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Grounds publishedDecided 1 Jun 2016
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General Division of the High Court

Kuntjoro Wibawa v Harianty Wibawa and others

[2016] SGHC 109Case no. Suit No 650 of 2011

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  1. Introduction

  2. [1] This action concerns a family dispute that pits an erstwhile trusted son, Kuntjoro Wibawa, the plaintiff (“Kuntjoro”), against his elderly mother, Harianty Wibawa, the first defendant (“D1”). Kuntjoro seeks to recover the inheritance which he ought to have received under the Last Will and Testament of his late father, Purnakarya Wibawa (“the deceased”), dated 13 February 1996 (“the 1996 Will”). Other defendants that were dragged into the inheritance dispute included his five siblings: Karjana Wibawa, the second defendant (“D2”), Tjandrawati Wibawa, the third defendant (“D3”), Purnawati Wibawa, the fourth defendant (“D4”), Sundari Wibawa, the fifth defendant (“D5”) and Lindijasari Wibawa, the sixth defendant (“D6”). D2 to D6 are hereafter referred to collectively as “the Siblings”. At the centre of the inheritance dispute is an offshore trust set up by D1 with the assistance of BNP Paribas Wealth Management, the ninth defendant (“D9”). The offshore trust which D1 established in Jersey is the Pride Wise Trust. The Pride Wise Trust in turn holds the sole issued share in an offshore holding company, Bright Noble Prime Ltd, the seventh defendant (“D7”). The trustee of the Pride Wise Trust is BNP Paribas Jersey Trust Corporation Ltd, the eighth defendant (“D8”) and the nominees of D8 sit on the board of D7. By suing these parties, Kuntjoro hopes to be able to somehow recover (directly or indirectly) his inheritance.

  3. [2] The trial of this action took place over 16 days in August and September 2015. The first few days of the trial dealt with the limitation defence raised by D9 and the other defendants as a preliminary issue, save for D1 who reserved her right to rely on the defence of limitation at the main trial. The limitation defence was that all the claims against the relevant defendants, ranging from knowing assistance in the setting up of the Pride Wise Trust, to wrongful transfers of assets to D7, and to withdrawals of certain sums of money from several bank accounts, did not accrue within six years prior to the commencement of the present action on 21 September 2011. On the preliminary issue, I found against Kuntjoro and the reasons for dismissing his claims as time-barred are made clear in the Record of Oral Judgment dated 19 August 2015.

  4. [3] As to the remainder of Kuntjoro’s claims against the Siblings for wrongful withdrawals of sums of money that were not time-barred, respective counsel for the Siblings, at the close of Kuntjoro’s case, submitted that there was no case to answer; Kuntjoro had not adduced evidence to show that the withdrawals in question were made by the defendants accused of the misdeed and that the withdrawals per se were unlawful. I agreed with counsel and dismissed Kuntjoro’s remaining claims against the Siblings. The reasons for the dismissal are found in the Record of Oral Judgment dated 4 September 2015.

  5. [5] D1 accepts that there was no distribution under the 1996 Will for the reason that the assets in the form of money and investments in the 7 Accounts did not form part of the deceased’s residuary estate as they belonged to D1 and not to the deceased. Alternatively, if the assets in the 7 Accounts belonged to the residuary estate of the deceased (“estate assets”), the Wibawa children (ie, Kuntjoro and the Siblings) did not receive the inheritance to which they were entitled under the 1996 Will as they had gifted their inheritance to D1, who used the gift to set up the Pride Wise Trust. On either view of the ownership issue, Kuntjoro had all the time agreed to set up an offshore trust in Jersey with D7 as the underlying offshore company. With the exception of Kuntjoro, the Siblings have not disputed D1’s ownership of the assets used to set up the Pride Wise Trust. Suffice to say for now that the setting up of the offshore trust to hold the assets was a strategy taken to protect the family wealth.

  6. [6] Even if the Pride Wise Trust was set up with estate assets, D1 argues that the relief sought by Kuntjoro should be refused on the ground that Kuntjoro had agreed to the asset-protection strategy which involved the use of an offshore trust (ie, the Pride Wise Trust) in conjunction with an underlying offshore company (ie, D7). Furthermore, the action against D1 should be dismissed even if she is adjudged to be in breach of duty as named executrix of the 1996 Will or as constructive trustee of the estate assets. D1 raises Kuntjoro’s consent or concurrence as a defence to Kuntjoro’s claim for breach of trust. D1 also relies on Kuntjoro’s knowledge and acquiescence, as demonstrated by his participation and affirmation in the creation of the Pride Wise Trust and by his further affirmations from his actions as protector of the same. Arguably, Kuntjoro did not object to the assets being used to set up the Pride Wise Trust until the relationship between the two sides deteriorated, and this acrimonious dispute has only arisen now that the two sides have fallen out. All in all, it is D1’s case that Kuntjoro, having agreed to the setting up of the Pride Wise Trust and having acted as its protector (which involved him giving investment directions to D8), had waived his rights to the assets in the 7 Accounts and/or is estopped from contending otherwise and making the claims pleaded.

  7. [7] At the trial of the action against D1, Mr Syed Hassan Bin Syed Esa Almenoar (“Mr Almenoar”), who was assisted by Mr Ooi Oon Tat (“Mr Ooi”), represented Kuntjoro. Counsel for D1 was Mr Lek Siang Pheng (“Mr Lek”), who was assisted by Mr Koh Kia Jeng, Mr Tan Yee Siong and Mr Amogh Chakravarti.

  8. Background facts

  9. [8] It is convenient to begin with an outline of some background facts which will provide a contextual framework to explain Kuntjoro’s claims and D1’s defences to these claims.

  10. [9] As stated, the 7 Accounts featured prominently in the present dispute. Kuntjoro’s pleaded case is that on the date of the deceased’s death on 30 January 2000, the assets in the 7 Accounts had a value of US$12,322,892.35. The table below sets out Kuntjoro’s pleaded case on the details of the 7 Accounts, the names of the account holders and the asset value:

  11. No.

  12. Description of account

  13. Account holders

  14. Value of assets

  15. 1

  16. BNP Paribas Private Bank Account No XX-16802

  17. (“BNP 16802”)

  18. (1) Kuntjoro

  19. (2) D2

  20. (3) D3

  21. US$3,124,514.76

  22. 2

  23. HSBC SA Bank Account No XXXX-XXX419

  24. (“HSBC 419”)

  25. (1) Kuntjoro

  26. (2) D2

  27. (3) D3

  28. (4) D4

  29. (5) D5

  30. (6) D6

  31. US$3,983,959.52

  32. 3

  33. HSBC Select Bank Account No XXX-XXXXXX-XXX-XXXXXX-85

  34. (1) Kuntjoro

  35. (2) D2

  36. (3) D3

  37. (4) D4

  38. (5) D5

  39. (6) D6

  40. S$2,331,546.07 (equivalent to US$1,370,691.40)

  41. 4

  42. Bank Brussels Lambert Account No XXX-XXXXXXX-XX-011

  43. (1) Kuntjoro

  44. (2) D2

  45. (3) D3

  46. (4) D4

  47. (5) D5

  48. (6) D6

  49. US$1,675,032.75

  50. 5

  51. Merrill Lynch Account No XXX-21896

  52. (1) Deceased

  53. (2) Kuntjoro

  54. (3) D1

  55. (4) D2

  56. US$1,073,666.00

  57. 6

  58. Salomon Smith Barney Account No XXX-XXXXX-11

  59. (1) Kuntjoro

  60. (2) D1

  61. (3) D2

  62. US$749,571.61

  63. 7

  64. Bank of China Account Nos

  65. XXX-X-XXX545-6; XXX-XXX-XXXX458-4; andXXX-XXX-X-XXX313-4 / XXX819

  66. (1) Kuntjoro

  67. (2) D2

  68. US$234,093.84

  69. HK$859,956.80 (equivalent to US$111,364.51)

  70. Total

  71. US$12,322,892.35

  72. [10] As can be seen, the accounts were opened at different banks in the names of the deceased, Kuntjoro, D1 and the Siblings in different combinations. D1 disputes some of the account numbers in her Affidavit of Evidence-in-Chief (“AEIC”). I also note, parenthetically, an arithmetical error in the table above. The total amount should be US$12,322,894.39 instead of US$12,322,892.35. However, nothing turns on this arithmetical error or the alleged inconsistencies with the account numbers.

  73. [11] During the trial, the court was informed that, as at 31 July 2015, the Pride Wise Trust had a total asset value of US$33,808,919. This figure does not appear to take into account distributions that had been made to the beneficiaries of the Pride Wise Trust prior to 31 July 2015.

  74. [12] The deceased was a successful businessman. He was the Indonesian distributor of sewing threads known by the brand name Coats. The business generated a substantial amount of funds which were placed in various bank accounts in Singapore that were opened during the deceased’s lifetime. D1 says that she worked together in the business and had contributed to the success of the business. Moreover, there was the common understanding and intention between husband and wife that if either one of them were to pass on before the other, all the money and investments derived from the business and/or in the family’s bank accounts would belong to the surviving spouse.

  75. [13] It is an undisputed fact that in respect of each of the 7 Accounts, the account holders granted both the deceased and D1 powers of attorney to operate any of the accounts alone. It is common ground that during the lifetime of the deceased, the account holders, for the most part, did not make any deposits into or withdrawals from these accounts for their own purposes.

  76. The 1996 Will

  77. [14] As stated, the deceased passed away on 30 January 2000. According to D1, she was in mourning for several years. She did not disclose the 1996 Will to her children until 16 December 2003, on the occasion of a family dinner to celebrate her birthday. According to D1, this was the first time she had celebrated her birthday, and the implication here is that she was able to recall the date of the celebration vividly. On that occasion, the 1996 Will was also read out. Kuntjoro, however, claims that the birthday dinner celebration was on 20 December 2003, which was two days after D1 established the Pride Wise Trust on 18 December 2003. As will be apparent later in the course of the judgment, the date of disclosure of the 1996 Will is not of real significance to the issues in dispute.

  78. [15] The 1996 Will provided, inter alia, that:

  79. [16] D1’s contention is that the 1996 Will was intended to deal only with the property referred to in clause 3 of the 1996 Will. No evidence was adduced to support her contention, nor was an explanation proffered to reconcile her position with the clear language of clause 4 which dealt with the residuary estate. More importantly, the common understanding and intention as pleaded is specific. In her Defence, D1 pleads as follows:

  80. D1’s plea of a common understanding and intention clearly contradicts the plain wording of clause 4.

  81. [17] It is a convenient juncture to raise a related point. Exhibited in D1’s AEIC is a document entitled “Clarification of Inheritance Rights”. This document was signed on 21 April 2004 and D1 referred to it as a declaration of inheritance rights in Indonesia (“the April 2004 declaration”). According to D1, the April 2004 declaration pertained to the deceased’s assets in Indonesia and its purpose was to extend the lease on the family’s Indonesian properties. Kuntjoro’s evidence is largely consistent with this. Interestingly, D1, D4, D5 and Kuntjoro together with one Benny Prasetya, made several declarations before the Notary Public on 21 April 2004. The declaration that is relevant to this case reads:

  82. [18] It is incontrovertible that by 21 April 2004, Kuntjoro was certainly aware that: (a) the deceased had made the 1996 Will; and (b) D1 had set up the Pride Wise Trust. Yet, in the April 2004 declaration, D1 and him, as well his two sisters, D4 and D5, signed a declaration to the effect that the deceased had never made a will or testament disposing of his Indonesian assets, which was factually untrue. Clause 4 of the 1996 Will is clear and it deals with the deceased’s residuary estate wherever located (see [15] above). A reasonable inference to draw from what would otherwise be a blatant lie by the family members who signed the declaration is the existence of some informal understanding reached in respect of the 1996 Will. I will elaborate on this point later (see the discussion starting from [89] below).

  83. The Pride Wise Trust

  84. [19] The Pride Wise Trust was set up on 18 December 2003 as an irrevocable and discretionary trust. In this case, the trust structure involved the use of a trust (ie, the Pride Wise Trust) in conjunction with an underlying offshore company (ie, D7). The initial trust fund was US$100. Later on, D1’s sole share in D7 was transferred to D8 as an addition to the assets of Pride Wise Trust. At the outset, it should be noted that D7 was a shell company when D1 took it over. The trust instrument named D1 as the settlor of the trust and Kuntjoro as its first protector. It also provided for Jersey law as the governing law. The beneficiaries of the trust were identified as D1, Kuntjoro and the Siblings.

  85. What did Kuntjoro know about the Pride Wise Trust?

  86. [20] Kuntjoro’s testimony at trial is that the Pride Wise Trust was D1’s personal trust and that it was not the same offshore trust that he and Peter Finch, a wealth planner from D9 (“Finch”), had discussed. Kuntjoro met and consulted Finch and there was talk about setting up six trusts, one for each of the Wibawa children. Kuntjoro conceded at trial that there was nothing to his pleaded case of six trusts; it was just talk and “half-baked”. The present dispute concerns one offshore trust that was set up. As is the way with offshore discretionary trusts of this nature, D8, as the trustee, had the power to change the beneficiaries. Kuntjoro reasoned that he would not have agreed to a discretionary trust like the Pride Wise Trust where the trustee could exclude him as a beneficiary. Specifically, his pleaded case is that he was unaware of the terms of the trust instrument that D1 signed on 18 December 2003 as he was not present at the signing, and that he would not have signed various documents prepared by Finch to transfer the assets in the 7 Accounts to D7 had he been informed that he could be excluded as a beneficiary.

  87. [21] I propose to deal with Kuntjoro’s pleaded disclaimers now. The extent of his knowledge and involvement go to the heart of his primary case, and for D1, these answers would provide the material for the foundation of her defences. It is important to note that the documents for D9 disclosed in court are in English. D1 would rely on Kuntjoro to deal with and manage the documentation. She speaks Mandarin and does not read and speak English. Finch does not speak Mandarin. Jocelyne Koh (“Jocelyne”), a relationship manager from D9, was present at meetings between Finch and D1 and she acted as the translator and interpreter of documents in English. She was also present at meetings involving Kuntjoro. As to the level of trust D1 had placed on Kuntjoro, her answers during cross-examination by Mr Almenoar are revealing:

  88. [22] On the evidence before this court, Kuntjoro’s contention that the Pride Wise Trust was D1’s private trust and that he was unaware of its terms (see [20] above) is untenable. His own testimony is riddled with untruths and half-truths and is contradicted by objective evidence. I find that Kuntjoro was fully aware that the Pride Wise Trust was the same offshore trust that he and Finch had discussed and that their discussions culminated in the Pride Wise Trust being set up to hold D1’s sole share in D7 on trust as part of the Pride Wise Trust’s assets. The objective evidence showed that the terms of a draft trust deed were brought to his attention in August 2003 and again in September 2003. Moreover, Finch’s file note of a meeting with D1 held in Jakarta on 18 December 2003 (“the 18 December file note”) recorded Finch confirming to D1 before she signed the trust deed that “all the clauses had been discussed in detail with [Kuntjoro]” . Jocelyne was present at this meeting as well and her call report of the meeting also recorded the same confirmation. The 18 December file note also referred to D1 being taken through page 20 of the trust deed. Page 20, which is Part C of the trust deed, has the very same information that is set out at [32] below. Put simply, I do not see how Kuntjoro’s knowledge and participation is any lessened by his absence from the 18 December 2003 meeting when D1 signed the trust deed which has the same terms as the draft trust deed.

  89. [23] Kuntjoro made reference to a meeting held in Jakarta on 26 August 2003. His evidence on this meeting is, however, unsatisfactory. In his AEIC, Kuntjoro said that he did not see any of the four documents which Finch had, in one of his file notes of that meeting, recorded as having been tabled. Neither did Finch explain those documents to him. In the witness box, Kuntjoro said that he did not attend the meeting. At trial, Jocelyne corroborated Kuntjoro’s testimony that he had only brought D1 to the meeting on 26 August 2003 but was not otherwise present at it.

  90. [24] I now come to Kuntjoro’s affidavit of 6 October 2011 filed in support of an injunction application vide Summons No 4502 of 2011 (“the 2011 injunction affidavit”). In the 2011 injunction affidavit, Kuntjoro told a different story about the meeting on 26 August 2003:

  91. When cross-examined on this paragraph, Kuntjoro claimed that he had made a mistake in paragraph 105 of the 2011 injunction affidavit.

  92. [25] However, according to Finch’s file notes, Kuntjoro was present at the 26 August 2003 meeting save for the part of the meeting concerning D1’s Channel Islands will (“the Jersey Will”), which was confidential. The meeting on 26 August 2003 in Jakarta covered three topics, and it appears that each topic was discussed one after the other. The first topic was D7, and Finch’s file note of that discussion was headed “Bright Noble Prime (“BNP”)”. The second topic that was discussed was the Jersey Will, which D1 signed at that meeting. Finch’s file note of that discussion was headed “Harianty Wibawa”. The third topic for discussion was the offshore trust that was given the working name “the Pride Wise Trust” by D9. Finch’s file note of that discussion was headed “The Wibawa Family” and recorded that “[t]he purpose of the meeting was to discuss a possible trust structure for the family”. The basic structure was for the trust to hold D7. Significantly, the third file note makes reference to Finch’s explanation on the use of a trust in combination with an offshore company (ie, D7). From the third file note, four documents were handed over to Kuntjoro for him to study. I will refer to the three file notes as “the D7 file note”, “the Harianty Wibawa file note” and “the Wibawa Family file note” respectively.

  93. [26] Jocelyne did not deny outright that the first two topics were discussed. By and large, she was did not dispute the D7 file note and the Harianty Wibawa file note. As for the Wibawa Family file note, her evidence is that the discussion on the trust was not as extensive as the file note suggested. As mentioned earlier, her overall evidence is that Kuntjoro did not attend the meeting held on 26 August 2003.

  94. [27] Counsel for Kuntjoro, Mr Ooi, even put to Finch, a subpoenaed witness, that Finch had fabricated the Wibawa Family file note:

  95. [28] Finch further maintained that the purpose of file notes was to record what took place at meetings and that file notes would be typically produced as soon as the meetings were concluded and he was back in the office. He denied that the Wibawa Family file note was made up. I prefer Finch’s testimony over that of Kuntjoro and Jocelyne for the reason that their oral testimonies on the matter are incompatible and internally inconsistent with their respective affidavits and other contemporaneous documents that they do not dispute. Let me elaborate.

  96. [29] As I see it, Mr Ooi’s contention that Finch made up the Wibawa Family file note was Kuntjoro’s way of getting around the fact that the Wibawa Family file note recorded Finch as having handed Kuntjoro four different documents for him to study. That Kuntjoro was not present at that meeting was also Kuntjoro’s way of getting around the fact that the D7 file note recorded Kuntjoro as having signed the letter appointing him the investment manager of D7. The lie in Kuntjoro and Jocelyne’s evidence – that Kuntjoro was not present at the meeting to receive any documents – is exposed by other contemporaneous documents that are not disputed by Kuntjoro and Jocelyne. These documents also point to Kuntjoro’s knowledge of the terms of a draft trust deed and a copy of the Trust Application Questionnaire. Significantly, both documents would connect Kuntjoro to the Pride Wise Trust from the outset. For the reasons explained below, I accept Finch’s three file notes as accurate recordings of what was discussed at the meeting held on 26 August 2003. As such, I find that Kuntjoro was present at the meeting save for the time he left the meeting when the Jersey Will was discussed and executed by D1.

  97. [30] The Wibawa Family file note recorded several matters, some of which were: (a) the creation of a Jersey trust to hold D7, an offshore entity owned by D1; (b) that the trust would need a name; and (c) that Finch had explained the discretionary nature of the Pride Wise Trust and the fact that beneficiaries could be added or excluded to Kuntjoro. From the same file note, Kuntjoro was also informed that he would assume the role of protector. As protector, he would have the ability to issue investment directions and be able to remove the trustee. Significantly, the same two matters (a)–(b) were covered again in a meeting held on 23 September 2003 (“the 23 September meeting”). Interestingly, Kuntjoro is not disputing the file note of the 23 September meeting (“the 23 September file note”) and, by implication, the meeting itself. Mr Ooi’s put question to Finch was that it was only at the 23 September meeting that Kuntjoro discussed the trust in detail with Finch (at [27] above). The 23 September file note reads:

  98. [31] Kuntjoro has not seriously disputed the file note of an earlier meeting held in Singapore on 19 September 2003 at D9’s offices (“19 September meeting”). This was a meeting between Kuntjoro, Jocelyne and one Ng Bee Geok (“NBG”) from D9. Significantly, this file note specifically referred to the meeting held in Jakarta on 26 August 2003. The purpose of the 19 September meeting was “to follow up on matters discussed during the previous meeting in Jakarta on 26th August 2003 … and also in relation to the banking facilities”. This file note is telling as it showed that at the meeting the discussions went into trust matters that Kuntjoro said were raised at the 26 August 2003 meeting. He was following up on them with NBG. Reading both the file note of the 19 September meeting and the 23 September file note in context, it seems to me that Kuntjoro was referring, at the 19 September meeting, to the summary of the draft trust deed which was eventually provided to him at the 23 September meeting.

  99. [32] I already mentioned that the Wibawa Family file note had recorded Finch advising Kuntjoro and D1 that the trust to be set up would need a name. In the 23 September meeting, and as the name for the trust was outstanding, Kuntjoro was reminded that D9 required a name for the trust. The point here is that D1 would have to come up with a name of her own for the trust if she wanted to use a different name. For the time being, the working name given to the offshore trust was the “Pride Wise Trust”. This working name is found in Part C of the draft trust deed that was handed to Kuntjoro on 26 August 2003. The details in Part C included information such as the name of the settlor, the names of the beneficiaries and the name of the first protector. Crucially, against the name of the trust, “The Pride Wise Trust” appears. As stated, this contemporaneous document is important as it directly connects the Jersey trust that would hold D7 to the “Pride Wise Trust” as at 26 August 2003. Moreover, printed on the cover page of the draft trust deed are the words:

  100. [33] In addition, “The Pride Wise Trust” also appears in the copy of the Trust Application Questionnaire, on its cover page as well as in section 12 which is titled “Name of Trust”. Notably, the Wibawa Family file note recorded a “[t]rust questionnaire” as one of the four documents handed to Kuntjoro and, in my judgment, this clearly referred to the copy of the Trust Application Questionnaire. Again, at the 23 September meeting, Kuntjoro was reminded “to complete the trust questionnaire that has been passed to him”. Another document that connected the Jersey trust that would hold D7 to the “Pride Wise Trust” is D9’s New Business Acceptance form that was signed by Finch and Jocelyne and submitted on 17 December 2003 to D9’s New Business Acceptance Committee for approval. The words “The Pride Wise Trust” appear immediately under the words “New Business Acceptance” on the cover page of this document. In addition, the summary of proposals in this document (which is set out in full at [46] below) is telling. The narrative there linked Kuntjoro to D7 and the Pride Wise Trust one day before D1 signed the trust deed on 18 December 2003. The working name of the trust was never changed and “Pride Wise Trust” ended up as the name of the trust created by D1 on 18 December 2003.

  101. [34] A summary of the draft trust deed was provided to Kuntjoro to assist in his understanding of the draft trust deed during the 23 September meeting. In so far as the beneficiary clauses are concerned, the summary of the draft trust deed stated the following:

  102. [35] According to clause A4 of the summary, the trustee could exclude any person as a beneficiary with the settlor’s consent only. In 2003, Kuntjoro was on good terms with his mother and she trusted him implicitly. In addition, Kuntjoro was appointed the first protector of the Pride Wise Trust from the outset and this is not a disputed fact. Whilst it is commonly within the powers of the trustees of a discretionary trust to appoint new or additional trustees or to remove trustees, in clause A9, the powers are reserved to the protector. The summary of the draft trust deed further provided:

  103. [36] Significantly, Kuntjoro’s appointment as protector of the trust would enable him to have full control over the investment of the trust fund, ie, the assets in the 7 Accounts that were eventually transferred to D7’s bank accounts. The same summary explains the protector’s powers as follows:

  104. [37] It is clear from the circumstances outlined at [35] and [36] above – Kuntjoro’s good relationship with D1, whose consent was needed to exclude a beneficiary, as well as Kuntjoro’s power as protector to remove the trustee – that there was hardly any need for Kuntjoro to object to the discretionary trust. Separately, as can be seen from the Wibawa Family file note, Finch had explained to Kuntjoro why he had provided for D1’s consent to be required prior to the addition or exclusion of beneficiaries; it was to enable D1 to determine who would be able to benefit during her lifetime. The Wibawa Family file note further states that Kuntjoro had confirmed that “this was something it was likely she would want”.

  105. [38] Thus, Kuntjoro’s hindsight argument that he would not have agreed to a discretionary trust where he could be excluded as a beneficiary by the trustee is a non-starter. That he would not have signed various documents prepared by Finch to transfer the assets in the 7 Accounts to D7 had he been informed that he could be excluded as a beneficiary is incredulous and untrue. For the sake of completeness, I also note that, despite the ongoing dispute with D1, there has been no move to exclude him as a beneficiary of the Pride Wise Trust. In fact, he received some distribution from D8 in 2012 (see [101] below).

  106. [39] Kuntjoro’s allegation that he did not know about the powers of a protector until very much later does not help his case. Whether or not Kuntjoro was aware of his powers as protector is not the point. More importantly, he was appointed as the first protector of the trust on 18 December 2003, and he was told about his appointment by Finch on the same day.

  107. [40] Kuntjoro’s statement that the family did not want to be connected with the assets in the 7 Accounts is a further point that must not be forgotten. This was the raison d'être for setting up an offshore trust in a tax haven and Kuntjoro’s claim that he was not privy to the terms of the Pride Wise Trust is arid. Suffice to say for now that he would not be adverse to a discretionary trust, as an offshore discretionary trust in a tax haven would achieve this very objective. As is the usual way with an offshore discretionary trust, the beneficiaries would not be regarded as having any direct legal rights over any particular portion of the trust fund; they only had a right to be considered when the trustees exercised their discretion. In such trusts, the paramount desire and expectation is for financial information to be kept private and confidential. The use of a discretionary trust in conjunction with an underlying company was designed to protect assets in a tax haven. This combination would interpose an additional layer of confidentiality in the chain of ownership of the trust fund. Put simply, the whole point of D1 setting up a Jersey trust was to protect the family wealth, and Kuntjoro was all for the setting up of such a trust.

  108. [41] I now turn to consider how the concerns over the assets in the 7 Accounts came about and what Kuntjoro and D1 agreed to do, and did eventually do, to protect the family wealth.

  109. Circumstances giving rise to the creation of a Jersey trust

  110. [42] It is common ground that sometime in the middle of 2003, letters were received from the Indonesian tax authorities inviting Kuntjoro, D1 and D2 to attend at their offices in Jakarta to discuss their US$-denominated assets. Kuntjoro said in the 2011 injunction affidavit that he and D1 were worried by this development. In her testimony, D1 confirmed her worry. Kuntjoro went on to explain that he and D1 formed the view that the assets in the form of money and investments in the 7 Accounts might be at risk and for that reason, the strategy was for Kuntjoro to look into the viability of an arrangement to distance the assets in the 7 Accounts from the family. It was this decision to protect the family wealth that eventually led to the creation of the offshore trust to hold D7, which was where the assets from the 7 Accounts went into, and I so hold.

  111. [43] Kuntjoro approached various banks in Singapore to ask for their advice. He described his efforts in the 2011 injunction affidavit as follows:

  112. [44] Kuntjoro said in his Statement of Claim and AEIC that he informed Finch of the following matters:

  113. (a) There were then seven bank accounts with seven different banks, in the names of the various account holders (ie, the 7 Accounts).

  114. (b) All the assets in the 7 Accounts belonged to the deceased and the account holders were his nominees.

  115. (c) The deceased died in Jakarta in January 2000.

  116. (d) The deceased did not leave a will and administration to the deceased’s estate on intestacy had not been applied for, either in Indonesia or in Singapore.

  117. (e) The family was worried as a result of the Indonesia tax authorities having called Kuntjoro, D1 and D2 for an interview regarding the 7 Accounts.

  118. (f) The family wished to place the money somewhere safe in an account which could not be traced to them.

  119. (g) Kuntjoro’s grandfather died with assets standing in his name which caused much difficulties and much dispute between Kuntjoro’s father and his siblings, including questions of estate duty.

  120. (h) Kuntjoro’s main concern was that each of the six children of the deceased should receive his or her share of the assets left by the deceased without any dispute amongst them and D1.

  121. (i) Kuntjoro wanted a simple structure for the trust to cover the above concerns, including a clause to avoid dispute amongst the members of the family.

  122. [45] According to Kuntjoro, Finch advised him that:

  123. (a) A family trust should be set up in Jersey to hold the assets in the 7 Accounts.

  124. (b) All the assets in the 7 Accounts should be transferred to a company incorporated in Jersey, which company would be owned by the trust.

  125. (c) It would take time to incorporate another Jersey company. For expediency, D7, an offshore company that was already incorporated, should be used to hold the assets from the 7 Accounts.

  126. (d) Initially, all the assets in the 7 Accounts should be transferred to BNP 16802.

  127. (e) After the assets in the 7 Accounts had been received into BNP 16802, the assets should be transferred to D7’s BNP account (BNP Paribas Private Bank Account No XX-XX688) (“BNP 688”) and recorded in D7’s accounts as a loan.

  128. (f) Finch would do all that was necessary for setting up the trust and would draft the necessary letters and send them to Kuntjoro, for those involved to sign, to put into effect what Finch had advised.

  129. (g) D9’s trust corporation in Jersey would invest and manage the family’s assets.

  130. (h) Six companies and six trusts should be established so that there could be no dispute amongst the members of the family.

  131. (i) There was no point in getting lawyers to advise because when lawyers are involved, they increase the costs of setting up the trusts and only the lawyers benefitted.

  132. (j) Once D1 agreed to the establishment of a trust, Finch would travel to Jakarta with the documents for her signature to set up the trusts.

  133. [46] As stated, Jocelyne was the relationship manager assigned to look after the accounts opened with D9. She was involved with Finch in assisting Kuntjoro and D1 in setting up the Pride Wise Trust. D9’s file notes bear out this state of affairs. For present purposes, before D1 signed the trust papers, a New Business Acceptance form was signed by both Finch and Jocelyne and was submitted on 17 December 2003 to D9’s New Business Acceptance Committee for approval. In the form’s summary of proposals, it is stated:

  134. The New Business Acceptance Committee gave its approval on the same date.

  135. [47] Kuntjoro denies that he was instrumental in setting up the Pride Wise Trust. The objective evidence before this court paints a different picture. There is overwhelming evidence, and I find that Kuntjoro was instrumental in setting up the Pride Wise Trust in that he saw through the decision to set up an offshore trust to protect the family wealth and D1 followed suit willingly. I agree with Mr Lek’s point that, in so far as the Pride Wise Trust was concerned, if Kuntjoro was not the prime mover within the family, then no one else was. D1’s evidence generally, which I accept, is that it was Kuntjoro (and not her or the Siblings) who directed everything to do with the Pride Wise Trust.

  136. [48] Kuntjoro’s oral testimony did not support his pleaded case, and it contradicted his AEIC. In addition, what Kuntjoro was saying in the witness box was also quite different from the position taken in the 2011 injunction affidavit. During the trial, the court queried Mr Ooi as to whether there was a need to amend the Statement of Claim given the apparent shift in the pleaded case arising from Kuntjoro’s oral testimony. Details of the “new case” are set out at [103] below. As it turned out, no application to amend was made.

  137. [49] It is thus not surprising that the impression given at the trial is that Kuntjoro was trying very hard in cross-examination to disassociate himself from the Pride Wise Trust despite overwhelming evidence of his knowledge, role and participation in setting it up. Kuntjoro’s denial that he did not know anything about this offshore trust since it was his mother’s private trust and was not privy to the terms of the trust deed that D1 signed on 18 December 2003 is untrue. Whilst he was not present at the signing, it was Kuntjoro who had arranged for D1 to meet Finch and Jocelyne who had travelled to Jakarta for the purpose of getting D1 to sign the trust deed for the Pride Wise Trust. Prior to that, he was already apprised of the terms of the trust deed on the occasions and for the reasons recounted at [20]–[40] above. In addition, after the signing was over, Kuntjoro joined the group for lunch and was informed by Finch that he was appointed as protector of the Pride Wise Trust. This appointment was something planned back in August and September 2003 and it was consistent with the discussions of the offshore trust structure. Plainly, the shift in the version of the events was a manifestation of Kuntjoro’s attempt to disassociate himself from the Pride Wise Trust, and I so hold. Whilst inconsistencies in his testimony could be due to memory lapses since the matters happened more than ten years ago, it was certainly not the sole reason. I view his inconsistencies as the result of his tendency to orientate his evidence in a way which might perhaps have been of assistance to him.

  138. Trust structure: Use of an offshore trust in conjunction with an underlying company

  139. [50] Counsel for D1 asked Finch to explain the use of a trust in combination with an underlying company to create the necessary debt and equity funding for the trust. Kuntjoro and D1’s objective to protect the family trust was achieved by approaching it as estate planning for D1 and the offshore trust would hold D7:

  140. D7 (ie, Bright Noble Prime)

  141. [52] As the new beneficial owner of D7, D1 signed three documents on 26 August 2003. This is apparent from the D7 file note. The first document is the “Company Management Application Questionnaire (Bright Noble Prime Limited)”. This was an application to appoint D8 to manage D7. At section 5 of the form, the beneficial owner of the share in D7 was stated as D1. The declaration of beneficial ownership in section 11 of the form is as follows:

  142. [53] The second document that was signed on 26 August 2003 was a document titled “Form 3”. It appointed D8 to manage D7. The third document is a letter appointing Kuntjoro as the investment manager of D7. This letter appeared to have been amended for Finch subsequently asked for a new letter to be signed by D1 and Kuntjoro on 2 September 2003. Nothing turns on this development except that it testifies to the fact that Kuntjoro was at least at the meeting held on 26 August 2003 when the first letter of appointment was signed.

  143. [54] Before moving on, I pause here to make two points. First, the declaration of beneficial ownership at [52] above is in language exactly the same as the declaration of beneficial ownership in the Trust Application Questionnaire. Second, Kuntjoro was at the meeting (see my finding at [29] above) when this declaration in the Company Management Application Questionnaire was signed and he would have known that this declaration of beneficial ownership concerned assets that would be transferred as a loan to D7. In addition, as Mr Lek pointed out, the trust structure was predicated upon D1 being the beneficial owner of the assets loaned to D7. D7 was a shell company when D1 took it over and Kuntjoro knew that the same assets would be settled in D7 as he was going to be the investment manager of D7. All in all, I find that Kuntjoro was content to allow that declaration to be made, whether or not it was accurate. More pertinently, D7 was the underlying company that was to be used in conjunction with the offshore trust for the protection of the family wealth.

  144. [55] D7 has two bank accounts:

  145. (a) BNP 688; and

  146. (b) HSBC SA Bank Account No XXXX-XXX555-0001 (“HSBC 555”).

  147. [56] As Finch explained, the approach was for assets held in the various bank accounts to be transferred to BNP 16802, which was held in the names of Kuntjoro, D2 and D3, and thereafter for the same account holders to transfer the assets to BNP 688. Paperwork was then prepared and signed at that stage for the transfer. The paperwork confirmed that the transfer of the assets from BNP 16802 to D7 was to be treated as a payment to Dl and a loan between D1 and D7. The letters in question are set out at [61] below.

  148. [57] By an agreement dated 26 August 2004 between D1 and D7, the transfer was recorded as a loan from D1 to D7 and thus recognised in D7’s books of accounts. On 31 August 2004, D1, D7 and D8 executed a Deed of Assignment under which D1 assigned all of her rights and benefits in the loan to D8 to hold subject to the Pride Wise Trust. On or about 27 December 2004, D1 transferred her ownership of the sole share in D7 to D8 to be held subject to the terms of the Pride Wise Trust. In other words, D8 was to hold the sole share in D7 on trust as part of the assets of Pride Wise Trust. D8 accepted the sole share in D7 as an addition to the assets of the Pride Wise Trust on 29 December 2004.

  149. [58] The transfer of the assets from the 7 Accounts took place around September 2003 to October 2004. According to David Shute (“Shute”), a director of D8, there were two other injections totalling US$143,000 in 2006. First, on 6 February 2006, a sum of US$114,500 was transferred to D7 from a joint account held in the names of Kuntjoro and D2 to D6. This seems to be from HSBC 419. Second, on 2 March 2006, a sum of $28,500 was transferred to D7 by D4. On 14 March 2006, a further Deed of Assignment was entered into between D1, D7 and D8. This deed was to assign an additional amount of US$109,053.29 of debt owed by D7 to D1. This represented the balance of the interest accrued on the loan that had been omitted from the valuation of the loan in the earlier Deed of Assignment.

  150. Paperwork

  151. [60] I begin with the first category which is a series of letters required as a precursor to the debt and equity funding that Finch had talked about. The plan was for assets in the various jointly-held bank accounts to be deposited in BNP 16802 initially and thereafter transferred to D7. The discussion was recorded in the Wibawa Family file note in the following manner:

  152. [61] The letters are as follows:

  153. (a) The first letter is undated and addressed to D9 and purportedly signed by Kuntjoro, D2 and D3. It directed D9 to transfer all assets and liabilities in BNP 16802 to D7’s BNP 688.

  154. (b) The second letter is dated 12 August 2003 and addressed to D7 and purportedly signed by Kuntjoro, D2 and D3. The letter directed D7 to treat the transfer of monies from BNP 16802 as a payment to D1, to treat such payment as a loan in the books of D7, and to evidence such loan with an appropriate deed of indebtedness.

  155. (c) The third letter is undated and addressed to D7 and purportedly signed by Kuntjoro, D2 and D3 and is substantially similar to the second letter. It directed D7 to treat the transfer of all assets and liabilities from BNP 16802 as a payment to D1, to treat such payment as a loan in the books of D7, and to evidence such loan with an appropriate deed of indebtedness.

  156. (d) The fourth letter is a letter dated 12 August 2003 and addressed to the Nominee and purportedly signed by Laniwati. The letter instructed the Nominee to hold the sole share in D7 on trust for D1 and to issue a new declaration of trust of this share in favour of D1.

  157. (e) The fifth letter is an undated letter addressed to D9 and purportedly signed by D1. This letter appears to have been faxed on 13 August 2003. It transferred “free of payment all the equities and bonds” in BNP 16802 to D7’s BNP 688.

  158. [62] Shute explained in his affidavit filed in proceedings in Jersey the reason for the third letter which is substantially similar to the second letter. It seems that the third letter had to be signed by Kuntjoro, D2 and D3 due to the fact that the second letter may have been signed prior to the transfer of the beneficial ownership of D7 from Laniwati to D1. D9’s file note of a meeting of 14 July 2006 intimates broadly the same thing.

  159. [63] As Shute explained in his AEIC, D8 received by fax a copy of the third letter on 8 October 2003. As intended, there was no actual payment to D1 or payment in turn by D1 to D7. I have already mentioned at [57] above the loan agreement between D1 and D7 and the deed that assigned the indebtedness to D8. I should mention here that the loan agreement dated 26 August 2004 was for the principal sum of US$27,842,430.24. This represented the amount transferred from BNP 16802 to D7’s BNP 688 alone. Separately, other transfers were also made or alleged to be made (see [64] below).

  160. [64] Kuntjoro’s Statement of Claim states that between August 2003 and 2004, the accounts with HSBC Select Bank, Bank Brussels Lambert, Merrill Lynch and Salomon Smith Barney (ie, S/Nos 3-6 in the table at [9] above) were closed and their assets in the form of money and investments were transferred to BNP 16802. All the assets in BNP 16802 were then transferred to D7’s BNP 688. The value of this transfer was approximately US$27,842.430.24. In or around September 2003, assets in the form of money and investments in HSBC 419 (ie, S/No 2 in the table at [9] above) were transferred to D7’s HSBC 555. The value of the assets transferred was approximately US$5,821,934.80. This transfer does not appear to be disputed by D1. In addition, Kuntjoro also pleads that there were transfer(s) made from the Bank of China accounts (ie, S/No 7 in the table at [9] above).

  161. [65] I now come to the second category which is the Trust Application Questionnaire for the Pride Wise Trust which contained the following declaration:

  162. [66] This declaration of beneficial ownership is a big issue in this dispute. Kuntjoro argues that this declaration is false as D1 does not own the assets that were settled in the Pride Wise Trust. D1 has taken a contrary position. For present purposes, it is my view that, at the material time on 18 December 2003 when D1 signed the Trust Application Questionnaire, Kuntjoro was content to allow that declaration to be made, whether or not it was accurate. As I see it, this declaration of beneficial ownership was the means to the end which was the protection of the family wealth. The treatment to be applied to the transfer was a payment by the joint account holders to D1, who was giving a loan to D7. As lender, she had all the rights attaching to the loan. Consistent with Kuntjoro being content with this declaration is Finch’s evidence that Kuntjoro had gave him the understanding that the assets belonged to D1. I also note that in D9’s file note of a meeting that had taken place on 14 July 2006, it is recorded, in the context of matters which I need not, for present purposes, be concerned with, that Kuntjoro had previously represented to D2 that the assets in BNP 16802 belonged to D1.

  163. [67] Notably, Kuntjoro was or ought to have been aware of the declaration of beneficial ownership as it was worded in the same manner as the declaration in the Company Management Application Questionnaire D1 signed on 26 August 2003 (see [52] above). Furthermore, the declaration of beneficial ownership in the Trust Application Questionnaire was not a last minute inclusion that Kuntjoro knew nothing about even though he was not present at the signing of the Trust Application Questionnaire on 18 December 2003. The point here is that on 26 August 2003, he was given a copy of the Trust Application Questionnaire to study. This copy contained the same declaration of beneficial ownership as the version that D1 signed on 18 December 2003. I also mentioned earlier that at the 23 September meeting, Kuntjoro was reminded “to complete the trust questionnaire that has been passed to him”. Moreover, I also note that section 6(b) of the Trust Application Questionnaire and the copy thereof refer to “[t]he entire interest of [D1] in [D7]”. Likewise, section 9 of both documents state that “[D7] has been established and will be settled into the trust”.

  164. [68] I now come to the third category which is the Jersey Will. This was executed on 26 August 2003 to dispose of assets situated in Jersey. Kuntjoro knew about the Jersey Will from Jocelyne and from the lawyer’s bill rendered for work done in relation to the preparation of the Jersey Will. He knew why the Jersey Will was needed as the assets in the 7 Accounts would be transferred to D7 and D1 was to be the owner of D7. At the meeting of 26 August 2003, Finch first dealt with D1’s ownership of D7. After that was over, Finch next moved on to deal with the Jersey Will. The Harianty Wibawa file note recorded that this part of the meeting on 26 August 2003 was to deal with the Jersey Will “as the same relates to [D1’s] interest in [D7]”. Simply put, the Jersey Will was a stop-gap measure to deal with the interim period before the Pride Wise Trust was perfected. As Finch explained at trial, the purpose of the Jersey Will was to deal with the contingency of D1 passing on before assigning her interest in D7 to the Pride Wise Trust. Although Kuntjoro was not privy to the terms of the Jersey Will, he was aware of its purpose, and I so hold.

  165. [69] Subsequently, the Jersey Will was the basic document that Finch used to prepare D1’s letter of wishes. This is evident from his file note for the 18 December 2003 meeting, and the relevant text is set out at [100] below.

  166. [70] The different paperwork represented the many components of the trust structure such as D1 taking over D7, the change of the ownership of D7 from Laniwati to D1, the requisite debt and equity funding for the trust fund and finally the establishment of the trust to hold D7. Conceptually, the use of the offshore trust in conjunction with D7 was for the objective of protecting the family wealth. Both Kuntjoro and D1 agreed to and participated in each step of the process. Mr Lek’s argument is that the 1996 Will is irrelevant to the present case. Kuntjoro, having agreed to set up an offshore trust, should not be allowed to sue D1 in a multifaceted way to recover his inheritance under the 1996 Will. Indeed, this is really what this case is about. To use a simple analogy, two persons agreed to take cash out from one “drawer” to put it into another “drawer” that is under the lock and key of a third party who has the discretion to decide as and when to unlock the drawer to make payment. Can there be recourse by one against the other for putting the cash in the second drawer? Mr Lek says say no.

  167. [71] The administration of the Pride Wise Trust went on smoothly. Kuntjoro as the first protector of the Pride Wise Trust made investment decisions on behalf of the Pride Wise Trust. He was also the investment manager of D7. Prior to late 2005, he did not take issue with the ownership of the funds used to settle the Pride Wise Trust. Cracks in the relationship between Kuntjoro and D1 began appearing in late 2005. It has been said that he fell out with D1 over investment matters. There could have been other reasons but I need not concern myself with the cause(s) of the breakdown in the relationship. Suffice it to say that the serious fallout is not disputed. Kuntjoro left the Wibawa family home in Indonesia in late 2005. He subsequently relocated to Singapore in March 2006 and he continues to reside here. He has been estranged from D1 since late 2005.

  168. [72] It is not necessary to go into the details of what each side did after the fallout. As an illustration of the state of affairs, in September 2005, Kuntjoro made general inquires as to what implications there would be where the existence of a will was withheld; and in October 2005, D1 wanted Kuntjoro to be removed as the protector of the Pride Wise Trust. D8 learnt of the family’s dispute towards the end of October 2005. In November 2005, Kuntjoro started asking D9 about the identity of the beneficial owners of BNP 16802. He wrote to D9 on 7 November 2005 and D9 replied on the same day saying that “the account holders (beneficiaries) of [BNP 16802] are [Kuntjoro], [D3] and [D2]”.

  169. [74] Kuntjoro commenced the present suit on 21 September 2011 against D1, the Siblings, and D7 to D9.

  170. Kuntjoro’s position in this action

  171. [75] Kuntjoro’s primary case is that the assets in the 7 Accounts belonged to the deceased as the source of funds originated exclusively from his business. The account holders jointly-held the assets for the benefit of the deceased during the deceased’s lifetime. After the deceased’s death, the assets (ie, estate assets) continued to be held by the account holders on trust for the estate until the estate assets were transferred to D7. D1’s declaration of beneficial ownership of the assets was untrue; D1 had made used of estate assets that did not belong to her to set up the Pride Wise Trust. In so doing, D1 acted for her own personal advantage in breach of her duty as executrix and constructive trustee. Kuntjoro’s claims that D7 to D9 had knowingly assisted in these breaches.

  172. [76] Kuntjoro’s alternative position is that the account holders held the assets in the 7 Accounts on trust for themselves in equal shares (“the Account Holders’ Trust”).

  173. [77] To this end, Kuntjoro has tabulated two alternative methods of division:

  174. Table 1: Division pursuant to the 1996 Will

  175. Party

  176. Percentage (%)

  177. Kuntjoro

  178. 15

  179. D1

  180. 50

  181. D2

  182. 15

  183. D3

  184. 5

  185. D4

  186. 5

  187. D5

  188. 5

  189. D6

  190. 5

  191. Total

  192. 100

  193. Table 2: Division pursuant to the Account Holders’ Trust

  194. Party

  195. Percentage (%)

  196. Kuntjoro

  197. 24.29

  198. D1

  199. 4.93

  200. D2

  201. 24.29

  202. D3

  203. 17.96

  204. D4

  205. 9.51

  206. D5

  207. 9.51

  208. D6

  209. 9.51

  210. Total

  211. 100

  212. [78] Kuntjoro is also pursuing other miscellaneous claims such as the return of a US$35,000 investment and an account and inquiry pursuant to the wrongful closure of bank accounts. He also alleges that four disparate sums of money were dissipated by D1 in breach of trust:

  213. (a) AUD$403,968.97 on 16 July 2004 from HSBC 419;

  214. (b) US$424,880.91 on 14 July 2005 from BNP 688;

  215. (c) US$35,000 on 7 October 2005 from HSBC 419; and

  216. (d) US$136,102.87 on 14 November 2005 from HSBC 419.

  217. [79] Finally, Kuntjoro has asked for a whole host of declaratory orders.

  218. The Account Holders’ Trust

  219. [80] I propose to deal with Kuntjoro’s alternative position first as it is easily disposed of. Kuntjoro has not put forward the basis, legal and factual, for his assertion that the account holders held the assets in the form of money and investments in the 7 Accounts on trust for each other. As such, he is unable to substantiate his claim. The accounts with which this contention is concerned were in the joint names of the deceased, Kuntjoro, D1 and the Siblings. It is Kuntjoro’s case that the funds in these accounts were provided exclusively by the deceased from his business. Assuming that to be so, Kuntjoro still has to establish that the banking arrangement (ie, the jointly-held bank accounts) manifested the deceased’s intention to give the assets to the account holders in equal shares. Notably, Kuntjoro proffered no reasons for the joint names of these bank accounts. D1, however, explained that it was necessary to have funds outside of Indonesia because of the socio-political situation in those days. For prudence and for the sake of convenience, the thinking then was for the Wibawa children to have access to the assets in the accounts in Singapore should the parents be unable to leave Indonesia or should something untoward happen to the parents.

  220. [81] Even though the account opening documents declared the account holders as the beneficial owners of the bank accounts, the position is rebutted by countervailing evidence to the contrary. First, it is a question of the intention of the deceased in providing the funds whether the account holders were to take the funds beneficially or on trust, and if on trust, what type of trust. There is no evidence that the deceased during his lifetime gave away his beneficial interest in the assets in the proportion that accorded with the number of account holders to each bank account. Neither is there evidence to even suggest that the deceased, via the jointly-held bank accounts, created a settlement or trust of the nature pleaded by Kuntjoro (ie, a “constructive / implied / bare trust”). Second, Kuntjoro did not raise any presumption of advancement in his pleadings. Third, the countervailing evidence is that the deceased and D1 retained control of these accounts through the powers of attorney granted to them. The undisputed evidence is that the named account holders did not, for the most part, operate the accounts for their own purposes. Kuntjoro’s own evidence is that at all material times during the deceased’s lifetime, all withdrawals from the accounts were made by and for the benefit of the deceased alone.

  221. [82] On Kuntjoro’s case that the funds for these accounts were provided exclusively by the deceased from his business, there is, as regards the assets held in these accounts, a presumption of a resulting trust in favour of the provider of the assets. This resulting trust which arises by operation of law is not displaced in this case. As I said, a presumption of advancement has never been and is not Kuntjoro’s pleaded case. On the law on resulting trusts and the presumption of advancement, see generally Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048; Lau Siew Kim v Yeo Guan Chye Terence and another [2008] 2 SLR(R) 108; and, more recently, Su Emmanuel v Emmanuel Priya Ethel Anne and another [2016] SGCA 30.

  222. [83] I now turn to Kuntjoro’s primary case that the assets in the 7 Accounts were estate assets.

  223. Kuntjoro’s primary case on estate assets

  224. [84] Kuntjoro claims that the assets in the 7 Accounts were held by the account holders on trust for the deceased during his lifetime and that, on the deceased’s death, the assets were held by the account holders on trust for the deceased’s estate. The trust averred to in his pleadings was a “constructive / implied / bare trust” for the benefit of the deceased and/or his estate. In my view, the characterisation of the trust in the pleadings as a constructive trust, implied trust or bare trust is unsubstantiated. There is nothing in the pleadings and Kuntjoro’s AEIC that could suggest that by having the 7 Accounts in the names of his family members, the deceased had consciously sought to establish the type of trust alleged. On principle, the type of trust that could arise by operation of law is a resulting trust in favour of the provider of the funds.

  225. Origin of the funds

  226. [85] As stated, Kuntjoro’s position is that the origin of the funds was derived exclusively from the deceased’s business as a sole proprietor, and as such, the assets in the 7 Accounts belonged to the deceased during his lifetime. Kuntjoro called Jocelyne to testify as to the ownership of the assets. In this regard, Jocelyne’s evidence was that she was the deceased’s relationship manager and had dealt with him through the years in respect of his business transactions. From their past association, she formed the view that the assets in BNP 16802 belonged to the deceased.

  227. [86] In contrast, Mr Lek submits that the assets were beneficially owned by both the deceased and D1 as evidenced by the powers of attorney that were given to them to operate the bank accounts by the account holders. This arrangement was on the basis that D1 had contributed to the deceased’s business, which was referred to as a “partnership” between the deceased and D1. I have no doubt that D1 would have assisted the deceased in the sewing thread distributorship business. Besides D1’s testimony on her involvement in the business, Kuntjoro conceded that D1 had helped the deceased in the deceased’s business, notwithstanding that she did not always work full time in the business throughout the marriage.

  228. [87] Mr Lek’s use of the word “partnership” seeks to convey a sense of joint and close cooperation between the spouses in the business. No legal connotation was intended since the deceased’s business, PD Ampuh, was a sole proprietorship. More to the point on the joint cooperation that was akin to a partnership between spouses, Firma Ampuh – an entity in which the deceased and D1 were joint managing partners – carried on an import and export business whereas PD Ampuh was in retail sales. From this perspective, I do not regard Mr Lek as intending to go so far as to elevate D1’s case to one of a partnership in the legal sense, such that it would entitle D1 to half the share of the partnership assets if it was an equal partnership (eg, under s 24(1) of the Partnership Act (Cap 391, 1994 Rev Ed)). It is worth nothing that D1’s pleaded case of a “common understanding and intention” and the rights claimed pursuant thereto is only triggered upon the deceased’s death and that is quite the opposite of the notion of partnership in the legal sense of the word. Besides, D1’s pleaded case is untenable. First, the legal basis of the alleged common understanding and intention was not proffered. Second, what was said about how and where this common understanding came about was vague and uncertain. If this common understanding was reached before the 1996 Will, why was it not manifested in the 1996 Will? Instead, clause 4 deals which with assets wherever located was included in the 1996 Will. For these reasons, I hold that there was no common understanding or intention as claimed. Despite this conclusion, however, there is, at the very least, D1’s explanation as to why the jointly-held accounts were opened (see [80] above), and that assists the court in reaching the conclusion that the funds for these accounts were derived from the business as a whole. Significantly, it is not D1’s case that she is entitled to a share of the funds. Her case under the alleged common understanding and intention is that she would take everything upon the deceased’s death.

  229. [88] Accordingly, I find, on the balance of probabilities, that the assets in the 7 Accounts were estate assets. However, this conclusion does not decidedly put to an end to the disputes in this action in favour of either Kuntjoro or D1. The intervening events in 2003 are pivotal and I have covered some of the material evidence and have made findings of fact earlier in this judgment. I now address the legal and factual consequences of the parties’ actions. Essentially, I will examine how the parties’ decision and actions impacted the rights and obligations of D1 and what new rights and obligations have come about, in particular, whether the parties appreciated or knew that distribution to the beneficiaries would be from the trustee of the Pride Wise Trust. D1 has dealt with these changes as part of her defences to Kuntjoro’s claims against her as executrix of the 1996 Will and as constructive trustee of the assets transferred.

  230. Settlement of estate assets in a Jersey trust

  231. [89] D1’s pleaded case is that Kuntjoro agreed to the setting up of the Pride Wise Trust; he was instrumental in setting up the Pride Wise Trust and was the person who had proposed to D1 the structure of the offshore trust narrated at [50] to [70] above. D1 had accepted Kuntjoro’s proposal and went ahead and signed all the paperwork needed to set up the Jersey trust to hold D7 (ie, the Pride Wise Trust). It is also D1’s case that after Pride Wise Trust was set up by D1 as settlor, Kuntjoro carried out his appointment as the protector of the Pride Wise Trust without protest and that he only took issue with the assets in D7 after the breakdown of his relationship with D1.

  232. [90] I will refer to the whole exercise, with Finch as the wealth planner, as “the protection-of-the-family-wealth initiative”. It is common ground that D1 was in mourning for a long period of time after the deceased’s death. Thus, the question of ownership or distribution of the assets held in the various bank accounts in Singapore was not brought up by anyone in the family. During the period of mourning, the 1996 Will was not disclosed by D1 and any expectation of inheritance would be on intestacy. The next major development was the decision to protect the family wealth (ie, the protection-of-the-family-wealth initiative). Once the decision was made to go ahead, positive steps were taken to place the assets in a tax haven and to set up an offshore trust. Broadly speaking, the implementation of the protection-of-the-family-wealth initiative saw D1 taking over the ownership of D7, the creation of debt and equity funding for the Jersey trust that involved the series of letters to transfer the assets in the 7 Accounts to D7 and the signing of these letters by Kuntjoro, D2 and D3. Significantly, Kuntjoro does not disavow the transfers and his counsel, Mr Ooi, clarified at the trial that Kuntjoro accepts the transfer instructions signed in August and October 2003 and that Kuntjoro has no quarrel with those transfers which were described as “perfect”. Kuntjoro’s approach in separating the transfers to D7 from the Pride Wise Trust contradicts the overwhelming evidence before this court. The entire approach was to use the offshore trust in conjunction with an underlying offshore company to protect the family wealth, and Kuntjoro and D1 agreed to and did set up the Pride Wise Trust.

  233. [91] The upshot of implementing the protection-of-the-family-wealth initiative, which was, at all material times, the overarching consideration of Kuntjoro and D1, is that any distribution of the family wealth would come from D8 as the trustee of the trust settled by D1 (ie, the Pride Wise Trust) rather than by the rules of intestacy or by the 1996 Will. It is significant that D1’s other children have not asked for D1 to administer the 1996 Will and make distributions thereunder as executrix. I find that Kuntjoro appreciated that by setting up the offshore trust with assets from the 7 Accounts, henceforth, distributions to beneficiaries would be from the trustee of the offshore trust. Furthermore, Kuntjoro accepted the position from the outset until he fell out with D1. Let me elaborate.

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