High Court · Decided 14 October 2009

Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners)

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[2009] SGHC 229Case no. Suit 238/2007

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Laws this judgment relies on

Mental Capacity Act 2008

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Lai Siu Chiu J:
Introduction
[1] This was a most unfortunate case where the unequal affections of a mother Madam Goh Hun Keong (“Mdm Goh”) for her six children resulted in her second daughter Chee Mu Lin Muriel (“the plaintiff”) suing her youngest and favourite child Chee Ka Lin Caroline (“the defendant”) over the validity of one of two Wills which Mdm Goh had executed during her lifetime.
[2] Alexander Chee (“the First Intervener”) and Maureen Chee (“the Second Intervener”) are a son and a daughter respectively of Mdm Goh. (Henceforth the First and Second Interveners are referred to collectively as “the Interveners” or where appropriate as “Alexander” and “Maureen” respectively). Besides the plaintiff and the defendant, the Interveners have two other siblings viz Chee Ping Swee (“Ping Swee”) and Chee Ping Kong (“Ping Kong”). Ping Swee lives in Singapore while Ping Kong, like the Interveners, resides in the United States of America (“the USA”).
[3] The dispute between the plaintiff and the defendant centred on a Will executed by Mdm Goh on 21 August 1996 (“the 1996 Will”). The bone of contention arose from the fact that an earlier Will had been made by Mdm Goh on 16 March 1989 (“the 1989 Will”).
[4] In this action, the plaintiff sought to propound the 1996 Will, and in so doing, prayed for a declaration that the 1989 Will had been validly revoked and was therefore invalid. The defendant, on the other hand, denied the validity of the 1996 Will on various grounds and propounded the 1989 Will.
[5] The Interveners supported the defendant’s case while Ping Swee sided with the plaintiff. In supporting the defendant, the Interveners acted against their own interests, as shall become clearer later in the judgment. For the time being, it suffices to say that the Interveners’ view was that the contents of the 1989 Will (as opposed to those in the 1996 Will) better reflected Mdm Goh’s wishes.
Pleadings
[6] The plaintiff alleged that on or about 18 August 1996, Mdm Goh had given instructions to a lawyer (“MO”) to draft the 1996 Will. The 1996 Will was then drawn up by MO in accordance with Mdm Goh’s instructions to her.
[7] The plaintiff’s case was that on or about 21 August 1996, MO, accompanied by her partner (“W”) and Dr Goh King Hua (“Dr Goh”) who is the nephew of Mdm Goh, were all present at the plaintiff’s house at 7 Greenleaf Place, Singapore (“Greenleaf Place”). The plaintiff averred that during that time, MO explained the content and purport of the 1996 Will line by line to Mdm Goh prior to its execution. Mdm Goh, in turn, read the 1996 Will by herself prior to executing it in the sight and presence of Dr Goh and the two witnesses, namely MO and W.
[8] The plaintiff further alleged that Mdm Goh was a free and capable testatrix to the 1996 Will, which expressly revoked all testamentary dispositions (including the 1989 Will) previously made by her. The plaintiff therefore alleged that the 1996 Will was the true and valid last Will of Mdm Goh, as the 1989 Will had been revoked and was therefore invalid.
[9] In her statement of claim, the plaintiff claimed the following:
(a)
a declaration pronouncing against the validity of the 1989 Will;
(b)
a declaration pronouncing for the force and validity of the 1996 Will;
(c)
a declaration that the 1996 Will was the true and valid last will and testament of Mdm Goh which revoked all former wills and testamentary dispositions including the 1989 Will;
(d)
that the order of court dated 26 July 2004 in Probate No 141 of 2004 granting the defendant’s Petition for Probate of the 1989 Will be set aside; and
(e)
that a Grant of Probate of the 1989 Will in Mdm Goh’s Estate should not be sealed in favour of the defendant.
[10] Conversely, the defendant in her defence averred that Mdm Goh would not have executed the 1996 Will because she would have known that significant parts of the contents were factually incorrect or did not reflect her intentions. Further, the manner in which the 1996 Will was actually executed on 21 August 1996 indicated that in respect of certain aspects of the 1996 Will, the instructions of Mdm Goh were not even properly sought or not sought at all.
[11] The defendant also contended that Mdm Goh did not have the mental capacity or competency to properly execute the 1996 Will.
[12] The defendant added that Mdm Goh neither knew of nor approved the contents of the 1996 Will when she executed it. The defendant’s position was that there were suspicious circumstances surrounding the execution of the 1996 Will which would arouse the vigilance and suspicion of the court. In addition, the defendant challenged the 1996 Will on the ground that the Will was not duly executed – that when the same was executed, Mdm Goh was not of sound mind, memory and understanding and that the execution of the Will was obtained by undue influence.
[13] The defendant therefore counterclaimed as follows:
(a)
that the court pronounce against the 1996 Will propounded by the plaintiff;
(b)
that the court hold the 1989 Will to be valid and
(c)
that Probate No 141 of 2004 be allowed to proceed to extraction of the Grant of Probate.
Factual Background
[14] The plaintiff is a lawyer who is married to a National University of Singapore (“NUS”) law lecturer, RB (“B”). The defendant is a doctor (an ophthalmolist) who is married to another doctor, Paul Chew Tec Kuan (“Paul”).
[15] Mdm Goh was born on 2 February 1921 and passed away on 9 June 2004 at the age of 83, outliving her husband, Dr Chee Siew Oon (“Dr Chee”), who breathed his last in October 1990. At the time of her death, Mdm Goh was survived by six children who in order of seniority are:
(a) Alexander;
(b) Maureen;
(c) Ping Kong;
(d) Ping Swee;
(e) the plaintiff; and
(f) the defendant.
[16] Mdm Goh completed her secondary school education at Methodist Girls School and was trained as a teacher at the Teachers’ Training College. After her training, she taught English at various schools. Mdm Goh married Dr Chee in August 1945 and had seven children six of whom survived. A few years after her marriage, Mdm Goh retired from teaching and became a very successful property investor. Indeed, as at her death, Mdm Goh had amassed several properties for investment and rental purposes. Her usual conveyancing lawyer was Mr Hin Hoo Sing (“HHS”) of M/s Hin Rai & Tan.
[17] As indicated earlier [5], the siblings had divided themselves into two camps. In one camp, there was the plaintiff and Ping Swee. In the other, there was the defendant and the rest of the siblings, namely the two Interveners and Ping Kong. The first camp refused to accept that the defendant was the favourite child of Mdm Goh, and insisted that Mdm Goh intended to divide her estate equally amongst the siblings. As shall become evident later, the second camp did not share the same sentiments. Indeed, the second camp maintained that the defendant was without doubt the apple of Mdm Goh’s eye and that Mdm Goh’s true wishes were reflected in the 1989 Will, not the 1996 Will.
[18] The Interveners and Ping Kong had left for the USA for further studies in the 1960s-1970s and chose to settle down there. All the siblings gave evidence at the trial save for Ping Kong, who declined to return to Singapore as he had not enlisted for National Service in his formative years. Counsel for the defendant had applied to have Ping Kong’s evidence adduced via video link but the application was opposed by the plaintiff and disallowed before trial commenced in this court.
[19] Much was said in court and will be said about the 1996 Will but before I turn to the same, I shall first look at the circumstances surrounding the execution of the earlier Will.
The 1989 Will
[20] On 16 March 1989, about one month after Dr Chee had suffered a major stroke and became totally incapacitated thereby, Mdm Goh executed the 1989 Will which appointed the defendant as the sole executrix and trustee of her estate. The 1989 Will was drafted and witnessed by HHS and his clerk one Lim Bee Leng. In essence, the 1989 Will made the following bequests:
(a)
$150,000 to Ping Swee;
(b)
No 25 and 25C Lorong Liput to the defendant;
(c)
Nos 173, 175A and 175B Jalan Loyang Besar were to be sold and the proceeds (interest first, and then principal) to be utilised to provide for the care of Dr Chee should he outlive Mdm Goh;
(d)
After Dr Chee’s death, provision at the defendant’s sole discretion for the education of Mdm Goh’s grandchildren from any balance money left from his care and
(e)
The rest of Mdm Goh’s assets including No. 470 Holland Road (“the Property”) to be given to the defendant.
The 1989 Will gave the defendant almost Mdm Goh’s entire estate, save for Ping Swee’s receipt of $150,000 cash and some provisions for Dr Chee should he outlive Mdm Goh. The 1996 Will as will be seen below, was a complete reversal of the 1989 Will.
Events that took place after the execution of the 1989 Will
[21] At the time of Dr Chee’s demise (October 1990), Ping Swee was the only sibling who was living with Mdm Goh at the Property. He subsequently moved out (in 1993) as there was friction between him and Mdm Goh (according to the defendant).
[22] In 1992, the defendant and Paul left for the United Kingdom for their sub-specialty medical training; they returned in mid-1993 or thereabouts. On their return, they resumed their previous living arrangement of staying with Paul’s parents. Towards the end of 1993, the defendant and Paul started to view various apartments in the hope of finding a home of their own; they had lived with Paul’s parents for seven years. During this time, Mdm Goh was living with the plaintiff and B at Greenleaf Place, which is a stone’s throw from where the Property is located.
The 1996 Will
[23] On 21 August 1996, Mdm Goh executed the 1996 Will in which Dr Goh and the plaintiff were named as executor and executrix respectively. Both were also appointed trustees under the 1996 Will, which essentially provided the following:
(a)
The defendant and Paul were given the option to purchase Mdm Goh’s half share in the Property, within one year of Mdm Goh’s death, at the “prevailing market price as determined by two independent valuers of international repute”. (Clause 2.2)
(b)
If the option was not exercised, the Property was to be sold “in the market”. (Clause 2.3)
(c)
The stated reason for the above directions was that Mdm Goh had “transferred” the one half share of the Property to the defendant and Paul “at a discounted price of $2.5 million in 1995”. (Clause 2.1)
(d)
Clause 2.4 provided that Paul was expected to discharge the ASPF mortgage from his own funds; (ASPF was the academic staff provident fund of NUS where Paul worked and which was the university’s equivalent of the Central Provident Fund).
(e)
After the payment of all debts, the remaining assets, including the half share of the Property or the proceeds of sale thereof, were to be divided amongst the Interveners, the plaintiff, Ping Swee and Ping Kong.
The significance of the 1996 Will was that it provided for the residual estate to be divided among the five siblings in equal shares to the total exclusion of the defendant.
[24] I turn my attention now to Mdm Goh’s assets, which value according to the plaintiff, was not less than $10 million. Based on the voluminous evidence adduced at trial, Mdm Goh’s assets consisted of the following:
(a) The Property;
(b) No. 25 and 25C Lorong Liput;
(c) No. 23 Jalan Merah Sage #03-03;
(d) Cash amounting to $650,000 in OCBC Account No 4;
(e) Unaccounted rental income in relation to No 782 Victoria Street, #01-782 (the Victoria Street property);
(f) Batam properties; and
(g) Jewellery.
[25] Item (a) was the main asset of Mdm Goh, and was the catalyst for this dispute between the plaintiff and the defendant. According to the plaintiff’s evidence, the value of the Property was $9 million in December 1994 and it approximated $13 million at the time the plaintiff filed her AEIC (in January 2008). As alluded to briefly in the 1996 Will, Mdm Goh had transferred a half-share of the Property to the defendant during her lifetime. The Property was mortgaged to and financed by an overdraft facility from OCBC Bank under Account No 1.
[26] Item (b) is a two-storey shophouse, which was bought by Mdm Goh using an overdraft facility under OCBC Bank’s Account No 2. The defendant noted that the value of item (b) was significantly lower than that of item (a).
[27] Item (c) is an apartment in Chip Bee Gardens, Holland Village, which was also purchased with an overdraft facility from OCBC under Account No 3. The defendant noted that the value of item (c) was again significantly lower than that of item (a).
[28] As for item (d), the cash was transferred from Mdm Goh’s personal account No 1 with OCBC Bank to a new joint account opened by the plaintiff, Ping Swee, Alexander and Mdm Goh with OCBC Bank. This sum of $650,000 comprised part of the proceeds paid by the defendant and Paul for their half share of the Property. In the midst of the trial, it was discovered that this Account No 4 was eventually closed and the monies therefrom transferred to Standard Chartered Bank (“SCB”) on 3 December 1997, in the names of the plaintiff, Ping Swee and Mdm Goh without Alexander’s knowledge. The $650,000 was withdrawn by the plaintiff and Ping Swee, a part thereof while it was still in OCBC and the rest from SCB. The evidence adduced showed that Ping Swee withdrew about $498.859.65 (which he did not dispute) plus two other sums of $17,600 and $29,857.97 whilst the balance was taken by the plaintiff. The purpose of the withdrawals and the change of accounts from OCBC to SCB will be dealt with below at [197].
[29] In regard to item (e), the plaintiff admitted that she collected the rental income for Mdm Goh from the Victoria Street property (it was a shophouse where Dr Chee had had his private practice). The rental income that she collected from 1996 to 2001 amounted to $220,000 by the plaintiff’s own estimate. The plaintiff admitted that she had spent the rent but repeatedly said that she would account for it. In this regard, the evidence adduced at the trial painted an unflattering picture of the plaintiff, revealing her unseemly behaviour in August 1999, and the extent that she was prepared to go and did go, to collect the rent from the tenant so as to deny the defendant the same, even though the defendant had informed the tenant she would accompany Mdm Goh to collect the rent direct from the tenant.
[30] Item (f) consists of 75 units of residential houses in Batam. There was no valuation of this item provided at trial. Evidence was adduced from the defendant that the plaintiff (who did not dispute the same) had collected all the rental income before the defendant took over the task in 1999, and had also failed to account for the same.
[31] In so far as item (g) was concerned, Mdm Goh accumulated a huge collection of jewellery during her lifetime. Again, the value of the jewellery was unascertained. The defendant alleged that the jewellery was currently, in the main, in the plaintiff’s possession save for a few items which the plaintiff herself had given to Ping Swee after Mdm Goh passed away. In her AEIC, the defendant pointed out that it was yet to be ascertained if all the jewellery had been disclosed at the hearing. I should point out that in the midst of trial, the parties and or their representatives inspected the jewellery (which the plaintiff had placed in a bank’s safe deposit box) to ascertain the quantity. As with the rent of the Victoria Street property, the plaintiff repeatedly said in court that she would account for the jewellery.
The plaintiff’s case
[32] As mentioned earlier, the plaintiff sought in this action, to propound the 1996 Will and to have the 1989 Will revoked.
Events leading to the 1989 Will
[33] Ping Swee alleged that Mdm Goh had executed the 1989 Will on 16 March 1989 as a stop-gap measure to ensure that adequate provisions were made for Dr Chee’s medical and living expenses, in the event that Mdm Goh predeceased him. Ping Swee also alleged that it was he who proposed that the defendant, being medically trained, should be the one to take care of Mdm Goh (in both her financial and non-financial matters).
[34] Ping Swee maintained that it was not Mdm Goh’s intention to bequeath her residuary estate to the defendant solely, to the exclusion of her other five children. Ping Swee’s understanding was that Mdm Goh intended (under the 1989 Will) for the defendant to hold the residuary estate on trust and for the benefit of all her children. (It is to be noted that both the plaintiff and Alexander testified that they did not know of the 1989 Will until after Mdm Goh’s death). Ping Swee similarly claimed that he too did not know of the existence of the 1989 Will and that “[he] thought it would have been a trust, it could have been just a fund set aside. [He] did not know exactly what [Mdm Goh] did.”
[35] The plaintiff alleged that the defendant had already benefitted prior to the execution of the 1996 Will because the transfer of the half share in the Property to the defendant and Paul at “a discounted price” of $2.5 million meant that the defendant would have received a far larger share of Mdm Goh’s estate, as compared to what each of the other five remaining children would receive under the 1996 Will.
Sale of a half share in the Property
[36] The plaintiff alleged that the defendant and Paul agreed to move into the Property and stay with Mdm Goh on the condition that Mdm Goh transferred the Property to them (the defendant and Paul). The plaintiff voiced her objections vehemently to the proposed arrangement. In her evidence, she claimed that there were various “implications”, which included the following: “should the defendant predecease Paul, it would mean that the Property would go to Paul to the exclusion of the rest of Mdm Goh’s children, there would be estate duties etc.” The plaintiff elaborated that “it would not be fair to the rest of the siblings for the Property to go to the defendant and that it would cause resentment and unhappiness amongst the siblings since the Property was Mdm Goh's largest and most valuable single asset. The effect of the transfer would be that the defendant and Paul would get a disproportionately larger share of Mdm Goh's estate”.
[37] The plaintiff claimed that she found out about the transfer of the Property only in July 1995 or thereabouts. Prior to her discovery, the plaintiff wrote a letter dated 25 June 1994, (“the 25 June 1994 letter”) to Alexander, expressing her strong objections and unhappiness over the transfer; she attempted to enlist Alexander’s assistance to persuade the defendant and Mdm Goh against proceeding with the transfer. The 25 June 1994 letter was a crucial document in this case because its contents were uncannily similar to the terms of the 1996 Will. For that reason, I set out below its lengthy text in full:
[38] In so far as the 25 June 1994 letter was concerned, two points (which the plaintiff did not/could not dispute) should be highlighted. First, as early as two years before the execution of the 1996 Will, the plaintiff had already expressed her discontent by writing to the First Intervener to urge him to dissuade Mdm Goh from transferring the Property to the defendant at a price which she (the plaintiff) perceived as lower than the market value. Second, the plaintiff suggested that the defendant and Paul should pay a fair market price for the Property and that the proceeds should then be shared equally among the other siblings.
[39] Mdm Goh sold her half share of the Property at a price of $2.5 million to the defendant and Paul. Completion of the sale and purchase of the half share took place on 12 June 1995. Renovations to the Property began in late 1994 and were completed towards the end of 1995. On 24 December 1995, Mdm Goh, the defendant and Paul moved into the Property. As of December 1994, the value of the Property was $9 million. The essence of the plaintiff’s contention here was that the defendant and Paul should have paid Mdm Goh $4.5 million instead of $2.5 million for the half share of the Property. The plaintiff therefore alleged that the transfer of the half share was effected at a huge discount of $2 million. The plaintiff also testified that she was informed by Mdm Goh of the discount.
[40] As mentioned earlier, the plaintiff claimed that she only discovered the sale transaction in July 1995 or thereabouts. In the light of her views as expressed in the 25 June 1994 letter, it came as no surprise when the plaintiff testified that she was upset, shocked and could not sleep after discovering about the sale transaction.
[41] According to the plaintiff, “the transfer had caused the relationships amongst the siblings to be strained”. In particular, the plaintiff maintained that the strain was exacerbated by the fact that the plaintiff and Ping Swee were upset over the following incidents which allegedly took place subsequent to the transfer:
(a)
after the defendant and Paul had renovated the Property and moved into it, they relegated Mdm Goh to a smaller room;
(b)
the defendant and Paul treated Mdm Goh in a “shabby” manner;
(c)
the defendant deliberately prevented the plaintiff and Ping Swee from interacting with Mdm Goh.
The plaintiff claimed that Mdm Goh eventually became aware of the strained relationship caused by the transfer and consequently, agreed to settle her estate on the terms set out in the 1996 Will which ensured that each child would receive a “fair” proportion of the estate. I should point out that the defendant effectively rebutted the allegations in (a) to (c) in her testimony proving they were untrue.
Events leading to the 1996 Will
[42] At the time of the execution of the 1996 Will, Mdm Goh was living in the Property with the defendant and Paul.
[43] On 18 August 1996, three days before the execution of the 1996 Will, the plaintiff summoned MO and Dr Goh to her house. The plaintiff’s position was that she had informed MO and Dr Goh that the purpose of the meeting was to discuss family matters and issues relating to Mdm Goh’s care. The meeting was a quick one and as it turned out (so the plaintiff said), MO suggested that they should speak to Mdm Goh. The plaintiff, MO and Dr Goh therefore decided to pay Mdm Goh a visit.
[44] Upon their arrival at the Property, the plaintiff, MO and Dr Goh started their chat with Mdm Goh on general topics such as Mdm Goh’s health and family matters before veering towards a discussion on the distribution of Mdm Goh’s assets (“the 18 August meeting”). Indeed, during the 18 August meeting, the following (according to the plaintiff’s evidence) was what transpired:
[45] After the 18 August meeting, the plaintiff faxed two documents to MO. These documents purported to be instructions given by Mdm Goh in relation to the preparation and drafting of the 1996 Will. (MO, whose father is Dr Chee’s cousin, knew Mdm Goh and her children personally).
[46] During cross-examination by counsel for the defendant, MO repeatedly said that she could not remember anything at all about the 18 August meeting. She could not recall the instructions given to her by the plaintiff pertaining to the 1996 Will or the power of attorney that was signed in her house in December 1996 nor the lunch that she had with the defendant after the 18 August meeting. Yet, MO could remember vividly, the signing of the 1996 Will.
[47] Three days after the 18 August meeting viz in the evening of 21 August 1996, MO together with W and Dr Goh, were present at Greenleaf Place to witness Mdm Goh’s execution of the 1996 Will.
[48] According to MO (whose evidence is set out below), she explained the content and purport of the 1996 Will line by line to Mdm Goh prior to execution. Mdm Goh also read the 1996 Will by herself prior to its execution. Mdm Goh then executed the 1996 Will in the presence of MO, W and Dr Goh.
Under cross-examination, MO testified that Mdm Goh appeared to be normal when she executed the Will. She testified that she did not know that prior to the execution of the 1996 Will, Mdm Goh was under heavy medication.
[49] W similarly testified that Mdm Goh appeared to be a capable testatrix. She testified that she also believed that as Mdm Goh “was an educated woman and ... she was very experienced businesswoman”, Mdm Goh “would have understood what she was reading as well”. W further explained that “it has always been in [her] practice to ensure and satisfy [herself] that the client understands the contents of the will ... or of the document ... And ... if [she] had witnessed, [she] would have been satisfied that [Mdm Goh] understood”.
[50] The plaintiff’s position was that at or around the time of the 1996 Will, Mdm Goh was mentally alert, could relate to her children and grandchildren, and was also able to make a trip to the USA. The plaintiff insisted that Mdm Goh was capable of understanding what was going on, and was able to and did in fact make her own decisions on various matters. The plaintiff relied on the following three specific incidents to prove that Mdm Goh’s mental capacity was not impaired:
(a)
On 16 August 1996 (5 days before Mdm Goh’s execution of the 1996 Will), Mdm Goh attended the celebration of the first month of the birth of the defendant’s son Luke;
(b)
On 14 January 1997, Mdm Goh executed a Revocation of the Power of Attorney she had given to the plaintiff on 8 December 1996;
(c)
On 22 January 1999, Mdm Goh executed a Power of Attorney in favour of the defendant, which was witnessed by Dr Lee Kng Swan (one of Mdm Goh’s doctors).
The defendant’s case
[51] In support of her case that the 1996 Will was invalid and that the 1989 Will should prevail as the true and last Will of Mdm Goh, the defendant submitted that:
(a)
the 1996 Will was executed in circumstances which would arouse the vigilance and suspicion of the court that the document was not duly executed. Mdm Goh did not know of or approve the contents in the 1996 Will;
(b)
Mdm Goh was not of sound mind, memory and understanding when the 1996 Will was executed viz she lacked testamentary capacity; and
(c)
the execution of the 1996 Will was obtained by undue influence.
Was the 1996 Will prepared in accordance with Mdm Goh’s instructions?
[52] In essence, the defendant’s main contention was that the plaintiff, who was not a beneficiary under the 1989 Will, was instrumental in the procurement and preparation of the 1996 Will under which she was entitled to a one-fifth share of Mdm Goh’s estate but which left out the defendant entirely as a beneficiary.
[53] The defendant’s case was that the 1996 Will was not executed by Mdm Goh in accordance with her instructions. Further, the preparation and execution of the 1996 Will was surrounded by many incidents which could only be described as suspicious circumstances. Significant parts of the 1996 Will were factually incorrect or did not accurately reflect Mdm Goh’s wishes. Instead, the 1996 Will appeared to reflect the plaintiff’s views and wishes as expressed in the 25 June 1994 letter referred to earlier at [37]. The plaintiff had written the 25 June 1994 letter to the First Intervener to enlist his assistance to dissuade the defendant and Mdm Goh from proceeding with the transfer of the Property. The plaintiff had there expressed her opinion that the defendant should pay for the remaining half share of the Property and that the sales proceeds should be divided among the other siblings including the plaintiff.
[54] The defendant contended that she had always been the favourite child of Mdm Goh. That appeared to be the “default position” since the defendant’s childhood. The defendant therefore argued that the 1996 Will appeared to be an anomaly and completely out of Mdm Goh’s character and feelings for the defendant.
[55] The defendant revealed that it was Mdm Goh who suggested that she (the defendant) should stay with her (Mdm Goh) at the Property instead of purchasing a new home. Since it had already been decided that the defendant would inherit the Property pursuant to the 1989 Will, Mdm Goh further suggested that the Property could be transferred to both the defendant and Paul as a gift. The defendant was hesitant in accepting Mdm Goh’s proposal. As it turned out, Mdm Goh agreed to a “compromise” put forth by the defendant. The defendant would purchase half of the Property at market value, which was determined by DBS Bank to be about $4.5 to $5 million.
[56] The defendant soon discovered that the plaintiff had strong reservations about the above transaction and had no qualms in making known her disapproval on the same, even at the one month celebration of the birth of the defendant’s son; the plaintiff was openly hostile to the defendant and rude to the defendant’s mother-in-law. Because of the resulting tension and displeasure that surfaced arising from the plaintiff’s objections, Mdm Goh decided to leave for the USA to visit her three oldest children.
[57] The defendant asserted that Mdm Goh was well aware that the half share of the Property had not been sold at a discounted price. The price of $2.5 million was agreed to by both Mdm Goh and the defendant early in 1994 after the valuation by DBS was done. This was corroborated by Maureen’s evidence that Mdm Goh was aware of the Jones Lang Wootton valuation that was obtained later. Mdm Goh was cognisant that the delay in proceeding with the formalities and the transfer was due to the plaintiff’s own persistent objections which frustrated the plan of transferring the half share of the Property to the defendant earlier.
[58] In any event, even if I accept that Mdm Goh knew that the price of $2.5 million had been discounted, it would not have mattered to her, since the evidence was that Mdm Goh made no secret of the fact that she intended to give the entire Property to the defendant. The conveyancing lawyer, Tan Pei Fong (“Tan”) who prepared the transfer documentation testified that Mdm Goh had actually signed documents to hold her half share of the Property jointly with them, intending that the entire Property would revert automatically to the defendant and Paul upon her death. It was in fact the defendant who insisted on buying half of the Property and paying Mdm Goh for the share.
[59] The plaintiff’s position, on the other hand, was that Mdm Goh did execute the 1996 Will in the presence of solicitors MO and W. MO’s evidence was that she had explained to Mdm Goh the terms of the 1996 Will and that Mdm Goh had confirmed her instructions contained therein and thereafter executed the 1996 Will.
[60] The plaintiff insisted that, contrary to the defendant’s allegations, the 1996 Will was also factually accurate for various reasons. First, the 1996 Will stated that the half share in the Property was transferred to the defendant and Paul at a discount. The defendant denied this and relied on a valuation report of Jones Lang Wootton dated 21 November 1994 which valued the Property at $5 million as of 31 January 1994. The plaintiff, on the other hand, asserted that although the sale and purchase agreement for Mdm Goh’s half share was allegedly signed on 31 January 1994, the scheduled completion for the transfer was December 1994 while the transfer was actually only completed in June 1995. The plaintiff therefore insisted that there was no reason why the half share should be valued as at January 1994 (where the Property was valued at $5 million) and not December 1994 (where the Property was valued at $9 million) or June 1995. By June 1995 when the sale was finally completed, the plaintiff alleged that the value of the Property had significantly appreciated. Therefore she argued, Mdm Goh was in reality selling the half share of the Property to the defendant and Paul at a discounted price.
(i) Around 1985 to 1986 (before the execution of the 1996 Will), Paul testified he was at the plaintiff’s house when B remarked to him that Mdm Goh should distribute some of her assets to her children as and when needed (by her children), without having to wait for it.
(ii) In or around December 1996 (after the execution of the 1996 Will), a family meeting was held at Ping Swee’s flat. The individuals who were present at this meeting were B, Ping Swee, Helen (Ping Swee’s wife), Alexander, and the defendant. B took this opportunity to fish out details relating to the sale of the half share of the Property. He commented that Mdm Goh’s affairs were of interest to her potential heirs and that they had a right to know.
(iii) Sometime around the summer of 1997 (after the execution of the 1996 Will), when Maureen and her family visited Singapore, B invited her and Maureen’s husband for breakfast. B expressed his opinion that the sale of the half share of the Property was “unfair”, and that the other siblings should attempt to convince Mdm Goh to divide the rest of her estate equally amongst the rest of her children.
Did Mdm Goh possess testamentary capacity when she executed the 1996 Will?
[62] The defendant submitted that the medical evidence was overwhelmingly against the plaintiff, who depended on her sole expert witness, Dr Tan Chue Tin (“Dr Tan”) to support her case. However, unlike the doctors called by the defendant all of whom all had seen or treated Mdm Goh (save for Dr Berne Yeh), Dr Tan had never seen Mdm Goh even once when she was alive (see further [63] below).
The medical evidence on Mdm Goh’s mental condition
[63] I now turn my attention to perhaps the most important part of the case, that of the medical evidence on Mdm Goh’s mental condition. As noted in [62], the defendant’s expert witnesses had the opportunity of examining Mdm Goh in person and conducting certain tests on her. The plaintiff’s expert witness Dr Tan on the other hand, had to rely entirely on hospital and/or medical notes of the defendant’s expert witnesses and on the results of various tests performed on Mdm Goh. Consequently, it is necessary to first understand the evidence given by the defendant’s expert witnesses before one can comprehend the opinion of the plaintiff’s expert witness. For this reason, I shall first set out the opinions given by each of the defendant’s expert witnesses and then review the opinion of Dr Tan.
The defendant’s expert witnesses
[64] Mdm Goh’s mental condition started deteriorating sometime between August and November 1995. The specialist doctors whom Mdm Goh visited/consulted (in chronological order) are set out below.
Professor Lee Kok Onn (“Prof Lee”)
[65] Prof Lee who is both a physician and an endocrinologist, was Mdm Goh’s physician from 10 March 1989 to 27 April 1993. During this period, Prof Lee observed that although Mdm Goh faced some problems with her physical health (for example, mild hypertension and diabetes), “her mental health was perfectly sound”. A specific example can be found in Prof Lee’s medical notes dated 18 May 1990, where he remarked that she was driving her own car and was looking after her husband who was paralysed after a stroke. There was therefore no problem with Mdm Goh’s mental health at that point in time.
[66] Mdm Goh’s condition, insofar as her mental health was concerned, took a turn for the worse by the time Prof Lee next observed her on two separate occasions, namely 14 November 1995 and 19 August 1996. It should be noted at this juncture, that between 28 April 1993 and 14 November 1995, Prof Lee did not examine or observe Mdm Goh at all. Instead, it was his colleague Dr Lee Kng Swan (“Dr Lee”), a specialist in geriatric medicine, who attended to Mdm Goh.
[67] On 14 November 1995, Prof Lee observed that Mdm Goh’s “mental condition had deteriorated considerably” and more specifically, noted that Mdm Goh displayed the following signs, namely, unblinking eyes and a shuffling gait. His diagnosis was that Mdm Goh was suffering from an early onset of both Parkinson’s disease and dementia. In this regard, Prof Lee prescribed two different types of drugs, namely, “Selegiline” to slow down the progress of Parkinson’s disease and “Tacrine” to curb the extent of dementia (the dosage of Tacrine prescribed by Prof Lee was increased from 10mg to 20mg after the second week). Prof Lee had commented that Selegiline and Tacrine will respectively slow down but “cannot reverse the extent of Parkinson’s disease and dementia already present in the patient”. [emphasis added]
[68] On 19 August 1996, Prof Lee noted that Mdm Goh had in April 1996 undergone a brain CT scan (“the CT scan”), which showed the presence of “multiple lacunar infarcts” in her brain. “Lacunar infarcts” are dead portions of the brain in specific locations. Prof Lee also remarked that “once a part of the brain is dead, that part will be useless to the patient.” In view of that, he transferred her to the care of Dr Benjamin Ong, a neurologist, whose evidence will be dealt with later at [89] to [93].
Professor Kua Ee Heok (“Prof Kua”)
[69] Prof Kua, a psychiatrist, first examined Mdm Goh on 23 February 1996. Mdm Goh had complained of not being able to concentrate well on reading and watching television, as well as not being able to remember the names of her grandchildren. Prof Kua administered a “cognitive assessment” on Mdm Goh, and found that although she was well-oriented in place and person, she was unsure of the year, day and date. Moreover, Mdm Goh’s 5 minute recall was poor; she could say the number ‘4517’ immediately after being told but could not repeat it after 5 minutes. Prof Kua’s provisional diagnosis of Mdm Goh was “depression, to exclude dementia”. He therefore prescribed the following drugs for her: “Haloperidol” (to reduce her symptoms of delusions), “Stilnox” (a sleeping pill), and “Sertraline” (an anti-depressant).
[70] Mdm Goh’s next two appointments to visit Prof Kua were in March 1996. On both those occasions, Prof Kua observed that Mdm Goh’s memory was still not too good, and that she was forgetful of names and dates. On 14 March 1996, he noted that she appeared to be less delusional. Nevertheless, Prof Kua continued her medication on Haloperidol, Stilnox, and Sertraline.
[71] The next visit was on 28 March 1996, during which Prof Kua noted that Mdm Goh still suffered from delusional ideas about her maid – she had previously accused her maid of sleeping with Dr Chee and Paul. Prof Kua also noted that Mdm Goh’s depression had improved but her memory was worse. In his view, this was an indication of dementia, the reason being, if Mdm Goh’s poor memory was caused by depression rather than dementia, her memory would improve when the depression did. I note here that Prof Kua had already started treating Mdm Goh with Sertraline since February 1996. I also note that Prof Kua’s evidence was that Mdm Goh was already suffering from mild to moderate dementia when he saw her in March 1996. It was on this visit that Prof Kua administered the “Elderly Cognitive Assessment Questionnaire” (“the ECAQ”) on Mdm Goh.
[72] The ECAQ is a screening tool for the elderly devised by Prof Kua and his medical team. According to Prof Kua, although the ECAQ “does not diagnose dementia”, it tests for poor orientation, short-term memory loss and poor concentration, which are all signs of dementia as well as signs of cognitive impairment in general. The ECAQ consisted of the following ten simple questions posed to elderly patients:
(i)
What day is it today?
(ii)
What is today’s date?
(iii)
What month is it?
(iv)
What year is it?
(v)
What is your name?
(vi)
Do you know where you are/what place you are at, right now?
(vii)
What is your date of birth?
(viii)
How old are you?
(ix)
Recite a 4-digit number back to the questioner.
(x)
Repeat the 4-digit number five minutes later.
[73] Dr Tan had strongly criticised the effectiveness of the ECAQ. His main complaint was that the test was unfairly weighted with four time-based questions when many healthy elderly lose track of time. Here, I note that Mdm Goh was unable to recall the day, date, month, year when the ECAQ was performed on her. Dr Chan Kin Ming (“Dr Chan”) disagreed with Dr Tan’s criticism and pointed out that there were at least two other mini-scales (an example of which is the Gwent Orientation and Awareness Listing (“GOAL”)) employed to assess the mental function of patients that also placed the same weight on these four criteria; these appeared to the experts in general to be matters of sufficient importance which ought to be considered when assessing whether an elderly patient is suffering from cognitive impairment. Further, Dr Chan testified that the importance of the time-based criteria (ie. the day, month, year, and day of the week) is evidenced in an article titled “Journal of Clinical Geropsychology”. The defendant therefore submitted (and I agree), that the time-based criteria were indeed relevant and significant factors to take into account when determining whether Mdm Goh (or any other elderly patient for that matter) had cognitive impairment.
[74] I return now to the results of Mdm Goh’s ECAQ performed on 28 March 1996. It is to be noted therefrom that her ECAQ score was 5 out of 10 – she could not recall the day, date, month, year, and also failed the 5 minute recall test. This signified cognitive impairment. Prof Kua’s diagnosis on 28 March 1996 was that she had progressively poor memory and Alzheimer’s disease. He also continued his prescription of Haloperidol, Stilnox, and Sertraline. Further, in the light of her poor ECAQ score and continuing delusions, Prof Kua arranged for the CT scan (see [68] above) to be performed on Mdm Goh, in order to assess whether she was suffering from multi-infarct dementia (or vascular dementia, as it is now known). Under cross-examination, Prof Kua opined that Mdm Goh had both features of mild to moderate dementia.
[75] The CT scan report (which was prepared by one Dr Michael Teo who is a general radiologist), dated 2 April 1996, showed that Mdm Goh did indeed possess lacunar infarcts in some areas of her brain. It also showed that there were ischaemic changes in Mdm Goh’s frontal lobes bilaterally.
[76] I will refer now to the evidence of Dr Benjamin Ong (“Dr Ong”) relating to the significance of the frontal lobes of the brain; he opined:
[77] Further, Dr Berne Yeh (“Dr Yeh”), who is a neuro-radiologist specialising in reading brain scans, noted that there was shrinkage or atrophy of the frontal lobes, and that this shrinkage was unlike normal old-age shrinkage. Indeed, Dr Yeh opined that the ischaemic changes in the frontal lobes and the frontal lobe atrophy were a possible contributing factor to cognitive impairment. Under cross-examination, Dr Yeh testified that looking at the CT scan, “there is a reasonable chance that clinically, she would manifest dementia”. Dr Yeh doubted that Mdm Goh had executive function with the condition of her frontal lobe atrophy. When he was invited by counsel for the plaintiff to explain which aspect of the brain function would be affected by “dementia”, Dr Yeh clarified as follows:
[78] The finding that Mdm Goh suffered frontal lobe damage was further supported by Dr Ong’s examination of her on 12 September 1996 (see below at [90]).
[79] In the light of the CT scan report, Prof Kua’s diagnosis of Mdm Goh during the visit of 18 April 1996 was that she was suffering from a combination of vascular dementia as well as Alzheimer’s disease. Prof Kua prescribed Tacrine to Mdm Goh. He also made two more observations. First, the presence of lacunar infarcts and Mdm Goh’s history of diabetes and hypertension were consistent with vascular dementia. Second, the progression of Mdm Goh’s dementia over the years was consistent with Alzheimer’s disease.
[80] I should point out two significant and relevant events which occurred shortly before Mdm Goh’s next visit to Prof Kua on 4 September 1996. First, on 10 August 1996 (11 days before the execution of the 1996 Will), Mdm Goh fell in the driveway of the Property; she injured her head and suffered a laceration. B was the one who brought Mdm Goh to National University Hospital (NUH) to see Dr John Isaac (“Dr Isaac”). Dr Isaac sutured Mdm Goh’s head wound and warded her overnight for observation. Mdm Goh was discharged the next day. Secondly, on 4 September 1996, Mdm Goh suffered a second fall.
[81] I pause here to note that Dr Isaac found Mdm Goh to be “alert and oriented”, which was the reason why she was discharged on 11 August 1996 after one night of observation. She was to return on 19 August 1996 to have her stitches removed. According to Dr Isaac, the description “alert” in his report meant that Mdm Goh was not unconscious, could obey simple commands (for instance, “lift your hands”, “squeeze my hand”, and “tell me if you have any pain”), and was not drowsy, whilst the description “orientated” meant that she could more or less tell her identity, location and the day. Dr Isaac took pains to emphasise that “alert” and “orientated” did not relate at all to Mdm Goh’s higher cognitive function, which included judgment, interpretation, the ability to assess unusual situations, memory and stability of emotions. Further, Dr Isaac confirmed that there was no assessment of the higher cognitive function of head trauma patients in both the emergency department and general surgery ward where Mdm Goh was taken.
[82] On 19 August 1996, Mdm Goh saw Dr Isaac for her follow-up, for which he noted in his Surgical Outpatient Notes that Mdm Goh was “to see KO Lee for KIV CT for lacunar infarcts” . In Dr Isaac’s report dated 22 September 2004, he noted that Mdm Goh would be seeing a neurologist for “slower mentation and a CT scan was scheduled. As [Mdm Goh] was followed up by the neurologist for this, I have discharged her from the surgical follow-up”.
[83] Dr Isaac could not recall which time-based questions were asked of Mdm Goh and what her answers (if any) were when assessing the seriousness of her head injury suffered from her first fall. There was also no actual record of such questions and answers. What is certain is that Dr Isaac was sufficiently satisfied with the answers given by Mdm Goh to conclude that she did not suffer from a serious head injury. Hence, she was allowed to be discharged after one night of observation. In my view, Dr Isaac’s observation of Mdm Goh as being “alert and oriented” must be seen in this light. He found her to be “alert and oriented” enough to be discharged the following day, but certainly did not form any view as to whether she was “alert and oriented” enough to possess testamentary capacity. Dr Isaac was obviously only looking after Mdm Goh’s resultant head injury from her fall; he was not treating her dementia or assessing her testamentary capacity.
[84] During the 4 September 1996 visit, Prof Kua noted that Mdm Goh’s poor memory and delusional ideas still persisted. Prior to this visit, Mdm Goh was on the following medication (“cocktail of drugs”):
(a) Sertraline
(b) Stilnox
(c) Haloperidol
(d) Tacrine
(e) Selegiline
It is pertinent at this juncture to point out that the defendant’s case was that the effects of the various drugs prescribed and listed above, caused Mdm Goh to fall on 10 August 1996 at the Property, thereby suffering a head injury. Indeed, Prof Kua and Dr Ong both suspected that the cause of Mdm Goh’s falls was the cocktail of drugs which she was taking at that time.
[85] After the 4 September 1996 visit, Prof Kua promptly took Mdm Goh off Sertraline, Stilnox, Haloperidol and Tacrine. He then replaced those drugs with Loramet (a milder sedative). His reasons for doing so were: Mdm Goh was taken off Haloperidol (which has potential side effects of sedation, postural hypotension, and Parkinson’s disease-like symptoms) because she had fallen recently. Sertraline and Stilnox were also removed because of the side effects of sedation. Finally, Tacrine was no longer prescribed for Mdm Goh because of the potential liver toxicity.
[86] It is noted that Mdm Goh did not suffer any more falls after her cocktail of drugs was replaced with Loramet. Indeed, it was the defendant’s case that it was reasonable to conclude that the cocktail of drugs was the cause or a contributory cause of Mdm Goh’s falls.
[87] I further note that Prof Kua was of the view that the natural history of Alzhiemer’s and vascular dementia was consistent with a natural lifespan of 8 to 10 years, as evidenced in an article titled “Survival Study of Vascular Dementia in Rochester, Minnesota”. In this regard the defendant submitted that the duration of 8 to 10 years was consistent with the fact that Prof Lee’s diagnosis of an early onset of dementia was on 14 November 1995 and Mdm Goh died on 9 June 2004. In contrast, the duration of 8 to 10 years was not consistent with the plaintiff’s expert’s case, who maintained that Mdm Goh suffered from dementia only after her stroke in October 1998.
[88] Prof Kua opined that Mdm Goh was unlikely to be able to comprehend the 1996 Will due to her suffering from dementia, depression, the effects of consuming a cocktail of drugs, and the head injury which she suffered as a result of the fall on 10 August 1996.
Dr Ong
[89] Dr Ong, a neurologist, saw Mdm Goh on 12 September 1996 on the problem of recurrent falls, most recently about a week earlier, when she had injured and bruised her left cheek and the area around the left eye. He noted that she had no recollection of the exact details of the fall despite its seriousness and, she had been on treatment for depression and dementia.
[90] Dr Ong examined Mdm Goh for signs of damage to her frontal lobes. As it turned out, the tests were positive for frontal lobe release, meaning that there were signs that Mdm Goh’s frontal lobes lacked the control which they should under normal circumstances, have. Such signs included palmomental reflexes which were present on both sides and poor control of limb movement.
[91] Further, Mdm Goh exhibited gait changes suggesting gait apraxia (apart from parkinsonism) meaning that her gait was abnormal in that there was a loss of arm swing and tentative direction change, although initiation of movement was good. Dr Ong noted that these findings were signs of disordered function of the frontal lobes which was consistent with dementia. Finally, Dr Ong noted that Mdm Goh was incontinent, which itself was another sign of loss of frontal control.
[92] Under cross-examination, Dr Ong opined that Mdm Goh’s dementia as at 12 September 1996 was probably at a stage which was worse than moderate. He also expressed the opinion that the ischaemic changes as evidenced in the CT scan were related to cognitive impairment. In particular, he relied on the findings of an article titled “The Cognitive Correlates of White Matter Abnormalities in Normal Aging: A Quantitative Review” which conclusion was that “white matter abnormalities” (ie. ischaemic changes) “are associated with attenuated performance on tasks of processing speed, immediate and delayed memory, executive function, and indices of global cognitive functioning” Dr Ong was also of the view that there was a correlation between ischaemic changes and cognitive impairment.
[93] Dr Ong’s opinion was that it was very unlikely that Mdm Goh had executive function at the time of the execution of the 1996 Will. He was further of the view that Mdm Goh, when she was read the 1996 Will line by line, could have appeared to be able to understand its contents (as MO testified), notwithstanding her cognitive impairment condition.
Dr Lee Kng Swan (“Dr Lee”)
[94] Dr Lee’s medical notes must be examined with a caveat. She passed away before the trial began and could not therefore be cross-examined on her diagnosis.
[95] Dr Lee took care of Mdm Goh from 16 July 1993 to 9 June 1994 (after which Mdm Goh was in the USA for about a year), and again from 12 September 1996 to 15 December 1999. Dr Lee noted on 9 June 1994 that Mdm Goh’s mood was low. On 12 September 1996, Dr Lee noted that Mdm Goh was suffering from memory loss, and poor short term recall. Mdm Goh’s mood was still low. Dr Lee observed the bruising around Mdm Goh’s left periorbital areas (around the eye) and on her left cheek. Mdm Goh’s short term memory was assessed to be inconsistent.
[96] As evidenced in her medical notes, Dr Lee was of the opinion that the CT scan was “normal”. Dr Lee concluded that Mdm Goh did not suffer from dementia.
[97] From end 1995 to 1996, Mdm Goh’s mental health deteriorated. She suffered from memory loss, could not concentrate on reading and watching television and had paranoid delusions. These complaints were related to Prof Kua whose medical notes contained contemporaneous records of these statements. Mdm Goh’s mental health appeared particularly poor around August to September 1996, when she had a series of falls.
[98] On 10 August 1996, Mdm Goh had a serious fall and suffered a scalp laceration that bled profusely. She was hospitalised for a day and required stitches.
[99] Mdm Goh was treated with Tacrine (a dementia drug) from November 1995. When the ECAQ was administered in March 1996, Mdm Goh was not able to answer 5 out of 10 simple questions. By April 1996, she was diagnosed with lacunar dementia and Alzheimer’s disease. By September 1996, she had suffered sufficient damage to the brain frontal lobes (which govern a person's cognition, reasoning, working memory, judgment, fund of knowledge, naming lists of things in a certain category) for the signs to be spotted, meaning significant damage had already been present for some time.
[100] The defendant’s medical witnesses spoke with a common voice when they expressed the opinion that Mdm Goh was suffering from dementia, depression as well as from being over-medicated with drugs. Professors Lee, Kua and Dr Ong all stated that the said drugs, especially Haloperidol (an anti-delusion drug), had the side effect of making it difficult to concentrate or think clearly.
[101] Dr Ong and Prof Kua also stated that, in their opinion, Mdm Goh was unlikely to have understood the contents of the 1996 Will or to have had the requisite testamentary capacity to execute the same.
Dr Chan Kin Ming
[102] Dr Chan is a geriatrician who attended to Mdm Goh from November 1996 to February 1997. Dr Chan first saw Mdm Goh on 13 November 1996. It should be noted that between the visit on 13 November 1996 and the visit on 11 December 1996, Dr Lee added a memorandum to Dr Chan’s notes indicating that “CT scan done. Normal”. However, both Dr Chan and Dr Yeh did not consider the CT scan to be normal at all.
[103] On 26 February 1997, Dr Chan administered an ECAQ on Mdm Goh, and this time, her score was 4 out of 10. Mdm Goh could not tell the day of the week, date, month, year, her age (she knew her birthday though), and she failed the 5-minute recall test. Dr Chan also carried out two clock tests on Mdm Goh. In this regard, she was able to draw in the clock face numbers accurately, but when asked to draw in the hands to show the time of “10 past 9”, she drew the time as “10 to 9” in the 1 clock test, and 5.57 for the 2 clock test. Dr Chan informed the plaintiff that Mdm Goh was suffering from cognitive impairment. I also note here that the plaintiff denied that the same time would have been asked, but Dr Chan maintained that this was indeed his practice. It should also be pointed out that Dr Chan opined that Mdm Goh’s falls were a result of “polypharmacy” (viz overmedication). The plaintiff chose not to call Dr Chan as her witness.
The plaintiff’s expert witness
[104] The plaintiff’s expert Dr Tan said he was able to “conclude with a degree of medical certainty that at the time [Mdm Goh] made her Will on 21 August 1996 she possessed Testamentary Capacity to do so”. In arriving at that conclusion, it bears repeating that Dr Tan did not have the opportunity of examining Mdm Goh in person. Dr Tan relied entirely on the interviews he had conducted with a number of the factual witnesses as well as the defendant’s medical experts’ reports including that of Dr Lee.
[105] Dr Tan suggested a different interpretation of the CT scan – he opined that Mdm Goh’s frontal lobe release signs were a result of old age. Not surprisingly, Dr Ong disagreed with Dr Tan’s interpretation of the CT scan. Indeed, Dr Ong testified that the frontal lobe release signs showed frontal lobe damage which is usually absent in normal aging process. Dr Tan also discounted the effectiveness of the ECAQ.
[106] Dr Tan relied on a 1968 study titled “Observations on the Brains of Non-Demented Old People” which showed that ischaemic changes could be found in the brains of normal elderly persons (who did not suffer from dementia). I note, however, that the 1968 study had some material limitations as pointed out by Dr Ong during cross-examination. The defendant therefore submitted that the more recent article (supra at [92]) which Dr Ong relied on should be preferred over the 1968 study.
[107] Dr Tan had introduced an article titled “Quantitative cerebral anatomy of the aging human brain: A cross-sectional study using magnetic resonance imaging”. This article, however, was of limited use to the court as it was clearly based on a study using magnetic resonance imaging (“MRI”) as the title itself suggested. A CT scan (which was what Mdm Goh underwent) is totally different from an MRI. As Dr Ong explained, an MRI uses an imaging method to display qualitative changes in the brain, whilst a CT scan shows structural changes. One cannot compare apples with oranges.
Effect of the cocktail of drugs prescribed to and taken by Mdm Goh
(1) Haloperidol (to treat delusions)
[108] The defendant had submitted that the cocktail of drugs prescribed for Mdm Goh adversely affected her concentration levels, ability to think clearly, and her sedative effects.
[109] According to Prof Lee and Dr Ong, Haloperidol (which was prescribed for Mdm Goh when she suffered from delusions) can adversely affect her ability to think clearly or concentrate. Both Prof Kua and Dr Ong had confirmed that Haloperidol has the effect of sedation. It is to be noted that the label on Mdm Goh’s Haloperidol medication prescribed around 19 June 1996 stated that the drug was to be taken at night, and warned that it might cause drowsiness.
[110] Prof Lee and Dr Ong testified that elderly persons are more sensitive to the effects of Haloperidol (even if the doses taken are low).
(2) Stilnox (to treat insomnia)
[111] It is undisputed that Stilnox is a strong sedative. What was in dispute is the “half-life” of Stilnox. This was a hotly contested issue at the trial and hence must be addressed at this juncture. Half-life refers to the average time it takes half the quantity of a drug to be metabolised or eliminated from the body. One of the questions that was raised was whether one can multiply the half-life by 2 in order to calculate the duration for the entire quantity of the drug to be metabolised (“the Duration”). Indeed, Dr Tan during cross-examination appeared to suggest exactly just that when the questions were posed to him. The defendant however disagreed with the above method of calculation. In this regard, the defendant gave an example of Stilnox having a half life of three hours. This meant that every three hours, 50% of the remaining quantity of Stilnox is eliminated. After another three hours, 25% of the original quantity of Stilnox would still be lingering in the body.
[112] I note that the Stilnox product information insert (which accompanied the drug) stated that Stilnox can remain in the body for five half-lives. The label on Mdm Goh’s Stilnox medication warned that drowsiness “may persist next day”. Since the drug was to be taken at night, the drowsiness may continue until the following morning.
[113] Dr Ong had confirmed that the Duration for Stilnox to be totally eliminated from the body was about 6 to 8 hours, a figure which was supported by an online article on Stilnox. Prof Kua and Dr Ong had, however, maintained that the elderly are more sensitive to Stilnox. Consequently, Stilnox could remain in the system of an elderly (as opposed to an average) adult for a longer period of time. Indeed, the half-life could be prolonged “significantly longer” (based on the product insert) or up to 32% (based on the online article on Stilnox). It was on that basis that Prof Kua estimated that Stilnox could remain in Mdm Goh’s body for 12 to 14 hours.
[114] Prof Kua also made clear during cross-examination that halving the dosage of Stilnox will affect its potency but not its Duration. Further, Dr Ong clarified that halving the normal adult dosage for Mdm Goh was meant to achieve the same effect that full dosage had on an average adult. Both Prof Kua and Dr Ong also maintained that Stilnox may have a daytime hangover effect.
[115] I note that the textbook “Stahl’s Essential Psychopharmacology Neuroscientific Basis and Practical Applications” by Stephen M. Stahl, which the plaintiff relied on, addresses the average effects of Stilnox on normal adults only not someone like Mdm Goh.
(3) Sertraline (to treat depression)
[116] Both Prof Kua and Dr Ong stated that Sertraline does have sedative effects. Further, Prof Kua, under cross-examination, testified that its duration was about 24 hours, and that he prescribed the drug to Mdm Goh to be taken at night. As Mdm Goh was on a cocktail of drugs including both Sertraline and Stilnox, there was a potentiation effect between both drugs. In this regard, Prof Kua relied on a medical textbook titled “Clinical Geriatric Psychopharmacology” which states that Sertraline could shorten the onset of action of Stilnox and/or increase its effect.
The Interveners’ evidence
[117] There was a substantial overlap between the defendant’s evidence and that of the Interveners. This is not surprising given that both belonged to the same camp. Hence, I propose to deal with the portions of the Interveners’ evidence which have not been addressed earlier.
[118] Maureen testified that the defendant was Mdm Goh’s favourite child and that Mdm Goh had all along intended to give the Property to the defendant. Maureen also recalled Mdm Goh telling her that the purchase of the half share of the Property was a mere formality because she had willed the Property to the defendant. She further confirmed that Mdm Goh never mentioned that the purchase of the half share was done at a discounted price. Maureen deposed that in her “heart to heart” conversations with Mdm Goh in the years 1994-1995 (when Mdm Goh stayed with her in North Carolina) and onwards, there was never any time when Mdm Goh demonstrated any unhappiness or ill-feelings towards the defendant. Indeed, Mdm Goh used to boast to Maureen of the defendant’s academic achievements and other accomplishments.
[119] Alexander deposed that the 1996 Will was “very much out of character as far as [Mdm Goh] was concerned. It was Alexander’s evidence that the defendant was Mdm Goh’s favourite child and that it would be very unlikely that Mdm Goh would decide to leave the defendant out completely from her Will, which was exactly what the 1996 Will did. Indeed, Alexander was surprised when he found out that he was given a one-fifth share of Mdm Goh’s estate. He maintained that as far as he was aware, Mdm Goh never had any intention to leave him any part of her estate and further confirmed during cross-examination that he did not detect any change in Mdm Goh’s intention at any point in time.
[120] It is apposite to note that Alexander steadfastly maintained that his impression of Mdm Goh was that she was an “unfair” person (in that she would leave out four of six of her children in her Will and favour the defendant which was exactly what the 1989 Will proposed to do). It is evident that the plaintiff herself formed the same impression of Mdm Goh when she wrote the 25 June 1994 letter. Indeed, the plaintiff agreed that Mdm Goh was an “unfair” person.
Events before the commencement of this action
[121] The defendant had applied for a grant of probate for the 1989 Will on 13 July 2004. On 2 August 2004, the plaintiff lodged a caveat against the grant of probate of the 1989 Will. On 30 August 2004, the defendant served a Warning to Caveator dated 26 August 2004 which required the plaintiff to file a Notice of Appearance in court in default of which the court could proceed to issue a grant in Mdm Goh’s estate notwithstanding the plaintiff’s caveat. On 7 September 2004, the plaintiff duly filed an Appearance to Warning, and on 6 March 2007, the court ordered inter alia that the plaintiff was to commence this action. On 7 September 2007, the Interveners were given leave to intervene in this action.
The Issues
[122] The issues that arose for determination in the present case are:
The applicable principles
[123] The capacity to make a Will is determined by the testator’s state of mind. The testator must be mentally capable of making a Will. Further, the testator must know and approve of the contents of his Will. Finally, the testator must not make the Will as a result of the undue influence or fraud of another person. I shall now discuss each of the principles seriatim.
Testamentary Capacity
[124] In the United Kingdom, the test for mental capacity (for the purpose of making a Will or performing any other act) has been statutorily codified into the Mental Capacity Act 2005 (“Mental Capacity Act”), sections 1 to 4 of which were brought into force relatively recently (on 1 April 2007). The Mental Capacity Act and the accompanying Code of Practice provide a statutory definition of “mental capacity” which judges in the United Kingdom can resort to and rely upon when developing the existing common law rules in specific cases. As observed in the case of Scammell v Farmer [2008] WTLR 1261 at [26], there is some doubt as to whether the Mental Capacity Act has any relevance to wills made outside the statutory jurisdiction. In any event, in Singapore, there is no statute that equates the Mental Capacity Act. I must therefore turn to the common law to determine whether the testatrix in the present case possessed the requisite testamentary capacity.
[125] It is axiomatic that the testatrix must be shown to be of sound disposing mind at the time when her Will was made (see generally Arthur v Bokenham (1708) 11 Od Rep 148). The criterion for testamentary capacity has been stated by Cockburn CJ in the leading case of Banks v Goodfellow LR 5 QB 549 at 565 (“Banks”) in the following terms:
[126] It can therefore be seen that at common law, four elements must be present for sound testamentary capacity to exist (see R F D Barlow, Williams on Wills (9 Ed, LexisNexis Butterworths) at p 43 and at p 15 para 4.11 of the 1 supplement to the 9 Ed). First, the testatrix must understand the effect of her wishes being carried out at her death. In other words, she must understand that she is giving her property to one or more beneficiaries. It is not necessary, however, that the testatrix should view her Will with the eye of a lawyer and comprehend its provisions in their legal form (see Banks at 567). Secondly, she must understand and recollect the extent of her property. Thirdly, she must understand the nature and extent of the claims made upon her (both those she is including in her Will and those she is excluding therefrom). In particular, the testatrix must have “a memory to recall the several persons who may be fitting objects of the testatrix’s bounty, and an understanding to comprehend their relationship to [her]self and their claims upon [her]” (see in particular Boughton v Knight (1873) 3 P. & D. 64 at 65-66) so that she can decide whether or not to give each of them any part of her property by her Will (see Harwood v Baker (1840) 3 Moo.P.C. 282 - 290). Finally, the testatrix must not be labouring under any insane delusion which influences her Will in disposing of her property in a manner which, if the mind had been sound, would not have been made.
[127] In applying the test in Banks at [125], the court must look at the totality of the evidence as a whole, comprising of both factual (including evidence of friends and relatives who had the opportunity of observing the testatrix) and medical components. In my view, the court should generally accord equal importance and weight to both types of evidence, so long as both the factual and medical witnesses had the opportunity to observe the testatrix at the material time. Indeed, it has been held that the evidence of experts ought “not to outweigh that of eyewitnesses who had opportunities for observation and knowledge of the testatrix” (see Williams on Wills at para 4.20 which referred to O’Neil v Royal Trust Co and McClure [1946] 4 DLR 545). Having said that, the amount of weight and importance, which should be accorded to the particular form of evidence, will depend very much on the precise factual matrix of the individual case.
[128] When dealing with conflicting medical evidence which is the case here (where the plaintiff’s expert witness insisted that Mdm Goh possessed the requisite testamentary capacity when she executed the 1996 Will whilst the defendant’s expert witnesses contended otherwise), the function of the court to carefully weigh the conflicting evidence is of paramount importance. This is not an easy task. In a recent decision by CJ Chan Sek Keong in George Abraham Vadakathu v Jacob George [2009] 3 SLR 631 (“George Abraham Vadakathu”) at [64] he said:

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Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners)

Laws this judgment relies on

Grounds of decision

Introduction

Pleadings

(a)

(b)

(c)

(d)

(e)

(a)

(b)

(c)

Factual Background

The 1989 Will

(a)

(b)

(c)

(d)

(e)

Events that took place after the execution of the 1989 Will

The 1996 Will

(a)

(b)

If the option was not exercised, the Property was to be sold “in the market”. (Clause 2.3)

(c)

(d)

(e)

The plaintiff’s case

Events leading to the 1989 Will

Sale of a half share in the Property

(a)

(b)

(c)

Events leading to the 1996 Will

(a)

(b)

(c)

The defendant’s case

(a)

(b)

(c)

Was the 1996 Will prepared in accordance with Mdm Goh’s instructions?

Did Mdm Goh possess testamentary capacity when she executed the 1996 Will?

The medical evidence on Mdm Goh’s mental condition

The defendant’s expert witnesses

Professor Lee Kok Onn (“Prof Lee”)

Professor Kua Ee Heok (“Prof Kua”)

(i)

What day is it today?

(ii)

What is today’s date?

(iii)

What month is it?

(iv)

What year is it?

(v)

What is your name?

(vi)

Do you know where you are/what place you are at, right now?

(vii)

What is your date of birth?

(viii)

How old are you?

(ix)

(x)

(a) Sertraline

(b) Stilnox

(c) Haloperidol

(d) Tacrine

(e) Selegiline

Dr Ong

Dr Lee Kng Swan (“Dr Lee”)

Dr Chan Kin Ming

The plaintiff’s expert witness

Effect of the cocktail of drugs prescribed to and taken by Mdm Goh

(1) Haloperidol (to treat delusions)

(2) Stilnox (to treat insomnia)

(3) Sertraline (to treat depression)

The Interveners’ evidence