AOS v Estate of AOT, deceased

Lee Seiu Kin J:

[1] This is an application under s 3(1) of the Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed)(“the Act”). The applicant, who is the widow of AOT (“the Testator”), sought provision for her maintenance as well as for [B], the eldest son of hers and the Testator. The respondent is the estate of the Testator and its executors are [C] and [D] (“the Executors”).

[2] The respondent had a preliminary objection to this application as it was not filed within the 6-month time limit from the date of grant of probate (“the grant”) as provided in s 4(1) of the Act, which is the position taken by the English authorities. However in Soh Siew Yoke v Ching Kwong Yew & ors [1991] SGHC 37, Chua J took the position that time runs only from extraction of the grant rather than the date of the grant. Adopting that position, the application would have been made within time. However, even if this position were wrong (as I am inclined to hold), I was satisfied that the circumstances justified an extension of time under s 4(2) of the Act and granted an extension of time to the applicant.

[3] The applicant and Testator were married on 12 May 1975 in India and they had three adult sons, [B], [E] and [F]. [B] suffered from cerebral palsy from young and also obsessive compulsive disorder. He is married to [G] and they have a son, [H], born in 2003. From about 2004, the marriage between the applicant and the Testator was marred by conflict, with both parties filing police reports of quarrels and family violence against each other. Personal protection orders were also taken out in the Family Court. On 29 March 2005 the applicant filed divorce proceedings against the Testator. The Testator had initially contested the divorce but it eventually proceeded on an uncontested basis. Decree nisi was obtained on 26 January 2006 but before the ancillaries could be finalised and the decree nisi made absolute, the Testator passed away, on 22 August 2006. An order was made on 24 January 2007 to rescind the decree nisi and the applicant granted leave to withdraw the divorce petition.

[4] The Testator made a will on 3 April 2006 in which he gave all his property to his grandson, [H]. The value of his estate, excluding two real properties, totalled $935,000. The two real properties are the family residence – a detached house at [Property A] with an outstanding loan of about $625,000 – and a condominium at [Property B] with an outstanding loan of about $440,000. The respondent did not dispute the applicant’s contention that the Testator did not make any provision for her in his will. Indeed the respondent suggested that the reason for this was the “intense intra-family conflict that embroiled his family at the time he made his Will”. However the respondent contended that the Testator had, during his lifetime, made provision for both the applicant and [B] by purchasing a number of properties and vesting them in [B]’s name, or jointly with the applicant. These properties were mostly located in India with a total value of the equivalent of some $2m. I did note that these are, in the main, vacant land. However the respondent exhibited documents that show that the applicant owned unit numbers [xxx] and [xxx] in [Property C]. Further she had entered into a “Leave and License Agreement” with a company known as “[J] Limited” for the period October 2008 to September 2013 for a monthly rent of 444,380 Rupees. According to the respondent, this was equivalent to some $14,000, although I note that it might be closer to $12,000. Finally, the applicant was receiving a monthly sum of $5,000 from the family of the Testator in India.

[5] The long title to the Act provides that it relates to “the disposition of estates of deceased persons and for other purposes connected therewith”. Section 3 provides as follows:

[6] In considering an application under s 3(1) of the Act, the court takes into account the provisions made by the testator for the applicant during his lifetime, see Jeanne Christine Monteiro v Ling Mie Hean & Anor [1997] SGHC 296, where Choo JC had stated at [9]:

[7] The respondent objected to the applicant applying on behalf of [B]. I upheld the objection. [B] is an adult in his thirties and is married with a son. Although I accepted that he has some physical and even psychological problems, if he were unable to do so himself by reason of any disability, the proper person to apply on his behalf would be his wife. There was also no evidence that [B] was incapable of making this application on his own. For these reasons, I declined to make any order in respect of [B].

[8] The Act was enacted not for the purposes of constraining a person’s ability to dispose of his assets under his will but for the reasonable maintenance of that person’s dependants during the lifetime of such dependants. This much is clear from the following provisions of s 3:

(a) subsection (2), which provides that the maintenance shall, in the case of a spouse, cease upon remarriage;

(b) subsections (3) and (4), which constrain the funds to come from the income of the net estate except where the net estate is less than $50,000; and

(c) subsection (5), which prohibits a realisation of any asset that would be disadvantageous to the beneficiaries under the will.

[9] What the Act provides for is the reasonable maintenance of the Testator’s dependants. To that extent, the applicant is a dependant and if the Testator’s will does not make any provision for her, then the court has the powers to make such order as it deems reasonable for the maintenance of the dependant, out of the income of the net estate. I took into account that during his lifetime, the Testator had vested in the applicant a number of properties out of which she is presently deriving at least about $12,000 in monthly income. This amount is more than the sum of some $9,443 that she had stated in her supporting affidavit as her monthly expenses, apart from accommodation. Since she is residing with [B] and his family at [Property A], it appeared to me that the most expedient order in the circumstances would be to order that the Executors continue to provide her with accommodation with [H], provided she lives with him, until [H] attains the age of 21 years. If the Executors should decide to sell [Property A] and provide a replacement home for [H], then they are to provide suitable accommodation for the applicant as well in the replacement home. In my view such an order would satisfy the applicant’s rights under the Act while preserving the rights of the beneficiary to the will.