property, an estate and bank accounts in Vietnam which has not been disclosed. He asks for an adverse inference to be drawn against her for this.

41     The Wife says that she used to have a property in Vietnam that was inherited by her from her previous husband who passed away in 2007. She sold that property and used part of the sale proceeds to purchase a smaller property in 2019. Her mother and elder sister lives there. There is no mortgage loan outstanding, and she says its value is $10,000. She did not produce any evidence in support of these. I will deal with this issue below.

Total asset pool

42     I find that the combined pool total matrimonial asset pool amounts to a value of $732,562.74. The details are in the table below.

Asset

Value

Husband’s assets

$720,208.28

Wife’s assets

$12,354.46

Total asset pool

$732,562.74



Parties’ positions

43     The Husband asks for the home to be retained by him solely and the Wife be removed as a permitted occupier without any consideration from him. He asks that he retain his own assets. He asks that the Wife pay him $55,000 or that he gets a share of the Wife’s Vietnam property.

44     The Wife asks for the home to be sold in the open market and the sale proceeds to be divided between the parties; or that the Husband may retain the flat and she gets a share of the asset pool.

Direct contributions

45     Consequently, I find that each party’s direct contributions to the total matrimonial asset pool that are as follows-

46     The direct contributions are as follows:

Total direct contributions

$732,562.74 (100%)

% by the Husband

98.3%

% by the Wife

1.7%



Indirect contributions

47     The Husband says that he has been the sole breadwinner of most of the marriage. He applied for the Wife’s permanent residency and made her an authorised occupier of his flat. He says that he is the primary caregiver of the children. He fetched them from childcare/school every day, prepares meals for them, eats with them, gives them showers and go through their schoolwork or play with them. He brings the children out on weekends when he does not work. He brings them for medical treatments and attends meetings with teachers on one of the children’s speech delay and autism. He handles the administrative matters with the school. He points out that the Wife left the matrimonial home and became uncontactable for a month in April 2020, and he claims that even then the Wife did not bother with the children.

48     The Wife says that she made half of the indirect contributions. She says that after marrying the Husband she relocated to Singapore but was unable to find employment, so she could not contribute financially to the home. She sold her property in Vietnam which she inherited from her deceased previous husband, and used the proceeds of the sale to buy a smaller property in Vietnam. She says that she alone made the payments for the purchase. Indeed, she claims that the reason she sold the property was because she needed the funds as the Husband had ceased to give financial support for her and the children. She says that after the birth of the 2nd child the Husband stopped maintaining her and the children even though she was not yet a permanent resident and so was unable to work. She says she was in a constant state of fear and uncertainty, and there were days that she did not have enough to eat. She says that a year later the Husband threw her out of the home, and she had to sleep in a park. She says that when she begged to return, the Husband demanded that she pay him $400 a month for rent. She says that she obtained permanent residency in April 2021 which she paid for herself. She took on more than one job. With her income she was able to purchase appliances such as fans, cooking apparatus, crockery, pillows, bedsheets and daily household necessities. She claims that she is the primary caregiver of the children. She also claims to prepare the children and sends them to childcare. She discusses with their teachers. She cooks for the family. She buys groceries. In the evenings she spends time with the children and puts them to bed. She cleans the home. She claims that the Husband is not interested in the children and does not assist in the housework.

49     The marriage was 5 years long. There are 2 children. Both parents worked to support the family. They both made sacrifices, and at times supported each other financially. I apply a broad brush to the facts before me. I find that the indirect contributions of the parties are not equal, but 60% from the Wife.

 

Husband

Wife

Direct contributions

98.3%

1.7%

Indirect contributions

40%

60%

Result

138.3%

61.7%



Average ratio

50     The size of the matrimonial asset pool is not extraordinarily large, nor was it accrued by any one party’s exceptional effort. The extent and nature of indirect contributions are also not of such nature that calls for exceptional consideration. It was a relatively short marriage of 5 years. The bulk of the assets belong to the Husband, which he acquired before the marriage. I therefore exercise my discretion in these circumstances and give more weight of 60% to the direct contributions.

 

Husband

Wife

Direct contributions (60%)

58.98%

1.02%

Indirect contributions (40%)

16%

24%

Result

74.98%

25.02%



The Wife’s Vietnam assets

51     I find that the Wife did not make a reliable declaration of the value of the property in Vietnam as well as the bank accounts there. Based on the evidence I am not in a position to find what the correct value of the property is. The information must have been either available to the Wife, or obtainable by her. I find that it would be just and equitable to factor in 10% for an inference against the Wife regarding the true value of the property. The result is shown as follows.

 

Husband

Wife

Direct contributions (60%)

58.98%

1.02%

Indirect contributions (40%)

16%

24%

Result

74.98%

25.02%

After inference (10%)

84.98%

15.02%

Share of total asset pool

($732,562.74)

$622,531.82

$110,030.92



Result

52     I begin by ordering the parties to keep the assets they each already have in their own names.

53     As above stated, the Wife already has $12,354.46 of her own assets. I order that the Husband shall pay to the Wife the remaining amount of $97,676.46. I shall deal with this together with the issue of the Wife’s maintenance below.

Maintenance of the Wife

Background

54     The Wife seeks an order of maintenance for herself in the monthly sum of $600.

55     As previously stated, the Wife is a waitress earning $2,044.96 a month. She pays most of that for rent.

56     The Husband argues that there ought to be no order of maintenance for the Wife. He argues that the Wife is relatively young and able bodies, whereas he is in the sunset of his career. He submits that the Wife has failed to make full and frank disclosure about her access to funds. He argues that the Wife rent payment is not proved.

Findings

57     Whether or not I ought to order the Husband to pay maintenance to the Wife is a multifactorial inquiry (TNL v TNK and another appeal and another matter [2017] SGCA 15 at [62]). It is supplementary to my order on the division of the assets (ATE v ATD [2016] SGCA 2 at [33]).

58     The Wife has $1,461.90 in her bank account. I have found her share of the matrimonial asset pool to be $110,030.92, of which the Husband is to pay her $97,676.46. These should be sufficient provision for the Wife to transit to a post-divorce life and provides a clean break in the parties’ marital relationship.

59     I therefore order that the Husband to pay a lump sum of maintenance to the Wife in the sum of $97,676.46 within 6 months of the date of final judgment.

Costs

60     The Wife is legally aided.

61     The Husband succeeded on the issues of care and control of the children, as well as the division of assets. The Wife succeeded on the issue of maintenance to her.

62     I find that it is fair and just to make no order as to costs.

Clarification

63     After I released the above judgment, Counsel for the Wife wrote in requesting a clarification on 2 issues. The first issue is about the interpretation of the terms of access. Counsel says that the term “weekends alternating between first weekend and other weekend” is confusing and requests clarification. In reply, Counsel for the Husband agrees.

64     I agree. In order to clarify the order, I amend it to as follows:

Custody care and control of children of the marriage

1.    By consent, both parents shall have joint custody of the children.

2.    The children shall be in the care and control of the Plaintiff.

3.    The Plaintiff shall provide the children with access to the Defendant as follows:

a.     Every weekend, alternating back and forth between the following:

(A)     Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and

(B)     Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.

b.     During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.

c.    Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.

d.    The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.

e.     In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.

f.    For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.

g.    For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.”

65     The second issue that the Wife’s Counsel requests clarification is about my order that the Husband pays to the Wife a sum of $97,676.46 as lump sum maintenance in order to reflect her share of the division of the matrimonial asset pool. The Wife’s Counsel suggests that the amount be transferred from the Husband’s CPF to the Wife instead, and that there be no order on maintenance for the Wife. The learned Counsel for the Husband concurs with this view.

66     I did not make an order to transfer from the Husband’s CPF to the Wife simply because it was not requested for by the Wife during the course of the hearing. However, since both parties are in agreement on this issue, I amend the relevant portions of my order to as follows:

Division of the matrimonial assets (aside from the matrimonial home)

The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.

The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):

The Member’s CPF account(s) to transfer from

Amount to transfer

Ordinary Account

$97,676.46



This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.

The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.

The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.

Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.

Maintenance for wife / incapacitated husband

The Plaintiff is not liable for maintenance to the Defendant.

_________________________________________

ORDERS :

ORDERS (CLARIFIED):

Custody care and control of children of the marriage

1.     By consent, both parents shall have joint custody of the children.

2.     The children shall be in the care and control of the Plaintiff.

3.     The Plaintiff shall provide the children with access to the Defendant as follows:

a.      Every weekend, alternating back and forth between the following:

(A)        Friday after school to Monday morning. The Defendant will collect the children from their schools on Friday and she shall send the children to school on Monday; and

(B)        Friday after school to Saturday evening at 8pm, when the Plaintiff shall collect the children.

b.      During school holidays, every Friday from 5pm on Friday to Saturday 9pm, when the Plaintiff shall collect the children.

c.     Every Wednesday after school until 8:30pm. The Defendant shall collect the children from school and shall return them to the Plaintiff by 8:30pm.

d.     The children shall also have access to the Defendant via electronic means during non-access periods, and the Plaintiff shall have access to the children via electronic means during access periods.

e.      In addition to the above, the children shall have access with the Defendant during the first half of school vacations. The Defendant shall collect the children from school at the start of the school vacation and the Plaintiff shall collect them at the end of the access on Saturday at 9pm.

f.     For Chinese New Year, the children shall be with the Plaintiff on the first day, and the children shall have access with the Defendant on the second day from 9am to 6pm.

g.     For public holidays other than Chinese New Year, the children shall have access with the Defendant on alternate public holidays from 9am to 6pm.

h.     The parents shall not comment about each other in the children’s presence.

i.     Neither the Plaintiff nor the Defendant shall by himself/herself, his/her agents or his/her servants, bring the children, out of Singapore without the prior written consent of the other or an Order of Court.

j.     Both parents and the children shall attend counselling at FAM@FSC as well as the Children-in-Between Programme.

Maintenance for child(ren) of the marriage

Each parent to bear all the expenses of the children when the children are with them. The Defendant shall bear 12% of common expenses such as school fees, tuition fees and medical expenses.

Division of the matrimonial home

The Plaintiff shall retain all rights interest and share in the matrimonial home at Block XXX Fernvale Road #XX-XXX, Singapore XXXXXX. If applicable, the Defendant shall cease to be an authorised occupier of the home.

Division of the matrimonial assets (aside from the matrimonial home)

The Defendant [hereinafter referred to as the “Spouse”] shall be entitled to $97,676.46 of the Plaintiff’s [hereinafter referred to as the “Member”] Central Provident Fund (“CPF”) monies pursuant to section 112 of the Women’s Charter.

The Board shall transfer, from the monies standing to the credit of the Member in the following CPF account(s) of the Member’s, the amount(s) specified as follows to the Spouse’s CPF account(s):

The Member’s CPF account(s) to transfer from

Amount to transfer

Ordinary Account

$97,676.46



This Order is made subject to the Central Provident Fund Act (“CPF Act”) and the subsidiary legislation made thereunder made in respect of the Member’s CPF monies, property and investments. The CPF Board shall give effect to the terms of this Order, in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. That all obligations to effect the transfer to the Spouse of any amount that has been charged from the Member to the Spouse shall be on the Parties and not on the Board. Unless expressly provided for in the CPF Act, nothing in the Orders herein shall be taken to affect the Board’s charge on the matrimonial home or any other immovable property owned by one or both of the parties and which is the subject of this Order of Court. The Board shall determine the requisite refunds to be made to the respective parties’ CPF accounts upon the sale, transfer, assignment or otherwise disposal of such immovable property in accordance with the CPF Act and the subsidiary legislation made thereunder.

The shortfall, if any, between the Ordinary Account and the payment received by the Spouse from the Board or transferred to the Spouse’s CPF account is a debt due from the Member to the Spouse and is recoverable as such.

The Registrar/ Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act 2014 is empowered to execute, sign, or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to the party.

The Parties, including the Board, shall be at liberty to apply for further directions or Orders generally.

Each party shall retain all other assets that are in their own names or not in their joint names, and neither shall have any rights or claims on the assets of the other hereafter.

Maintenance for wife / incapacitated husband

The Plaintiff is not liable for maintenance to the Defendant.

Costs

No order on costs.

Such further or other reliefs as the Court deems fit

Liberty to apply.

"},{"tags":["Mental Capacity Act – Appointment of Deputies – Revocation of Appointment"],"date":"2024-03-15","court":"Family Court","case-number":"FC/OSM 253/2023 and FC/Summons 3230/2023","title":"WVG v WVH and another","citation":"[2024] SGFC 14","url":"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%2F31182-SSP.xml","counsel":["Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff","Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&L Gates Straits Law LLC) for the Defendants."],"timestamp":"2024-03-20T16:00:00Z[GMT]","coram":"Shobha Nair","html":"WVG v WVH and another

WVG v WVH and another
[2024] SGFC 14

Case Number:FC/OSM 253/2023 and FC/Summons 3230/2023
Decision Date:15 March 2024
Tribunal/Court:Family Court
Coram: Shobha Nair
Counsel Name(s): Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff; Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&L Gates Straits Law LLC) for the Defendants.
Parties: WVG — WVH — WVI

Mental Capacity Act – Appointment of Deputies – Revocation of Appointment

15 March 2024

District Judge Shobha Nair:

Introduction

1       The plaintiff in this matter sought to revoke an order appointing the defendants as deputies (deputyship order) for their father (P) who has lost the mental capacity to make decisions for himself in respect of his personal welfare and his property and affairs. P and his wife (the mother of the defendants) have been separated since 2014 when P left the matrimonial home to stay with the plaintiff and her children. The plaintiff also sought by way of summons 3230/2023, to be a joint deputy with the defendants, should the revocation application not be granted. She sought to be allowed access to P which was strongly resisted by the defendants.

2       Having considered the evidence, I made the following orders:

a.     The application for the revocation of the deputyship order was dismissed.

b.     The plaintiff however shall be appointed as deputy jointly with the defendants insofar as it relates to the management of P’s personal welfare. The management of P’s property and affairs shall continue to remain with the defendants who are subject to the supervision of the Office of the Public Guardian and would need to report annually on the performance of their obligations in this regard.

c.     P shall continue to stay with the defendants if there is no agreement amongst the parties on the living arrangements for P. The plaintiff shall be permitted to visit and care for P daily if she wishes to and shall be jointly responsible for the management of P’s health. All parties are to be privy to communication with caregivers and medical professionals and all decisions are to be made jointly in the interests of P.

d.     Each party is to bear his/her own costs.

3       The plaintiff appeals against the order dismissing the application for the revocation of the deputyship order and the dismissal of her request to be appointed as co-deputy for P’s property and affairs. The defendants appeal against all orders save for the order dismissing the application for revocation of the deputyship order.

Undisputed Facts

4       The plaintiff and P entered a romantic relationship when P was still married. P moved in with the plaintiff and the latter’s children in 2014. Between 2015 and 2022 the couple travelled together on at least 24 occasions to various destinations.[note: 1]A motorcycle accident whilst in Krabi in 2016 resulted in P’s urgent return to Singapore. He was admitted to a hospital and brain scans revealed the need for surgery. P did not provide his consent. Although he appeared to show improvement a few months after the accident, P’s health declined significantly from 2018. He was also diagnosed with dementia in January 2020 after a fall while at the plaintiff’s home.[note: 2]

5       P’s wife filed for divorce in April 2021. In July 2022, the defendants filed an application seeking an order for their appointment as deputies (FC/OSM233/2022). They did not inform the Court of the relationship between P and the plaintiff and only detailed the immediate family members as relevant persons. One of the key reasons in seeking the appointment was to enable counsel to be instructed to act for P in the divorce proceedings. Interim judgment was granted on 9 November 2021 and orders on ancillary matters have been made.

6       I issued the order appointing the defendants as deputies in September 2022, having been satisfied that they had a proper plan to care for P and as children of P, are likely to provide long term care for their father.

7       In April 2023, a summons was filed by the defendants seeking that the plaintiff be prevented from access to P. It was only then known to the Court that P was in a long-term relationship with the plaintiff. I had directed that the summons be served on the plaintiff.

8       In August 2023, the plaintiff filed the present application in OSM 253/2023 and subsequently in October 2023, summons 3230/2023.

Should the order be revoked on account of non-disclosure of a relevant fact?

9       Section 20 (7) of the Mental Capacity Act (2008) (MCA) provides for a Court to discharge a deputyship order or vary the same. Section 20(8) of the Act provides specific circumstances when an appointment of a deputy may be revoked. For ease of reference, these are when a Court is satisfied that:

a)     A deputy is convicted, on or after 1 September 2018 (but not before the deputy’s appointment by the court), of an offence (whenever committed) of criminal misappropriation, criminal breach of trust, cheating, theft or extortion or any other offence involving fraud or dishonestly, whether as against P or another person;

b)     The deputy engages or has engaged in conduct that contravenes the deputy’s authority conferred by the court, or that is not in P’s best interests (whether or not the deputy is acting under a court order);

c)     The deputy proposes to engage in conduct that would contravene the deputy’s authority conferred by the court, or that would not be in P’s best interests (whether or not the deputy is acting under a court order); or

d)     Where the deputy is a professional deputy, the registration of the deputy as a professional deputy is cancelled.

10     When the defendants filed their application to be appointed as deputies, their counsel at the time did not inform the Court that P was in a relationship with the plaintiff and that they were living together. An application to be appointed as a deputy can be made by anyone who has been giving care or is able to give care to P. It is not only available to family members. In fact, in the supporting affidavit filed by the defendants in support of their appointment in OSM 233/2022, they omitted to indicate the name of the plaintiff in a table which is titled “other relevant persons” and which provides examples of such persons to be those that are in a close relationship with P or who give care to P.[note: 3] The omission to inform the Court of this has serious consequences as it shut out the plaintiff and prevented her voice from being heard. Even if the children of P may not have a good relationship with the plaintiff and may even view her as instrumental in the break-up of the relationship between their parents, they cannot take the position that P need not have the plaintiff participate in P’s care. If it is evident that P wanted the plaintiff to be a part of his life, the responsibility of a Court is to take that into consideration in determining the best care plan for P.

11     P has lost his autonomy to decide on matters pertaining to his personal welfare and property and affairs. It would be important to look at the words and actions of P while he had the capacity to make his own decisions, on what would serve him when he no longer has that capacity. In fact, the newly engaged counsel for the defendants acknowledged that the defendants’ omission to state the plaintiff as a relevant person, was regrettable.[note: 4]

12     The omission of facts may well occasion the revocation of orders if material. This was seen in Wong Meng Cheong v Ling Ai Wah[note: 5] where the Court found inter alia that the conduct of the deputies was reprehensible and violated the interests of P. In the case before me, the failure to recognise the plaintiff as a relevant person does not in and of itself necessitate a revocation unless the appointment of the defendants was inappropriate.

Was the appointment of the defendants as deputies appropriate?

13     There is a need for stable and sustainable care for persons without mental capacity. The appointment of adult children as deputies for their parent(s) is desirable, provided they have the capacity to care and have good care plans in place. With P’s marriage having been dissolved, the closest family members of P are his children. They are both working adults and are well placed to care for P and to manage his property and affairs. The nature of kinship made their appointments for the long term feasible.

14     It was the position of the plaintiff that when the defendants were appointed as deputies, they did not give proper care to P. She spoke for example of an incident caught on her closed-circuit television which showed that the 2nd defendant was on his mobile phone while P struggled to get into bed to rest. This and all other allegations of neglect was vehemently denied by the defendants. They made their own allegations against the plaintiff. It was their position that P was a fit and healthy individual prior to him leaving the matrimonial home to stay with the plaintiff. They pointed to various incidents of neglect even as recently as February 2023 which resulted in another admission to hospital. Allegations of neglect were similarly denied by the plaintiff. It would be difficult to assess the accuracy of the allegations made by the parties. Caregiving is challenging and no caregiver is perfect. While I understand the emotion behind the allegations, I did not find any pattern of neglect by either the plaintiff or the defendants. Much of the events after the hospital admission in February 2023 however, were relevant to the applications before me.

15     Upon his discharge from hospital, the defendants placed P in a serviced apartment. This appeared to have also been an effort to prevent access to the plaintiff. The plaintiff pointed to the fact that P had been moved from one hotel/service apartment to another from March 2023[note: 6] without anyone giving him proper care. She said she visited him every day, much to the chagrin of the defendants who did not permit such visitation. She claimed that P was not fed properly, and medication not properly administered. Again, this was denied by the defendants. The defendants then took active steps to restrict or prevent the plaintiff’s access to P. The defendants also pointed to a withdrawal of a total amount of $450 000 from P’s bank account during the period P was staying with the plaintiff.[note: 7] As P is a man of sound financial means, the suggestion was that the plaintiff ought not to oversee P’s financial matters to prevent any possible mismanagement.

16     I was concerned by the fact that P was made to move from one hotel to another. More permanent accommodation and care arrangements should have been put in place when or shortly after the orders appointing the defendants as deputies were issued. Any mistrust they had over the care provided by the plaintiff was not responded to by the provision of better care but instead, what appears to be even poorer arrangements. An individual in P’s shoes would require close supervision, good nutrition, and a stable physical environment. P was largely left to himself in these hotels. I expressed this to the defendants’ previous counsel during various case conferences.

17     When the matter came up for hearing, the care arrangements were significantly different. A two-bedroom apartment was rented for P to stay in and a full-time helper for his care was engaged by the defendants. The 2nd defendant spoke of how he attended a 3-day course to help him care for P better and a dietician was engaged to plan P’s meals.[note: 8]

18     While the initial plans of the defendants fell short of what would be expected for P, the steps the defendants have taken since, and which are in place today, are satisfactory. While it is possible that the defendants took these steps quickly in order to satisfy the Court, I do not believe that they would renege on their obligations after the hearing. There was no need for the revocation of the order. The question that stood to be considered instead was whether the request of the plaintiff to be a co-deputy of P ought to be granted.

Would it be in the best interests of P to enable the plaintiff to be a co-deputy?

19     It is understandable that the children of P have a deep sense of suspicion and even scepticism towards the plaintiff who entered a relationship with their father when the latter was still married. Even as she claimed that she did not know he was married at the time the relationship started, she came to know of it but continued. While the feelings of the children can certainly be understood, it is not the Court’s place to deny the plaintiff a place in the care of P if it was appropriate to do so. P and the plaintiff were in a close relationship, and it was P’s desire to stay with the plaintiff. The plaintiff did accompany P for his various medical appointments, and they lived as a family with the plaintiff’s children. Section 6 of the MCA addresses the issue of best interests and specifically provides at s 6(8) that a Court should consider:

a)     the person’s past and present wishes and feelings (and in particular, any relevant written statement made by the person when the person had capacity);

b)     the beliefs and values that would be likely to influence his or her decision if the person had capacity; and

c)     the other factors that the person would be likely to consider if the person were able to do so.

20     I was of the view that the plaintiff should continue to play a part in the personal welfare of P and ordered accordingly. P was clearly comfortable in the plaintiff’s presence as seen in various Whatsapp messages.[note: 9] There was no need to deny her continued engagement in his care. At the same time, the health of P was such that it was imperative that there be a constant care provider and minimal disruption to his routine. The presence of a domestic helper at his rented residence which was situated in an area that he was familiar with, was closer to the ideal than to move him back to the plaintiff’s residence. More importantly, P requires care that the plaintiff may not be able to manage effectively, given that she is a working adult. P’s needs may increase over time and a helper who is accessible at all times would be prudent. I ordered that the plaintiff may visit P at any time if P does not live with her and that she be engaged on any medical decisions that may need to be taken. I did not accept the defendants’ position that the plaintiff was a poor caregiver as seen in the numerous times that P had fallen ill when in her care. They pointed to an incident where P ended up in hospital after the plaintiff took him for a meal at a hotel. Given that P suffers from gout, certain foods provided in the buffet should not, they alleged, have been consumed. This reductionist approach to the issue of care was not helpful. For the incident at the hotel, the plaintiff chose to take P for a meal and did not have any intention to cause harm. Unfortunately, the consumption of unsuitable food led to P having to be admitted to hospital. Often even with the best of care, incidents like these do happen. Health issues including gout, a motorcycle accident, a fall while at home – these collectively contributed to the deterioration of P’s health. There was nothing in the evidence that points clearly to the plaintiff as having been so negligent as to have caused it.

21     Similarly, I did not find the argument that the poor relationship between parties is a reason to disqualify the plaintiff from working with the defendants in the care of P. The parties, as adult caregivers share a close relationship with P. There may be many differences in how care should be given. The idea however is to work together and for each to step up in areas where another may not be able to. All the deputies work outside the home and do not have the ability to provide care at all times. Rather more realistically, the domestic helper will be the one managing the day to day needs of P. As explained above, the most challenging issue was where P should stay, and I had ordered that he may remain in his current condominium unit with his children attending to him there if an alternative was not agreed to. It was inappropriate to restrict access by the plaintiff to P and to disengage her from P’s care. However, I did not entrust the plaintiff with the management of P’s property and affairs. Given the suggestion that monies may have been withdrawn in the past from P’s bank account(s) and which therefore require further investigation, and the fact that P had gone through divorce proceedings very recently, necessitated in my view, some degree of caution.

Costs

22     I had ordered that each party was to bear his or her own costs. Typically for applications under the MCA, costs are drawn from the estate of the person to be assisted (TRD v TRE & Ors.)[note: 10] unless some other order is warranted.[note: 11]

23     In this case, the plaintiff was not successful in her main application to revoke the deputyship order nor her request to be appointed as a co-deputy for the property and affairs of P even as she was successful in being appointed as a co-deputy for the personal welfare of P. The defendants even though successful in resisting the revocation of the deputyship order had omitted to inform the Court of the plaintiff’s close relationship with their father which occasioned this litigation. In the circumstances, I was of the view that each party was to bear his or her own costs.

Conclusion

24     When an individual loses his or her mental capacity, the person who is appointed as deputy would need to always act to serve the best interests of the person to be assisted. The tendency to believe that a certain course of action is in the best interests of P when it is in fact a course that fits the values and beliefs of the deputy would need to be avoided.

25     On the totality of the evidence, it is my view that there was no need to revoke the order appointing the children as deputies. The need for long-term sustainable plans is crucial for P’s wellbeing. I believe the children will be able to provide this. It bears repeating that no plan is perfect but perfect efforts must always be exercised. The omission to identify the plaintiff as a relevant person while regrettable, is not fatal. The continued relevance of the plaintiff in the life of P is reflected in my orders enabling her to work with P’s children in the management of P’s care.

[note: 1]Paragraph 10 of the plaintiff’s affidavit of 4 August 2023.

[note: 2]Ibid. at paragraph 27.

[note: 3]Pages 8 and 9 of the Supporting Affidavit of the defendants dated 6 July 2022.

[note: 4]Page 9D of NE dated 1 December 2023.

[note: 5][2012] 1 SLR 549 (HC)

[note: 6]Paragraph 44 of the plaintiff’s affidavit of 4 August 2023.

[note: 7]Paragraph 18 of the defendants’ affidavit of 28 April 2023.

[note: 8]Paragraph 27-29 of the second defendant’s affidavit dated 15 November 2023.

[note: 9]CWS-7 of the plaintiff’s affidavit of 4 August 2023.

[note: 10][2016] SGFC 55.

[note: 11]See s 40 (1) and (2) of the MCA and Rules 190 and 852(2) of the Family Justice Rules 2014.

"}] \ No newline at end of file