Skip to content
laws.sgby aturio
Grounds publishedDecided 2 Jul 2014
Contents

High Court

AEL and others v Cheo Yeoh & Associates LLC and another

Feedback & support

[2014] SGHC 129Case no. Suit No 822 of 2011/E

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

  1. Chan Seng Onn J:

  2. Introduction

  3. [1] The late [X] (“the Testator”) was an Indonesian businessman who had made a will (“the New Will”) for the distribution of his assets in Singapore. The New Will was made with the legal assistance of the second defendant (“Cheo”), a solicitor of the first defendant firm, and it was intended to replace an earlier will (“the Old Will”) which the Testator had made jointly with his wife who predeceased him. However, the New Will was later discovered to be defective as it had been executed in the presence of only one witness, hence failing to comply with s 6(2) of the Wills Act (Cap 352, 1996 Rev Ed). This discovery was made only after the death of the Testator when an application for probate was rejected. In the event, letters of administration were applied for and granted and the Testator’s estate was, accordingly, distributed under the Intestate Succession Act (Cap 146, 1985 Rev Ed) (“ISA”).

  4. [2] The 1st to 3rd plaintiffs are three of the Testator’s six children. The 4th to 18th plaintiffs are the Testator’s 15 grandchildren. They are, collectively, the disappointed beneficiaries under the New Will which they claim was rendered defective because of Cheo’s negligence in properly supervising its execution. Accordingly, they bring this action in tort to claim, primarily, for damages equivalent to the difference in amount which they would have received under the terms of the New Will and that which they actually did receive under intestacy. Additionally, the plaintiffs also claim for the reimbursement of expenses which they paid to Indonesian solicitors in connection with their application for letters of administration.

  5. [3] After careful consideration, I am allowing the plaintiffs’ claim. I now proceed to set out the facts in greater detail before providing the reasons for my decision.

  6. Background facts

  7. The Testator and his family

  8. [4] The Testator was an Indonesian businessman who married one [Y] in 1954. He lived in Indonesia where he carried on, at various times, a construction business as well as other businesses which traded in goods such as flour, textiles and cigarettes. The Testator thus accumulated a variety of assets in Indonesia during his lifetime which included shophouses, pieces of land, monies in bank accounts, and other personal effects. Importantly, he also had assets in Singapore which consisted solely of monies held in various bank accounts. It is with the distribution of these Singapore assets, specifically, that the present dispute is concerned.

  9. [5] Together with his wife, the Testator has four sons—[S], [M], [D] and AEN—and two daughters—AEL and AEM. Of these six children, only three are plaintiffs in this suit, namely, AEL, AEM and AEN. They are named, in that order, as the 1st to 3rd plaintiffs. While the Testator’s three other children are not parties to this suit, I should mention here that they also have some involvement in these proceedings. All three of them have sworn a joint affidavit together with their plaintiff siblings while [M] and [D] also gave evidence at the trial.

  10. [6] All the Testator’s children are adults in their fifties or sixties and, with the exception of AEL, they currently reside in different parts of Indonesia. AEL moved to Singapore in the mid-1980s and has been living here since. She would thus help the Testator when he came to Singapore to conduct his affairs, for example, by driving him to the bank.

  11. [7] All the Testator’s children also have children of their own (ie, the Testator’s grandchildren). By the time this action was brought, the Testator had a total of 15 grandchildren who are the 4th to 18th plaintiffs in this suit.

  12. The Old Will

  13. [8] The Testator executed the Old Will jointly with his wife in Singapore on 16 November 1990 to provide for the distribution of their assets in Singapore. The Old Will stipulates that, upon the death of either the Testator or his wife, it can be revoked by the surviving spouse. However, if the Old Will is not so revoked, then the assets are to be distributed in the following manner upon the death of the surviving spouse: 20% to AEN, 10% each to the remaining five children, and 30% to be divided equally among all the grandchildren.

  14. The New Will

  15. [9] Some 14 years after the Old Will was made, the Testator’s wife passed away on 29 January 2005. Thereafter, the Testator sought to revoke the Old Will and alter the distribution contemplated therein by executing the New Will. To that end, he sought the legal assistance of Cheo.

  16. Correspondence prior to execution of the New Will

  17. [10] Cheo’s evidence is that, sometime in April 2006, the Testator made first contact with him via a telephone call. During this telephone call, the Testator and Cheo arranged for a face-to-face meeting at the office of Citibank Singapore (“Citibank”) along Church Street to discuss the terms of the New Will.

  18. [11] At the meeting in Citibank’s office, the Testator, who was accompanied by AEL, told Cheo that the New Will was to provide for the distribution of his assets in Singapore which consisted solely of monies in accounts with Citibank. Importantly, it is common ground between the parties that the Testator had also given a notarised copy of the Old Will to Cheo to aid in the latter’s drafting of the New Will.

  19. [12] Subsequently, on 13 April 2006, Cheo sent the Testator and AEL a draft copy of the New Will by facsimile and email respectively. Minor amendments were made and the execution of the New Will was then arranged to take place at Citibank’s office on 17 April 2006. According to Cheo’s account, this arrangement to execute the New Will was made during a telephone discussion which he had with AEL on 15 April 2006. Cheo stated that AEL first asked if both she and Cheo could be witnesses to the execution of the New Will. Cheo agreed to be a witness himself but advised AEL that she could not be a second witness as she was a beneficiary under the New Will. It was significant, according to Cheo, that AEL then proposed, either of her own initiative or on instructions from the Testator, that the Testator would procure one of the Citibank officers to be the other witness to the New Will’s execution.

  20. Execution of the New Will and its contents

  21. [13] On 17 April 2006, the Testator, again accompanied by AEL, met Cheo at Citibank’s office as arranged. It is undisputed that the execution of the New Will was then solely witnessed by Cheo. Thereafter, Cheo rendered the Testator an invoice for professional fees and disbursements amounting to a total of $340 which the Testator duly paid.

  22. [14] I pause at this juncture to mention two points regarding the contents of the New Will. First, the New Will, as drafted by Cheo, appointed both AEL and AEN as the “sole [t]rustees” of the Testator’s estate. No executors have been explicitly appointed as such. Second, the New Will provides that, upon the Testator’s death, his estate is to be distributed in the following manner: 20% each to the 1st to 3rd plaintiffs, 10% to [S], and 30% to be distributed equally among all his grandchildren. Essentially, the difference between this distribution and that under the Old Will (at [8] above) is that the Testator intended to completely disinherit two of his sons, namely [M] and [D], of their 10% shares in his estate while, at the same time, increasing the shares of each of his two daughters by 10%. The shares of [S], AEN and the Testator’s grandchildren remain unaffected. I summarise these differences in distribution in a tabular form here:

  23. Correspondence subsequent to execution of the New Will

  24. [15] After the New Will was executed, Cheo did not have any further direct communication with the Testator. However, he did inform AEL by email two days later that he had notified the relevant authorities about the New Will’s execution and that she should convey this to her father. This was the final correspondence between AEL and Cheo until after the Testator’s death.

  25. Death of the Testator

  26. [16] The Testator died some four years later on 24 November 2010 and AEL communicated this news to Cheo on 2 December 2010.

  27. The rejected application for letters of probate

  28. [17] Cheo advised AEL that an application would have to be made for letters of probate on the New Will and such application was subsequently filed on 22 March 2011. However, the application was rejected as the New Will had been executed before only one witness, viz, Cheo himself. This did not comply with s 6(2) of the Wills Act which prescribes that, to be valid, a will must be executed before two or more witnesses present at the same time.

  29. [18] Cheo duly informed AEL of the rejected application on 5 May 2011 before advising her on her options. This included applying for letters of administration and Cheo subsequently set out the necessary steps for such an application in his email of 9 May 2011. In particular, one of the steps which Cheo included in his advice was that an affidavit of foreign law by Indonesian solicitors was required for a variety of reasons. The plaintiffs claim that, acting upon this advice, AEN then engaged an Indonesian law firm, Messrs Sura & Kantor Hukum Associates (“the Indonesian Firm”), which charged a total of 50m rupiah for its services.

  30. The successful application for letters of administration

  31. [19] Cheo’s evidence is that he ceased acting for AEL and AEN on or around 20 May 2011 as they had gone on to engage a new solicitor for the application of letters of administration. The new solicitor in question is one Siaw Kheng Boon (“Siaw”) who testified under subpoena that he had applied for letters of administration since the New Will was invalid. Subsequently, this application was granted by the High Court of Singapore on 7 September 2011 in Originating Summons Probate No P265 of 2011/X.

  32. Distribution of the Testator’s estate

  33. [20] The Testator’s estate in Singapore, comprising solely of monies in his Citibank accounts, totalled AUD$1,798,888.12 at his death. According to the plaintiffs, this entire sum has since been withdrawn and distributed in accordance with the ISA. Accordingly, the Testator’s children have each received an equal one-sixth share or, in percentage terms, 16.67% of the Testator’s estate. The Testator’s grandchildren, on the other hand, received nothing from the intestate distribution. The result of this distribution is that, when compared to the terms of the New Will, [M], [D] and [S] (collectively “the Unintended Beneficiaries”) experience a windfall, whereas their plaintiff siblings (ie, the 1st to 3rd plaintiffs) and the Testator’s grandchildren (ie, the 4th to 18th plaintiffs) suffer loss of varying degrees which total 39.99% of the Testator’s estate. This is reflected in the table below:

  34. [21] The plaintiffs’ claim for the loss of 39.99% of the Testator’s estate amounts to AUD$719,375.36.

  35. The parties’ cases

  36. [22] At this juncture, it is appropriate to set out the parties’ respective cases in sufficient detail so as to identify the issues that have to be contended with.

  37. The plaintiffs’ case

  38. [23] The plaintiffs’ case lies exclusively in the tort of negligence. It begins with the claim that Cheo owes them a duty of care supervising the New Will’s execution. In this regard, the plaintiffs urge me to follow various other jurisdictions which have recognised that a solicitor who is responsible for preparing a will does owe a duty to the beneficiaries to take reasonable care in discharging his duties towards the testator client.

  39. [24] Next, the plaintiffs submit that this duty has clearly been breached here since the New Will was not executed before two or more witnesses as required under the Wills Act. Alternatively, the plaintiffs allege that Cheo has also breached this duty by drafting the New Will without explicitly appointing AEL and AEN as executors but naming them as “trustees” instead. These breaches, it is claimed, has caused the plaintiffs their loss of 39.99% of the Testator’s estate.

  40. [25] Finally, the plaintiffs also seek reimbursement of the sum of 50m rupiah since it would have been unnecessary to engage the Indonesian Firm had the New Will been validly executed in the first place.

  41. The defendants’ case

  42. [26] The defendants dispute the plaintiffs’ claim on two main grounds.

  43. [27] First, the defendants deny that Cheo’s retainer with the Testator extends to ensuring the proper execution of the New Will. Cheo claims that he had been engaged only to assist in drafting the New Will. In any event, the defendants argue that Cheo should be recognised as owing a duty of care only to the Testator with whom he had a retainer but not to the plaintiffs who stand as third parties to that solicitor-client relationship. The defendants acknowledge that they are advocating a contrary position to what other jurisdictions have preferred but stress that those decisions have now to be analysed within the two-stage framework for approaching the duty question as formulated by the Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (“Spandeck”). In that regard, it is submitted that no proximity subsists between Cheo and the plaintiffs since Cheo dealt only with the Testator and not the plaintiffs. Moreover, pertinent policy considerations as suitably exemplified by this case also negates a prima facie duty even if it does arise.

  44. [28] Second, the defendants submit that the New Will’s invalidity does not inexorably mean that the Testator’s estate then has to be distributed in strict accordance with the rules of intestacy. The plaintiffs can come to an agreement amongst themselves to distribute the Testator’s estate according to the New Will despite the intervention of intestate law. In that event, no loss will be suffered. Alternatively, the plaintiffs can avoid the operation of intestacy altogether by admitting into probate a copy of the Old Will which the plaintiffs are themselves able to produce in these proceedings. In that event, the plaintiffs’ loss will only be a fraction of the sum that is claimed in this action.

  45. [29] As for the further claim of 50m rupiah, the defendants deny liability for this alleged loss.

  46. Issues

  47. [30] It is trite that a claimant can succeed in a negligence action only if he is able to establish that (a) the defendant owes him a duty of care; (b) the defendant has breached that duty; and (c) such breach has caused loss which is not too remote. In the present case, there are issues which emerge for my consideration under each of these elements of the tort as is clear from the parties’ respective submissions. These issues may be categorised as follows:

  48. (a) Duty of care: Whether Cheo’s retainer with the Testator extends to ensuring the proper execution of the New Will and, if so, whether Cheo owes a duty to the plaintiffs to take reasonable care in supervising such execution.

  49. (b) Breach: Whether Cheo has breached this duty by allowing the New Will to be executed in the presence of only one witness and/or by drafting it without explicitly appointing executors.

  50. (c) Causation: Whether the plaintiffs’ loss is caused by their own failure to distribute the Testator’s estate according to the New Will or the Old Will.

  51. (d) Loss: Whether the plaintiffs can claim for the loss of 50m rupiah incurred in hiring the Indonesian Firm.

  52. [31] I propose to deal with these issues in turn.

  53. Duty of care

  54. The scope of the duty of care

  55. The scope of the duty must be determined by reference to the scope of Cheo’s retainer with the Testator

  56. [32] Before considering the legal question whether Cheo owes a duty of care to the plaintiffs, the precise scope of that duty must first be delineated as a matter of fact. On this latter point, both parties here proceed on the basis that reference must be had to the scope of Cheo’s retainer with the Testator. In other words, the parties impliedly agree that Cheo cannot be made liable towards the plaintiffs for the negligent performance of certain tasks if Cheo had not been engaged by the Testator to perform those tasks in the first place.

  57. [33] I begin by noting that such an approach towards defining the possible duty of care which a solicitor owes to a third party has been described by the Court of Appeal as making “eminent sense” in the recent decision of Anwar Patrick Adrian and another v Ng Chong & Hue LLC and another [2014] SGCA 34 (“Anwar”). This appears from the following passage of Anwar where Andrew Phang Boon Leong JA, delivering the judgment of the court, stated as follows (at [119]):

  58. [34] Anwar is significant not only for the above observation but also for several others which, as will become apparent, greatly inform the duty of care analysis which is undertaken below. I will therefore revert to Anwar in much greater detail in due course. However, I take the opportunity at this point to mention that Anwar was released only after the parties had tendered their closing submissions and replies. Arguments relating to the impact of Anwar on the present case were thus not canvassed before me, but I do not see a need to request for further submissions to assist me on this point.

  59. The scope of the duty extends to the proper execution of the New Will

  60. [35] While the parties agree that the scope of Cheo’s duty to the plaintiffs is coterminous with the scope of Cheo’s retainer with the Testator, they diverge in their arguments as to what precisely Cheo had been engaged to perform. In this connection, the plaintiffs argue that Cheo was engaged to draft and execute the New Will whereas the defendants assert that Cheo was engaged only to draft the New Will. If the defendants’ assertion is correct, then they will escape liability for the defective execution which occurred here.

  61. [36] I am not convinced by the defendants as their assertion does not seem to accord with one’s ordinary conceptions of the solicitor-client relationship in the context of will-making. To my mind, when a layperson engages a solicitor for the purpose of preparing a will, his foremost concern is on the end-product—a will that properly records down his or her testamentary intentions and which is fully valid in the eyes of the law—rather than on the precise tasks which the solicitor has to perform to achieve that end. Though the testator client may be able to appreciate that the solicitor performs a series of discrete tasks in respect of the will’s preparation—eg, conducting meetings with the client, understanding fully the client’s instructions, advising the client on the implications of making the will, examining relevant documents, drafting the will, checking with the client if the contents of the will as drafted accords with the client’s testamentary intentions, and finally executing the will—the client’s central concern with the end-product means that he is not likely to view all these various aspects of the solicitor’s work as distinct but, rather, as constituting a bundle of services, the holistic discharge of which is necessary for proper and effective will-making. That, however, is not to say that it is impossible for a testator to instruct the solicitor to discharge only certain specific obligations. After all, the scope of a solicitor’s duty to his client will vary from one factual matrix to another (see Anwar at [127]). All that I intend to convey is that a scenario whereby the solicitor is only engaged to draft a will but not see to its valid execution does not appear to be one that will often occur in light of the realities of will-making that I have just described.

  62. [37] Even if the general view which I have just expressed is mistaken, I am nevertheless convinced by several salient facts in the present case which sufficiently bear out that Cheo had been engaged to assist not only in drafting the New Will but also in ensuring its proper execution.

  63. [38] First, Cheo confirms on cross-examination that he had rendered an invoice of $340 to the Testator only after witnessing the execution of the New Will and, further, that this amount was charged for all work done up to that point. This is a clear indication to me that Cheo was, and indeed understood himself to be, retained by the Testator not only to draft the New Will but also to ensure that it was properly executed. Otherwise, there would have been no need for Cheo to attend the execution of the New Will and seek payment only after this had occurred.

  64. [39] Second, I also find the contents of the invoice rendered by Cheo to be helpful in revealing the scope of his retainer with the Testator. In particular, the invoice states that the first defendant’s professional charges in respect of the Testator’s matter included, inter alia, “attendances” and “all incidental work necessary for carrying out the business entrusted to us”. It is conceded by Cheo during cross-examination that these terms as they appear in the invoice include the witnessing and execution of the New Will.

  65. [40] Third, I also note that after the execution of the New Will, Cheo proceeded to notify the relevant authorities about this despite not having received any instructions from the Testator to do so. He took this further step of his own initiative. Cheo explains that this is “normally” done “as part of the service … when someone makes a will”. This explanation given by Cheo suggests that he himself is of the view that there is nothing exceptional in his engagement by the Testator and that he thus set out to discharge the normal suite of services which are provided to will-making clients. As I have sought to explain, such services are not ordinarily confined only to the drafting of a will and, indeed, Cheo’s attendance during the New Will’s execution and subsequent notification of the relevant authorities support this view. Cheo’s claim that he had been instructed only in respect of the drafting of the New Will is therefore contradicted by his own acts and explanations.

  66. [41] In light of the above, I find that Cheo’s retainer with the Testator includes the proper drafting and execution of the New Will.

  67. The imposition of the duty of care

  68. [42] Having determined the precise scope of Cheo’s retainer, I now consider whether it is justified as a matter of law to impose a duty of care in drafting and executing the New Will which is owed not only to the Testator but also to the plaintiffs, as third parties and beneficiaries under the New Will. Once again, the parties are agreed on the proper approach towards determining this latter issue. There is rightly no dispute that an analysis of whether such a duty of care should be imposed must be conducted within the two-stage framework set out in Spandeck. This approach proceeds first with an inquiry into proximity and then calls for a consideration of relevant policy considerations. As a threshold matter, though, both stages are preceded by an assessment of factual foreseeability (see Spandeck at [73]).

  69. Factual foreseeability

  70. [43] In my view, the threshold of factual foreseeability is easily overcome in the present case. Cheo is engaged for the proper drafting and execution of the New Will. The New Will is the instrument used by the Testator to bequeath his assets in Singapore to the plaintiffs. If this instrument is invalid and measures can no longer be taken to rectify it, then, it is clear that the bequests will fail, thereby resulting in financial loss to the plaintiffs. The Court of Appeal’s following observation in Anwar (at [142]) is most apposite:

  71. [44] In my judgment, therefore, it is clearly unarguable that a reasonable solicitor in Cheo’s position will have foreseen the possibility of loss being suffered by the plaintiffs due to the negligent discharge of his undertaking to the Testator.

  72. Proximity

  73. [45] My attention now turns to the nub of the dispute in the present case, which is whether sufficient proximity exists between Cheo and the plaintiffs such as to give rise to a prima facie duty of care under the first stage of Spandeck. In this respect, the plaintiffs place much reliance, among other authorities, on the seminal English case of White and another v Jones and another [1995] 2 AC 207 (“White (HL)”) where it was held that a solicitor did owe a duty of care towards the disappointed beneficiaries of a will. The defendants, however, contend that the outcome in White (HL) should not be followed as the reasoning adopted there cannot be accommodated within the Spandeck two-stage framework. As the decision in White (HL) has since been the subject of thorough scrutiny by the Court of Appeal in Anwar, the parties’ submissions must, accordingly, be dealt with in light of this new judicial development.

  74. [46] Despite the unquestionable importance of Anwar, I defer my discussion on it to a later part of this judgment as I consider it beneficial to first set out the decision in White (HL) and the parties’ respective submissions in greater detail. This will, I hope, allow for a better appreciation of how the Court of Appeal’s observations in Anwar impact upon the current dispute.

  75. (1) The House of Lords’ decision in White v Jones

  76. [47] The facts in White (HL) do not, like the present case, involve the defective execution of a will. Rather, White (HL) concerned the dilatory implementation of a testator’s instructions in drawing up a will. Nothing, however, turns upon this factual distinction. In both cases, the intentions of the testator client were not carried into effect because of some fault on the part of solicitors whose assistance was engaged for that purpose. And, in both cases, the disappointed beneficiaries claimed that they suffered loss which resulted in a negligence action being brought against the solicitor to recover the same.

  77. [48] In White (HL), a testator made a will disinheriting two of his daughters after a family quarrel. Subsequently, he reconciled with them and instructed the defendant solicitors to prepare a new will under which each daughter would be bequeathed £9,000. The defendants, however, delayed carrying out the testator’s instructions and the testator subsequently died without the new will being made. The unrevoked old will thus governed the distribution of the testator’s estate and his two daughters received nothing. The two daughters, accordingly, sued the defendant solicitors to recover the total loss of £18,000. The House of Lords held by a bare majority of 3 to 2 that the defendants did owe a duty of care to the disappointed beneficiaries and allowed recovery of the total loss claimed.

  78. [49] Lord Goff of Chieveley, who delivered the leading majority judgment, encountered no little difficulty in reaching the conclusion that a duty of care did exist. He noted (at 257A and 261B–C) that the case at hand involved a claim for pure economic loss which was generally not recoverable unless there was shown to be an assumption of responsibility by the defendant and, concomitantly, reliance by the claimant, twin principles which were embraced in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] 1 AC 465 (“Hedley Byrne”) in the context of establishing liability for negligent misstatements. Lord Goff thus disagreed with Sir Robert Megarry VC who—though similarly finding in the earlier case of Ross v Caunters [1980] 1 Ch 297 (“Ross”) that a duty of care was owed by a solicitor to a disappointed beneficiary under a defective will—had reached that destination via a different route. In Ross, Megarry VC preferred to base his finding of a duty of care on a direct application of the test for physical loss established by Lord Atkin in M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (“Donoghue v Stevenson”), concluding (at 322H–323A) that liability may be imposed upon a solicitor based upon the mere foreseeability of harm to a beneficiary that might result from his negligence. That, however, was described by Lord Goff in White (HL) to be an insufficient control mechanism for imposing liability (at 257E–F; see also Anwar at [67] and [74]).

  79. [50] Although Lord Goff was clear in his mind that the relevant principles to be applied in White (HL) emanated from Hedley Byrne rather than Donoghue v Stevenson, the problem is, as the Court of Appeal noted in Anwar (at [70]), that Hedley Byrne is “not directly engaged on the facts”. This is because it bordered on artificiality to assert that a solicitor had assumed responsibility towards beneficiaries with whom he ordinarily would have had no direct contact or, conversely, to claim that those same beneficiaries had relied upon the proper discharge of professional obligations by a solicitor whom they ordinarily would have no knowledge of (see White (HL) at 262B–D).

  80. [51] However, notwithstanding Lord Goff’s recognition that the factual matrix before him stood beyond the reach of the principles in Hedley Byrne, he was unwilling to leave the two daughters in that case without a meaningful remedy. He was influenced by what he perceived to be a “lacuna” in the law which he succinctly described thus (at 259H–260A):

  81. [52] This “lacuna” in the law was considered together with other wider considerations, such as the significance of legacies to citizens and the role of solicitors in society, to give rise to what Lord Goff described (at 260B–G) as the “strong impulse for practical justice”. This impulse for practical justice loomed large in Lord Goff’s judgment and it appeared, ultimately, to drive him to “fashion” (at 260G) a remedy in tort for the disappointed beneficiaries. This remedy was devised through an “extension” of the Hedley Byrne principles in this way (at 268D):

  82. (2) The parties’ submissions regarding White (HL)

  83. [53] The plaintiffs in the present case naturally urge me to endorse the decision in White (HL). They point to the justice of the outcome reached there and also emphasise a passage in Lord Goff’s judgment (at 255A–E) where the weight of authority across various common and civil law jurisdictions—eg, New Zealand, Canada, the United States of America, Germany, France and the Netherlands—was surveyed and found to show a clear trend towards the imposition of liability on solicitors in similar circumstances. In fact, to that list of jurisdictions may now be added Australia as the High Court there has since ruled in favour of imposing liability on solicitors in the important case of Hill (trading as R F Hill & Associates) v Van Erp (1997) 142 ALR 687 (“Van Erp”) which will be discussed below (see [87]–[89]).

  84. [54] However, as alluded to earlier (at [45] above), the defendants urge me to look beyond simply the outcome in White (HL) and to inspect its reasoning. The defendants submit that, in this regard, it is clear from Lord Goff’s judgment that English law has been developed along a path carved out through the sheer force of policy imperatives. Lord Goff himself had openly struggled with the applicability of conventional principles, seemingly unable to rationalise how a solicitor (such as Cheo) could be said to stand in a sufficiently proximate relationship vis-à-vis the beneficiaries under a will (such as the plaintiffs). The crux of the defendants’ argument, therefore, is that the policy-driven approach adopted by Lord Goff sits uncomfortably with the Spandeck two-stage framework which requires the duty question in Singapore to be answered by first inquiring into whether the claimant and the alleged tortfeasor are in a sufficiently proximate relationship, and only if this is answered affirmatively can policy considerations then come into play at the second stage of the analysis for the purpose of negating a prima facie duty of care. Put simply, the defendants argue that there is good reason not to follow the trend in England and in other jurisdictions because approaching the duty question from the perspective of policy as the driver in the analysis effectively puts the cart before the horse insofar as the Spandeck test is concerned.

  85. [55] In order to preserve the integrity of Spandeck’s analytical framework, the defendants then submit that this court should refrain from turning it on its head just so that the exceptional policy-based reasoning in White (HL) can be accommodated. Proximity should take centre stage at the first stage of the inquiry and, in this regard, the defendants argue that the twin criteria of assumption of responsibility and reliance must necessarily be resorted to, this being a case involving pure economic loss. Adopting that approach, one runs into the same difficulties which Lord Goff encountered in strictly applying the Hedley Byrne principle. However, shorn of the policy reasoning which Lord Goff had availed himself of in White (HL), the defendants argue that this court is constrained to deny that there is sufficient proximity on the facts here.

  86. [56] The defendants’ submissions as set out above clearly raise interesting questions of law. I am able to distil two which, logically, flow in this manner:

  87. (a) First, whether, policy considerations may, exceptionally, drive the imposition of a duty of care under the Spandeck framework.

  88. (b) If not, then whether Lord Goff’s recognition of an “extended” assumption of responsibility for imposing liability on solicitors towards third parties in White (HL) was indeed founded solely upon considerations of policy (with the result that it cannot be accommodated under the Spandeck framework) or, alternatively, whether it can properly be rationalised as embodying notions of proximity (with the result that it can be reasoned within the Spandeck framework).

  89. [57] Both of these issues were considered to varying degrees by the Court of Appeal in Anwar and so it is timely to now turn to consider that decision.

  90. (3) The Court of Appeal’s decision in Anwar

  91. [58] Anwar did not involve a solicitor’s failure to carry into effect his client’s testamentary intentions which then resulted in a claim by disappointed beneficiaries. In that specifically defined sense, Anwar presented a different factual scenario from that which gave rise to White v Jones (HL) and this dispute. However, on a somewhat broader and more abstracted plane, Anwar is no different from these “wills cases” because the facts there also directly raise the same issues of whether, and if so when, a solicitor can be said to owe a duty to third parties to take reasonable care when discharging obligations towards his client. The discussion of these issues in Anwar is therefore directly relevant to the present dispute despite there being an observable difference in factual matrices at a more granular level. With that in mind, I proceed to set out the facts in Anwar.

  92. [59] In Anwar, one Agus had pledged certain shares with a bank as part of a credit facility but, when the stock markets crashed, the value of his collateral likewise crashed. The bank later sold off some of the pledged shares but this still left a significant shortfall. The bank thus demanded that Agus either make payment of this shortfall or provide collateral of the same value. It was at this point that Agus then approached the defendant solicitor, Ng, to act for him.

  93. [60] Negotiations subsequently took place between Ng and the bank’s solicitors, Allen & Gledhill LLP (“A&G”). The bank’s initial proposal was for Agus to procure mortgages over four properties. Two of these properties were each held by Agus’s two young sons, Adrian and Francis, who were the claimants in the dispute. The remaining two properties were held by companies of which Adrian was the sole shareholder and director. As a further aspect of the bank’s initial proposal, the respective owners of the four properties were each required to provide personal and corporate guarantees. On Agus’s instructions, Ng informed A&G that Agus was agreeable to this proposal, except for the condition that required his two sons to provide personal guarantees. In A&G’s reply, the bank agreed to put this requirement for personal guarantees on hold provided that Agus satisfied other requirements. However, he did not, and the bank proceeded to demand repayment.

  94. [61] In light of the bank’s renewed demand, Agus offered a further proposal. The bank deemed this proposal inadequate but made a counter-proposal involving the provision of additional security and which, significantly, did not require Agus’s sons to provide personal guarantees. A forbearance agreement drafted on the basis of this counter-proposal was thus sent by A&G to Ng for execution by Agus, his two sons, and the companies which owned the properties that were to be mortgaged. However, two of the relevant accompanying documents—which concerned the mortgage of the properties held personally by Agus’s two sons—contained a personal guarantee clause. This clause provided that the mortgagor of the property shall pay the bank on demand all sums due and owed to the bank by Agus.

  95. [62] Ng did not advise Agus or his sons on the presence and implication of the personal guarantee clause before the relevant documents were signed by them. It was Ng’s failure to do so which formed the subject of the negligence action by Agus’s sons against him in Anwar. This action was brought because Agus was still not able to meet his obligations to the bank even after the provision of additional security and his two sons, who were sued on the personal guarantee clause, had to settle the claim against them for $1m.

  96. [63] The claim against Ng by Agus’s two sons proceeded both in contract and in tort. First, they argued that there was, in contract, an implied retainer between themselves and Ng which was breached by Ng’s failure to advise them on the personal guarantee clause. Second, they argued that Ng owed them a duty of care in tort and that his conduct was in breach of that duty. Both arguments failed at first instance in the High Court (see Anwar Patrick Adrian and another v Ng Chong & Hue LLC and another [2013] SGHC 202 at [12]).

  97. [64] The appeal by Agus’s sons, however, was allowed. The Court of Appeal first considered the contractual argument and observed (at [51]–[61]) that even though Ng had not directly advised Agus’s sons, the circumstances were such that it was fair to hold that an implied retainer had arisen between them. The Court of Appeal therefore allowed the appeal on the basis that this implied retainer had been breached but, recognising (at [61]) that the alternative argument in tort presented “novel and intricate issues of law in the Singapore context”, the court went on to consider “what the situation would be if there had been no implied retainer”. In particular, the key issue framed there (at [64]) was “whether there can be a duty of care in tort owing by Ng to the Appellants that is independent of any implied retainer” [original emphasis].

  98. [65] It is the Court of Appeal’s observations in this latter context that is of immediate relevance to the present case which is similarly concerned with whether a solicitor (Cheo) can owe a duty of care to third parties (the plaintiffs) in the absence of an underlying contractual relationship. Ultimately, the Court of Appeal held in Anwar that such a duty can be owed. However, it is manner by which the court arrived at this pronouncement which is most illuminating. The Court of Appeal in its detailed analysis of White (HL) was able to rationalise Lord Goff’s decision within the first-stage of the Spandeck framework, and went on to elucidate the proximity factors which are relevant in assessing the relationship between solicitors and third parties. In so doing, the Court of Appeal squarely considered the questions of law raised by the defendants’ submissions here. What follows, therefore, is a point-by-point identification of the salient observations made by the Court of Appeal in Anwar and a discussion of how these observations relate to the present case.

  99. (4) The Court of Appeal’s observations in Anwar

  100. (A) IT IS INADVISABLE FOR POLICY TO DRIVE THE ANALYSIS IN SPANDECK

  101. [66] As outlined above (at [56]), the first question which the defendants’ submissions raised is whether the Spandeck framework is malleable enough to allow policy considerations to drive the duty analysis even though it ordinarily belongs at the second stage of the inquiry. To this, the Court of Appeal specifically stated in Anwar (at [92]) that “it is inadvisable (given its very nature) to focus on policy in the first instance, although it still has a role to play under the second stage of the two-stage test in Spandeck” [emphasis added]. This led the Court of Appeal to comment that, even though the suggestion that White (HL) was a policy-based decision is “very interesting and not without force”, it is preferable to rationalise that decision “along rather more conventional reasoning which focuses on the first stage of [Spandeck] instead (relating to proximity …)” [emphasis original].

  102. [67] I focus, for the moment, on the Court of Appeal’s first observation, viz, that policy ought not to be the immediate focus in the Spandeck inquiry. I leave till later the question of how the Court of Appeal was able to rationalise White (HL) as a decision based on the principles of proximity.

  103. [68] In my view, the Court of Appeal’s caution that it is “inadvisable” to treat policy as the focal point in the Spandeck inquiry is sound. In this regard, the court had parenthetically suggested that the “very nature” of policy made it unsuitable for this purpose. While the court did not elaborate on what it was alluding to, I note, nevertheless, that there is a clear statement in Spandeck itself (at [84]) which explicates the main deficiency with policy-driven reasoning thus: “[T]he obvious objection to utilising policy as the overarching determinant of liability is its potential to result in arbitrary decisions” [emphasis added].

  104. [69] The manifold reasons why policy-driven reasoning conduces towards arbitrariness have been canvassed by Christian Witting in his insightful article “Duty of Care: An Analytical Approach” (2005) 25(1) Oxford J Legal Studies 33. Witting therefore argues for the “priority of proximity” over policy in determining duty, the thrust of which is evident in the following passage (at p 62):

  105. [70] The Spandeck formulation should thus be applied sequentially in the order it is set out, ie, “proximity” before “policy”. The next question which follows from the defendants’ submissions, then, is whether White (HL) is truly a policy-based decision. If so, it is incompatible with the Spandeck approach as just clarified and thus cannot aid the plaintiffs’ case.

  106. (B) WHITE (HL) CAN BE RATIONALISED ON THE BASIS OF PROXIMITY RATHER THAN POLICY

  107. [71] As briefly alluded to above (at [65] and [67]), the Court of Appeal in Anwar had suggested that White (HL) could be rationalised as a decision which was focused on principles of proximity, notwithstanding the persuasive view that policy considerations were in fact predominant in Lord Goff’s judgment.

  108. [72] The Court of Appeal commented in Anwar (at [91]) that Lord Goff’s decision to “extend” the Hedley Byrne principle of assumption of responsibility simply because this was necessitated by the need to do practical justice was not satisfactory. This, it was said (at [89]), “ignored” the conceptual difficulties with accepting that there was any direct assumption of responsibility or reliance between the solicitor and third party respectively. It did not explain how, as Lord Goff seemed to suggest, a solicitor’s assumption of responsibility towards his client could somehow be “transferred” to the third party.

  109. [73] I note that this criticism of White (HL) is shared by several commentators. Russell Brown, for example, comments in Pure Economic Loss in Canadian Negligence Law (LexisNexis, 2011) (at p 436) that Lord Goff’s extension without explanation constitutes a “deeming” and is thus no more than a “fiction” (see also, Robert Stevens, Torts and Rights (Oxford University Press, 2007) at p 179; and Peter Cane, Tort Law and Economic Interests (Clarendon Press, 2nd Ed, 1996) at p 185). As Brown writes:

  110. [74] The Court of Appeal in Anwar thus attempted to supply Lord Goff’s “extension” in White (HL) with the necessary explanatory force. In this regard, the Court of Appeal first accepted (at [89] and [159]) that a solicitor could not ordinarily be said to have assumed responsibility in a “direct or conventional” sense towards the third party given the conceptual difficulties surrounding this. The Hedley Byrne assumption of responsibility thus remains applicable as a legal test only for assessing the relationship between the solicitor and his client. It cannot, at the same time, serve, by way of an unexplained extension, as a legal test in and of itself for imposing a duty of care on solicitors vis-a-vis third parties (at [160] and [190]).

  111. [75] The fact that a solicitor had assumed responsibility towards his client was, nevertheless, observed by the Court of Appeal to be significant in shedding light on the closeness of the relationship between the solicitor and the relevant third party in appropriate circumstances. As the Court of Appeal described (at [155]), the solicitor’s direct assumption of responsibility towards the client to perform the latter’s instructions which are aimed at conferring a benefit or negating a detriment to a third party “sets the stage and creates the environment necessary” for there to be sufficient proximity with the third party. In this way, Lord Goff’s “extended” assumption of responsibility can thus be rationalised as a relevant factor (though not a legal test) for determining whether there is sufficient proximity between the solicitor and the third party. To sum up, I reproduce the Court of Appeal’s view on this matter which was stated as follows (at [161]):

  112. [76] It is therefore clear from Anwar that White (HL) should not be understood simply as a policy-driven decision despite it outwardly appearing to be so. Lord Goff’s notion of an “extended” assumption of responsibility in fact embeds proximity reasoning, hinting as it does at the closeness of the relationship between the solicitor and the third party.

  113. (C) ASSUMPTION OF RESPONSIBILITY WAS NOT THE MAIN BASIS FOR IMPOSING LIABILITY IN ANWAR

  114. [77] However, because the assumption of responsibility by a solicitor is not directly towards the third party, the Court of Appeal in Anwar preferred to regard this merely as a factor which buttressed its finding of proximity that was in fact based on other grounds. Specifically, the Court of Appeal relied (at [147]–[150]) on the two concepts of relational or circumstantial proximity and causal proximity to establish proximity on the facts in Anwar.

  115. [78] Regarding the first concept of relational or circumstantial proximity, the Court of Appeal noted that Agus’s instructions to his solicitor, Ng, were to ensure that the interests of his two sons were taken care of under the mortgage transaction and that this third party benefit could only be effected through Ng’s careful discharge of his duties to Agus. The Court of Appeal thus stated (at [147]–[148]) that it was “the nature of the instructions” from Agus that had brought Ng into a direct and close relationship with the third parties, as did Ng’s “particular knowledge of the state of affairs at play”.

  116. [79] As for the alternative concept which was relied on, the Court of Appeal pointed out (at [149]) that Ng was clearly in a position where his advice (or lack thereof) to Agus would have had “inevitable knock-on effects” on the interests of the third party claimants; hence causal proximity was established.

  117. [80] Besides the presence of relational or circumstantial proximity and causal proximity—which was considered to be “independently” capable of founding a duty of care in Anwar (at [150])—the Court of Appeal also referenced the concepts of “control” and “vulnerability” to further support its view that the relationship between Ng and Agus’s sons was sufficiently proximate. The judicial application and refinement of these concepts in varying tort scenarios can be found more fully elaborated upon by David Tan and Goh Yihan in their article “The Promise of Universality: The Spandeck Formulation Half a Decade On” (2013) 25 SAcLJ 510 (“Tan & Goh”). In the specific context of Anwar, though, the Court of Appeal had little difficulty in finding (at [154]) that Ng, having overall charge of Agus’s affairs with the bank, clearly had the “capacity … to control the situation that might give rise to the risk of harm” to Agus’s sons. Agus’s sons, in turn, were “relatively vulnerable” in that they “depended” on Ng to properly perform his duties towards Agus, in particular by advising the latter on the existence and implication of the personal guarantee clause.

  118. [81] The various indicia of “proximity” which were relied on by the Court of Appeal in Anwar will certainly be useful in my analysis here since, as I have earlier explained (at [58] above), there is no significant difference between the two fact patterns.

  119. (5) The plaintiffs and Cheo are in a sufficiently proximate relationship

  120. [82] I find that the plaintiffs and Cheo stand in a sufficiently proximate relationship.

  121. [83] Cheo had no doubt assumed responsibility towards the Testator for the proper drafting and execution of the New Will since a contractual relationship subsisted between solicitor and client. That there was an assumption of responsibility in this direct sense, albeit not with the plaintiffs, cannot be clearer. However, the very objective of Cheo’s retainer with the Testator is to enable the latter to confer a benefit on the plaintiffs through the transmission of property under a valid will. Cheo’s assumption of responsibility towards the Testator to assist in the making of the New Will thus creates, as the Court of Appeal stated in Anwar, the “foundation for proximity” between him and the plaintiffs. Indeed, I go on to find that proximity does exist here based on the following considerations.

  122. [84] First, I find that there is relational or circumstantial proximity between the plaintiffs and Cheo. This is not merely because of the nature of the Testator’s instructions but also because Cheo knew full well at that time that if those instructions were not properly carried out, the economic well-being of the plaintiffs would be adversely affected. The plaintiffs are therefore clearly in Cheo’s direct contemplation even though he has no direct interaction with them (save for AEL). In this connection, I note that Megarry VC has also stated in Ross (at 308F–H) that the question of whether a negligent solicitor “ought” to have had the disappointed beneficiaries in his contemplation does not even arise in cases such as this. This is because the solicitor’s contemplation of the beneficiaries is of such a close and immediate nature; it is “contemplation by contract” [emphasis added] though that contract was with the testator client. Therefore, it is this degree of knowledge which Cheo has of the plaintiffs and the surrounding circumstances which leaves me in no doubt that there is relational or circumstantial proximity between the parties.

  123. [85] I also find that there is causal proximity between Cheo and the plaintiffs. The plaintiffs’ entitlement to the Testator’s estate, in the shares which the Testator intended for them to receive, is wholly dependent on the New Will being effective. That task of making an effective will, in turn, was entrusted by the Testator to Cheo. It must thus have been plain to Cheo that if the New Will was defective, then that will lead inevitably, upon the death of the Testator, to economic loss suffered by the plaintiffs. Accordingly, causal proximity between the plaintiffs and Cheo is clearly evident.

  124. [86] Given the presence of circumstantial or relational proximity and causal proximity, I am able to conclude that Cheo does stand in a sufficiently proximate relationship with the plaintiffs. However, as with the Court of Appeal in Anwar, I also find that the further proximity factors of “control” and “vulnerability” are particularly relevant on the facts here and thus merit further discussion.

  125. [87] To begin with, I note that the proximity factors of “control” and “vulnerability” have already been considered by the High Court of Australia in the context of a claim by disappointed beneficiaries against a negligent solicitor. In Van Erp, the defendant solicitor, Mrs Hill, had been instructed by a testatrix to draw up a will which was intended to benefit her neighbour, Mrs Van Erp. During the execution of the will, the solicitor signed as one attesting witness and asked Mrs Van Erp’s husband, who was the only other person present, to sign as the second attesting witness. Under the relevant Australian legislation, a will cannot be attested to by the spouse of an intended beneficiary and, for that reason, the testatrix’s will was void. Mrs Van Erp sued the solicitor in tort and, by a majority of 5 to 1, the High Court of Australia held that the solicitor was liable.

  126. [88] The notion of a will-making solicitor’s “control” over a beneficiary’s entitlement featured strongly in Gaudron J’s judgment and in fact formed the basis upon which she justified the imposition of liability. Gaudron J explained the importance of “control” in the following terms (at 716):

  127. [89] The element of control is usually considered together with “vulnerability” (Tan & Goh at para 34) and this will ordinarily be the position in which a beneficiary finds himself vis-à-vis the solicitor who has been engaged to prepare the testator’s will. The reason for this was explained by Dawson J in Van Erp (at 706–707):

  128. [90] The concepts of “control” and “vulnerability” as discussed in Van Erp certainly do add a further dimension from which the parties’ present relationship may be evaluated. In that vein, I note that, as the solicitor responsible for preparing the New Will, Cheo is in complete control over whether the plaintiffs do or do not receive their respective shares in the Testator’s estate. This, in turn, means that the plaintiffs are wholly and inescapably dependent on Cheo’s proper discharge of his obligations to the Testator to receive their respective entitlements. In my view, the presence of “control” on the part of Cheo and “vulnerability” on the part of the plaintiffs serve to increase and strengthen the links between them. This buttresses my earlier finding that there is sufficient proximity in the present case.

  129. Policy

  130. [91] At the second stage of the Spandeck formulation, the defendants submit that strong policy reasons exist which ought to negate the imposition of a duty of care. In particular, the defendants seek to impress upon me that allowing the plaintiffs’ claim here effectively enlarges the Testator’s estate. This is because even as the plaintiffs are now given what they ought to have received under the New Will, the Unintended Beneficiaries, viz, [M], [D] and [S] (see [20] above) will not be stripped of their windfall gains. The defendants therefore urge me to consider that awarding the plaintiffs damages here sends out the wrong signal to families which may possibly find themselves in similar circumstances in the future. Instead of encouraging such families to attempt a good faith redistribution of the deceased’s estate according to the deceased’s wishes, it incentivises them to sue the careless solicitor who, being backed by insurance, can always be made the source of a second fund. That, the defendants argue, will be an unseemly prospect for society as a whole, and one which the courts should be keen to avoid rather than endorse.

  131. [92] I am not persuaded by the defendants’ argument. As a preliminary matter, I cannot comprehend the defendants’ claimed connection between a successful action for damages here and an “enlargement” of the Testator’s estate. In this regard, I share the views of Sir Donald Nicholls VC who (then sitting in the English Court of Appeal) stated the following when confronted with a similar argument in White and another v Jones and others [1993] 3 All ER 481 (“White (CA)”) (at 491) (see also, John G Fleming, “The Solicitor and the Disappointed Beneficiary” (1993) 109 LQR 344 at 348):

  132. [93] I am also unable to agree with the defendants’ submission on a more fundamental point, which is that if the negligent solicitor is allowed to escape liability on the basis that the deceased’s family should independently devise a means for redistributing his estate inter se, then it begs the question—what is the point of the solicitor at all? Here, Cheo is engaged to enable the Testator to direct his Singapore assets to the plaintiffs. However, through Cheo’s negligence, a part of those assets has been misdirected to the Unintended Beneficiaries. Cheo now argues, however, that no liability ought to be imposed on him because the plaintiffs and the Unintended Beneficiaries can and should take the initiative (because of filial piety, familial ties or otherwise) to remedy the consequences of his own wrong by conducting a secondary distribution that honours the Testator’s true intentions. In the event that they are unable to come to an agreement, the loss is the plaintiffs to bear.

  133. [94] That, to me, is a preposterous outcome. It implies, as Cooke J observed in Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (“Gartside”) (at 43), “a refusal to acknowledge the solicitor’s professional role in the community” (see also White (HL) at 260F). The defendants’ denial of liability here is, in essence, premised on an abdication of professional responsibility, and that I cannot accept to be right.

  134. [95] As a separate matter, I also note that the proposed imposition of liability here occurs in a novel area involving economic loss. I am thus minded to consider whether such a result may lead, as Cardozo CJ said in Ultramares Corp v Touche, Niven & Co 255 NY 170 (1931) at 179, to the imposition of “liability in an indeterminate amount for an indeterminate time to an indeterminate class”. In my view, this perennial fear in the law of negligence is more apparent than real when a claim is brought by disappointed beneficiaries under a defective will. This is because, in general, the class of potential claimants is identified within the terms of the will, the solicitor’s potential liability is limited by the size of the testator’s estate, and the breach results in a one-off loss rather than a recurring one. I acknowledge, however, that there may be exceptional circumstances where the foregoing might not necessarily hold true; for example, the beneficiaries of a will may include unborn persons who are thus not specifically identified in the will (see also Winfield and Jolowicz on Tort (WVH Rogers ed) (Sweet & Maxwell, 18th Ed, 2010) at p 215). However, I note that both Lord Goff in White (HL) (at 269E–H) and Cooke J in Gartside (at 44) were content to leave such exceptional cases to be decided when they arise. In my view, that approach is both prudent and in keeping with the common law’s tradition of deciding cases on an incremental basis.

  135. [96] Thus, no cogent policy reasons have been raised to negate the imposition of a duty of care on Cheo. Before moving on, however, I wish to add that there are in fact relevant policy considerations which operate to affirm a duty of care in cases such as the present (see Animal Concerns Research & Education Society v Tan Boon Kwee [2011] 2 SLR 146 at [77] for the legitimacy of using policy reasoning in this manner).

  136. [97] First, I note that if no remedy is extended to the third party beneficiaries, then the only claim which can be made against a negligent solicitor is that by the estate. The estate, however, has suffered no real loss and hence will be entitled to only nominal damages. The negligent solicitor, as Nicholls VC observed in White (CA) (at 490), thus goes off “scot-free” and can breach his professional duties “with impunity”. That is certainly objectionable. In my view, therefore, the imposition of a duty on the solicitor to take reasonable care towards third party beneficiaries is desirable from the standpoint of policy because it serves, at the same time, to complement and thereby enhance the solicitor’s duties towards the testator client. This point was succinctly made by Megarry VC in Ross (at 322C) where he stated that the recognition of a duty of care towards the third party, “far from diluting the solicitor’s duty to his client, marches with it, and, if anything, strengthens it”.

  137. [98] Relatedly, imposing a duty in such circumstances also has the beneficial effect of promoting the vigilance and competence of solicitors who advise in the context of will-making. In this regard, I echo the Court of Appeal’s sentiment in Anwar (at [166]) that:

  138. [99] I regard the latter point as being of particular relevance given the undeniable importance which society as a whole places on the act of will-making. This point was adverted to in White (HL) by Lord Goff who noted (at 260B) that:

  139. [100] In my view, therefore, the policy considerations at play in these circumstances weigh in favour of the imposition of a duty of care rather than against it.

  140. Breach

  141. [101] Having found that Cheo owes a duty of care to the plaintiffs, I now consider whether it has been breached. Here, the plaintiffs argue that Cheo has committed two relevant breaches, one relating to the New Will’s execution and the other relating to its drafting.

  142. Cheo has breached his duty to ensure the proper execution of the New Will

  143. Cheo failed to ensure that the New Will was executed before two witnesses present at the same time

  144. [102] The alleged breach in the context of the New Will’s execution relates to Cheo’s failure to ensure that at least two witnesses were present at the material time which caused its invalidity. This requirement is found in s 6 of the Wills Act which reads as follows:

  145. [103] It is undisputed that Cheo is the sole witness to the execution of the New Will. Accordingly, s 6(2) of the Wills Act has not been complied with. Given my earlier finding that the scope of Cheo’s duty includes the proper execution of the New Will, it thus appears to be rather straightforward that Cheo is in breach of this duty. However, in this regard, I note that the defendants repeatedly stress in the pleadings that it was either AEL or the Testator, and not Cheo, who proposed getting one of the officers from Citibank to be a second witness of the New Will (see [12] above). The suggestion seems to be that the plaintiffs should therefore take responsibility for the fact that no one from Citibank was present as a second witness. If this is the argument being advanced by the defendants, then I find it to be wholly without merit.

  146. [104] I cannot see why it should matter if AEL or the Testator had proposed the identity of the second witness because this does not detract from Cheo’s duty to ensure that there must, in any event, be at least two witnesses present at the time of execution. In other words, if the requisite number of witnesses are not present at the execution of a testator’s will, the solicitor having conduct of the matter must be vigilant enough to advise the testator that purporting to execute a will in such circumstances will be a fruitless exercise; this is regardless of whether the attendance of those witnesses is proposed or arranged by the testator. If, however, that solicitor continues to wave on the execution of the will without expressing any reservations, then he indubitably falls short of the general standard of care and skill which the law demands of him, which is that of a reasonably competent and diligent solicitor (see Charlesworth & Percy on Negligence (Sweet & Maxwell, 12th Ed, 2010) at para 9-232).

  147. [105] I am therefore of the view that Cheo ought to have alerted the Testator to the fact that the New Will was being executed in flawed circumstances. Instead, it appears that after witnessing the execution of the New Will on his own, Cheo was happy to leave the Testator to procure a second witness without informing him of the futility in doing so. This may be gleaned from an attendance note made by Cheo himself which recorded the events surrounding the New Will’s execution:

  148. [106] Based on these circumstances as set out by Cheo, I find that Cheo is negligent in ensuring that the New Will is properly executed in accordance with the Wills Act.

  149. Cheo was not aware that two witnesses had to be present at the time of execution

  150. [107] At this juncture, I am minded to make certain observations concerning why Cheo had omitted to ensure the presence of another witness at the execution of the New Will. In this regard, Cheo explains, in an effort to downplay his own culpability, that he knows that a will has to be subscribed by at least two witnesses but he had at that time merely “overlooked” the necessity of them doing so at the same time. I am, however, not convinced by this explanation. My own view is that Cheo’s negligence here is not an instance of mere inadvertence or lapse of concentration but, more troublingly, stemmed from his ignorance of the statutory requirement that a will must be executed before at least two witnesses.

  151. [108] I am supported in my view by, first, the appearance of the New Will. In this regard, I find it striking that there is only one signature block at the foot of the New Will with Cheo’s typed-in particulars such as his name, address, identity card number and occupation. A second signature block, however, is conspicuously absent. In other words, space was created in the New Will for only one person to sign as a witness. This is most telling because if Cheo knows, as he claims, that two witnesses have to subscribe on the New Will, then one will naturally expect him, as the draftsman of the New Will, to have included a second signature block. This would be so even if the identity of the second witness was not known at the time of drafting because, in that instance, the various fields for that unknown witness’s particulars could simply have been left blank. Instead, a second signature block has been omitted in its entirety here. This certainly invites the inference that Cheo was in fact unaware at that time that at least one other witness had to subscribe on the New Will together with him.

  152. [109] I also consider a second piece of evidence to be relevant in shedding light on the level of Cheo’s ignorance. This concerns his act of notifying the relevant authorities of the New Will’s execution without even first enquiring with the Testator to check if the New Will had indeed been subscribed by a second witness. This indicates to me that Cheo was in fact labouring under the mistaken belief that the New Will had been validly executed in his presence as the sole witness. This obliviousness to the need for two witnesses appears to be the only reasonable explanation for his bold step in informing the authorities of the New Will when its execution is patently defective. Otherwise, there is every reason to believe that he would have at least sought to confirm that a second witness had subscribed on the New Will before doing so. At trial, however, Cheo maintains that he knows that at least two witnesses have to be present during the execution. He explains that he is nevertheless willing to take the risk of informing the authorities of the New Will on the assumption that a second witness had subscribed on it. However, for the reasons which I have already given, I find this hard to believe.

  153. [110] Having considered the evidence before me, I find that, contrary to his assertions, Cheo was unaware of the basic requirement that a will’s execution has to be witnessed by a statutory minimum of two persons. This explains why he allowed the Testator to execute the New Will in his presence alone despite it being obvious that such circumstances were less than adequate. In my judgment, this reflects a lack of competence on Cheo’s part and I thus reject his attempt at characterising this case as one of negligence by careless oversight.

  154. Cheo’s failure to appoint “executors” did not cause the plaintiffs’ loss

  155. [111] I now come to the second of Cheo’s alleged breaches. The plaintiffs argue here that Cheo has been negligent in drafting the New Will as he failed to explicitly appoint “executors” therein. AEL and AEN’s appointment as “trustees” is said to be insufficient for this purpose because the office of an executor is very different from that of a trustee.

  156. [112] Strictly speaking, I do not have to deal with this aspect of the plaintiffs’ submissions since I have already found that Cheo is negligent in respect of the New Will’s execution. Nevertheless, I consider it appropriate that I should do so in the interest of completeness.

  157. [113] In this regard, I begin by saying that I accept the plaintiffs’ premise that trustees and executors are distinct in law (see Syed Abbas bin Mohamed Alsagoff and another v Islamic Religious Council of Singapore (Majlis Ugama Islam Singapura) [2010] 2 SLR 136 at [20]). However, I am of the view that even if this means that Cheo should have explicitly appointed executors when drafting the New Will, his failure to do so did not cause the plaintiffs’ loss in and of itself. The plaintiffs’ loss here arises because the Testator’s estate has to be distributed under intestacy, and that in turn flows from the New Will’s invalidity. In order for the plaintiffs’ argument to have any force, then, it must at least be shown that the failure to explicitly appoint an executor—just like the failure to execute a will before two or more witnesses—impinges upon a will’s validity. The law is clear, however, that it does not.

  158. Letters of administration with the will annexed may be granted where no executor is appointed

  159. [114] Section 13(1)(a) of the Probate and Administration Act (Cap 251, 2000 Rev Ed) provides that where no executor is appointed by a will, letters of administration with the will annexed may be granted to such person or persons as the court considers the fittest to administer the estate. “Letters of administration with the will annexed” is in turn defined in s 2 of the same Act in the following manner:

The judgment continues past this page. Read the rest at eLitigation.