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Grounds publishedDecided 14 Jun 2016
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General Division of the High Court

Lai Hoon Woon (executor and trustee of the estate of Lai Thai Lok, deceased) v Lai Foong Sin and another

[2016] SGHC 113Case no. Suit No 392 of 2012/L

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  1. Introduction

  2. [1] Lai Thai Lok (“the Deceased”) succumbed to lung cancer on 25 June 2003 at the age of 73 leaving behind his wife Mdm Liew Kim Eng (“Mdm Liew”), who is the 2nd Defendant, and their seven adult children, of whom the Plaintiff and the 1st Defendant were two. Significantly, on 20 June 2003, five days before his death, the Deceased executed a will (“the Will”) which addressed comprehensively the distribution of his assets to his beneficiaries. The Will was drafted by a solicitor, Ms Anne Choo (“Ms Choo”), who was retained by the Deceased on or about 13 June 2003 primarily for that purpose. Given that the Deceased was ravaged by the final stages of terminal lung cancer at the time of preparation and execution of the Will and passed away shortly thereafter, it was not surprising that those who were least provided for thereunder mounted a strident challenge to its validity. The Will was the subject of intense scrutiny in the evidentiary hearing before me with the gravamen of the complaint being the alleged suspicious circumstances surrounding its execution. Allegations that the Deceased lacked testamentary capacity and the execution of the Will was procured by undue influence flew thick and fast from the Defendants. The barbs were directed principally at the Plaintiff but two of his siblings, Lai Foong Chong (“Foong Chong”) and Lai Poh Lin (“Poh Lin”) were not spared criticism. Needless to say, the sums that the 1st Defendant and Mdm Liew were each bequeathed under the Will (they both received the same amount) paled in comparison to the bequests to the other beneficiaries.

  3. [2] The Deceased was not spared. Mdm Liew trained her sights squarely on him, alleging that he had dishonestly and surreptitiously transferred significant sums of monies, to the tune of $404,225.19, from bank accounts in their joint names to bank accounts in his sole name several months before his death.

  4. [3] The challenge to the Will provided the setting for an equally significant second battlefront – whether the assets distributed under the Will were in fact the Deceased’s. At stake was ownership of two Housing Development Board (“HDB”) shop units and the businesses that were operated on the premises. Widely divided and wildly divergent positions were taken on whether these assets were in fact the Deceased’s, with the 1st Defendant laying claim to one shop unit and business, and Mdm Liew laying claiming to both shop units and the businesses. The heated discord over the Will, and these assets and businesses polarised the Lai family. I saw a family torn asunder with wife pitted against husband, mother against children, father against children and siblings against each other, each doggedly sticking to entrenched positions. Unfortunately the principal protagonist, the Deceased, was not able to present his position or defend his turf and conduct in the face of numerous allegations that placed him in their cross-hairs. It was not pleasant viewing. This is the pith of this unfortunate dispute.

  5. Background

  6. The parties, the players, the properties and the businesses

  7. [4] Before I trace the background, it would be useful to begin by identifying the parties, and the properties and businesses that are at stake in this action. The Plaintiff is the executor and trustee of the estate of the Deceased appointed under the Grant of Probate of the Will obtained on 8 September 2006 (“the Grant”).

  8. [5] Mdm Liew is the Deceased’s wife and his widow. At the time of the evidentiary hearing, she was 79 years old. The 1st Defendant is the second child and son of the Deceased and Mdm Liew.

  9. (a) Lai Khian Hin (“Khian Hin”);

  10. (b) the 1st Defendant;

  11. (c) Foong Chong;

  12. (d) Lai Siew Lian (“Siew Lian”);

  13. (e) Poh Lin;

  14. (f) Lai Pick Lian (“Pick Lian”); and

  15. (g) the Plaintiff.

  16. [7] Mdm Liew and all the children bar Khian Hin and Pick Lian testified. Fong Chong and Poh Lian were called as witnesses by the Plaintiff. Siew Lian was called as a witness by Mdm Liew. The 1st Defendant called Dr Ong Kim Kiat (“Dr Ong”), a cardiothoracic surgeon from Gleneagles Hospital (“Gleneagles”) who treated the Deceased between 3 and 5 June 2003 for severe breathlessness, as his witness. In addition, Mdm Liew called one Tan Hwee Kheng, a vendor to one of the businesses in question, whose evidence was not material in my view.

  17. [8] Two properties and the businesses that were operated thereon are critical to the present action. The first property is a shop unit at Block 221, Boon Lay Place #01-130 Singapore 640221 (“the Boon Lay Property”) which was initially leased by the Deceased from the Jurong Town Corporation (“the JTC”) sometime in 1978 on a month-to-month tenancy. Subsequently, on 26 December 1985, the 1st Defendant was added as co-tenant of the lease, with Khian Hin’s name added soon after. By an agreement to lease dated 30 June 1993, the Boon Lay Property was purchased from the HDB (the HDB having taken over ownership from the JTC) in the joint names of the Deceased and the 1st Defendant only as tenants-in-common, with their respective shares being 51% and 49%.

  18. [9] The business that operated from the Boon Lay Property carried the name Lokyang Department Store (“the Boon Lay Shop”). The Boon Lay Shop was registered by the Deceased as a sole proprietorship in his name on 16 March 1978, at about the time the Boon Lay Property was leased from the JTC. On 17 December 1985, Khian Hin and the 1st Defendant were added as partners of the Boon Lay Shop.

  19. [10] The second property is a shop unit located at Block 210, Bedok North #01-733 (“the Bedok Property”). It was leased from the HDB by the Deceased in 1979. At about that time, the Deceased registered a sole proprietorship in his name. It carried the name Loyang Department Store (“the Bedok Shop”). Sometime in 1992, the HDB offered the Bedok Property for sale to the Deceased. Instead of purchasing the same, the Deceased decided to make an immediate profit by flipping the property. He assigned his interest in the Bedok Property to one Lim Chi Beng (“Mr Lim”) for $750,000. As a result, the Bedok Shop ceased operations.

  20. [11] There is disagreement over the ownership of the Boon Lay Property and Shop, the Bedok Property and Shop, and the proceeds of sale of the Bedok Property. While many of the facts are hotly disputed with widely polarised positions, there are some facts which are undisputed or indisputable. I shall recite them in a chronological manner starting from when the Deceased and Mdm Liew met and ending with the commencement of these proceedings.

  21. The background facts

  22. 1954 to 1977

  23. [12] The Deceased met Mdm Liew when he was working for her mother as an apprentice tinsmith in the early 1950s. Mdm Liew was also working for her mother at that time. The relationship blossomed and in 1954, they married. Mdm Liew was then 18 years old.

  24. [13] After working in Singapore with “Carrier” and in Penang with a company called “Yo Li” maintaining air-conditioners, the Deceased eventually settled with the family in 1959 in an area then known as 15th Milestone, Jurong. By that time, the family had grown by three with the Deceased and the Mdm Liew having had the first three of their children. To help care for the children, the Deceased’s father moved in. Four more children were born while the family was living at 15th Milestone.

  25. [14] The Deceased was a businessman with a strong entrepreneurial streak. He started the first of his businesses, a tinsmith business, shortly before the family moved to 15th Milestone. The business continued thereafter at what was then known as 16th Milestone, Jurong. The business was named “Yong Seng Huat” in 1959. A small farm located at the back of the family’s residence in 15th Milestone was started in 1961. On this farm, vegetables were grown and livestock such as poultry and pigs was reared. Mdm Liew asserted that she owned and managed the farm. On the contrary, the Plaintiff asserted that the Deceased owned the farm and it was his grandfather who managed it. This difference of views is not significant.

  26. [15] Mdm Liew also asserted that she ran a small shop at the front of the home which she used to canvass orders for Yong Seng Huat. Apart from canvassing orders, Mdm Liew alleged that she delivered articles to customers of Yong Seng Huat on a bicycle. There is also disagreement on these allegations, which again is not material.

  27. [16] A resettlement scheme was implemented by the Government in Jurong in 1968, resulting in the closure of Yong Seng Huat. The resettlement scheme also affected the family home in 15th Milestone. The family and the Deceased’s father relocated to a HDB rental unit in Toa Payoh in 1969. At about that time, as a result of a disagreement with the Deceased, Mdm Liew left home and stayed away from the family for about a year. The Deceased’s father helped care for the children during her absence. Allegations of improper association were made. It would seem that the relationship between the Deceased and Mdm Liew was not a particularly calm one.

  28. [17] While at Toa Payoh, Mdm Liew operated a stall at a canteen in a school in the vicinity.

  29. [18] By that time, the Deceased had started a new business called Yong Hup Seng Metal Works (“Yong Hup Seng”) in Jalan Alsagoff which handled the installation of air-conditioner ducting systems. Yong Hup Seng proved to be a big success between 1968 and 1976 when it employed as many as 50 workers and was ranked in the top three contractors in that sector in Singapore. Big projects were undertaken by Yong Hup Seng and it was common ground that the Deceased made a lot of money during that period. The 1st Defendant joined the business in 1977 after completing his National Service.

  30. [19] 1976 brought some misfortune to the Deceased and Yong Hup Seng. A disagreement between the Deceased and his two partners resulted in the latter leaving the business. Though the Deceased continued operating Yong Hup Seng, these departures precipitated a significant loss of business and a consequent shrinking of the workforce. The Deceased started Thai Lok Engineering (“Thai Lok”) on 1 July 1977 – also an air-conditioning ducting business. The 1st Defendant assisted the Deceased in Thai Lok until 1979 when he was instructed to assist in the operations of the Bedok Shop. In 1978, Thai Lok and Yong Hup Seng had between 8 and 10 workers. It appears that Thai Lok had several air-conditioning projects on hand between 1977 and 1978. In particular, a substantial project for the Singapore Airport Terminal Services was secured in 1978.

  31. [20] 1976 was also the year when the family moved from Toa Payoh to a flat in Ang Mo Kio purchased from the HDB. Mdm Liew started selling food from the flat to construction workers who worked in the vicinity. Subsequently, she took up a stall at a coffeeshop in Ang Mio Kio from which she ran a fishball noodle and laksa shop. Some of the younger children appeared to have assisted her in running the stall. The stall ceased operations when Mdm Liew sold it. Following the sale, she became involved in the Boon Lay Shop.

  32. [21] The Deceased was a feisty man. He did not take the resettlement of Yong Seng Huat lightly. He engaged the Government in protracted and intensive negotiations for compensation arising from the said resettlement. In 1978, after nine years of trying, his efforts bore fruit. The JTC offered him the Boon Lay Property on a month-to-month tenancy so that he could start a new business in place of the displaced Yong Seng Huat. This saw the birth of the Boon Lay Shop.

  33. 1978 and the Boon Lay Property and Shop

  34. [22] The Boon Lay Property was taken on a month-to-month lease from the JTC in 1978. The tenancy was in the Deceased’s sole name. At around that time, on 16 March 1978, the Boon Lay Shop was registered by the Deceased as a sole proprietorship in his name. The shop was a typical neighbourhood departmental store.

  35. [24] The Boon Lay Shop was initially managed by Mdm Liew and Foong Chong. Foong Chong had just completed his national service then. Some of the other children such as Siew Lian and Pick Lian helped out. The 1st Defendant was working in Thai Lok under the Deceased at that time. When business at the Bedok Shop commenced in 1979, Foong Chong moved over from the Boon Lay Shop. Thereafter, the day-to-day operations of the Boon Lay Shop were managed by the 1st Defendant and Mdm Liew, with the other children helping out.

  36. [25] There is controversy over whether the Deceased was involved at all in the Boon Lay Shop. The 1st Defendant and Mdm Liew’s position is that he was not. This is supported by Siew Lian. The Plaintiff’s position, supported by Foong Chong and Poh Lin, is that while the Deceased was not involved in the day-to-day affairs of the business, he was there every evening for an update on the business for the day and to take stock of the revenue that was earned. In short, he exercised control as owner of the Boon Lay Shop.

  37. 1979 and the Bedok Property and Shop

  38. [26] Late 1979 brought a new development. Yong Hup Seng, which was operating then at Jalan Alsagoff, was the subject of resettlement by the Government. As part of the resettlement package, the HDB offered the Deceased the Bedok Property on a month-to-month lease. The Deceased accepted the offer and executed a lease with the HDB in his sole name. On 5 December 1979, he registered Loyang Department Store in his sole name. This was the birth of the Bedok Shop. The Bedok Property was different from the Boon Lay Property in that it was a shophouse, as opposed to a shop only, with both a commercial and a residential component. The family stayed in the residential unit for a period of time.

  39. [27] Like the Boon Lay Shop, the Bedok Shop was also a department store. Its focus was, however, on footwear. There are striking similarities between the controversy surrounding the ownership and management of both the Boon Lay Property and Shop, and the Bedok Property and Shop. The positions taken by the parties as regards the Bedok Property and Shop and the Boon Lay Property and Shop are the same, except for the start-up capital for the former which was paid with monies taken from the Boon Lay Shop and not by Mdm Liew.

  40. [28] The Bedok Shop was run by Foong Chong up at least until 1982. He was assisted by Poh Lin and the Plaintiff. Foong Chong’s wife (then fiancée) subsequently also helped out. Whether Mdm Liew was involved in the day-to-day management or indeed exercised control over the business is disputed.

  41. 1979 to 1987

  42. [29] The Boon Lay Shop was primarily managed by the 1st Defendant. Mdm Liew was also involved in its management. However, there is a dispute on Mdm Liew’s exact involvement, if any, in the management of the Bedok Shop.

  43. [30] In 1982, Yong Hup Seng, which was operating at that time in Jalan Kambing, was resettled once again. The Deceased was offered a shop unit at Block 5 Unit 395K Yew Tee Industrial Estate (“the Yew Tee Unit”) as a replacement. That offer was accepted and the Yew Tee Unit was purchased in the joint names of the Deceased and Foong Chong, using funds from the Boon Lay and Bedok Shops. The Deceased moved Yong Hup Seng and Thai Lok to the Yew Tee Unit, and Foong Chong left the Bedok Shop to take over management of Yong Hup Seng and Thai Lok. It appears that it was for this reason that Foong Chong was added as co-owner of the Yew Tee Unit. The Deceased stepped down from these businesses as a result and appears to have occupied himself with the Boon Lay Shop and the Bedok Shop, in particular the latter. It seems reasonably clear that Foong Chong’s wife and the Deceased were involved in the management of the Bedok Shop following Foong Chong’s departure. There is, however, dispute as to who took charge of management.

  44. [31] 1985 saw several significant events. First, on 17 December 1985, the 1st Defendant and Khian Hin were admitted as partners of the Boon Lay Shop. They were partners with 24.5% share each, with the Deceased holding the remaining 51% share. The 1st Defendant and Khian Hin were also added as co-tenants of the Boon Lay Property. The 1st Defendant and Khian Hin did not pay for their share of the partnership in the Boon Lay Shop. Their shares were given to them gratis, on the instructions of the Deceased. It is clear that the admission of the 1st Defendant and Khian Hin as partners was decided by the Deceased solely. The Deceased did not consult Mdm Liew before deciding. Nor did he communicate his decision to her after it had been implemented. Mdm Liew found out after the fact that the 1st Defendant and Khian Hin were admitted as partners and co-tenants. She did not raise any objection at not being consulted. Nor did she challenge the Deceased’s right to deal with the Boon Lay Property and the Shop as he saw fit.

  45. [32] Second, the Yew Tee Unit was sold in 1985 by the Deceased and Foong Chong. By the 1980s, after Foong Chong took over, the business of Yong Hup Seng and Thai Lok declined in a difficult operating environment. The decline resulted in claims being threatened or made against both businesses by creditors. There is evidence of such claims in 1984 and 1985. These claims were resolved by payments being made using funds drawn from the Boon Lay Shop. It is clear that the businesses were struggling and Foong Chong was having difficulty managing them. This prompted Foong Chong to exit the businesses with the Deceased’s blessings, and the sale of the Yew Tee Unit. The proceeds of sale of the Yew Tee Unit were not returned to the Boon Lay and Bedok Shops but were instead taken by the Deceased solely. The sale of the Yew Tee Unit brought about the closure of Yong Hup Seng and Thai Lok.

  46. [33] Third, following his exit from Yong Hup Seng and Thai Lok, Foong Chong resumed management of the Bedok Shop. Foong Chong was assisted by his wife.

  47. [34] Foong Chong’s second term managing the Bedok Shop ended in 1987 because of a misunderstanding with the Deceased. He left the business. The Plaintiff and his wife took over management of the business for a period of time thereafter.

  48. 1988 to 1993

  49. [35] The Plaintiff and his wife were involved in the Bedok Shop until 1991. On the parties’ respective positions, the management of the Bedok Shop was either taken over by Mdm Liew or the Deceased with the assistance of Poh Lin. This difference is not material.

  50. [36] A significant event happened in 1992. The HDB offered the Bedok Property to the Deceased for purchase. The Deceased decided to “flip” the property by assigning to Mr Lim his right to purchase for $750,000 (“the Assignment Proceeds”). The sale of the Bedok Property brought an end to the Bedok Shop. There is significant disagreement on who brought about this transaction. At present, it suffices to note that the Assignment Proceeds were divided by the Deceased and deposited into three bank accounts. The details of the three bank accounts and the deposits that were made are as follows:

  51. (a) $150,000 was deposited on 28 May 1992 in an Oversea-Chinese Banking Corporation (“OCBC”) account in the joint names of the Deceased and Mdm Liew (“Mdm Liew’s Joint OCBC Account”).

  52. (b) $300,000 was deposited between 1 and 14 March 1993 in an Industrial & Commercial Bank (“ICB”) account in the joint names of the Deceased and Mdm Liew (“Mdm Liew’s Joint ICB Account”).

  53. (c) $300,000 was deposited between 1 and 14 March 1993 in an ICB account in the sole name of Mdm Liew (“Mdm Liew’s ICB Account”). This amount was transferred shortly thereafter between 1 March to 5 March 1993 to a United Overseas Bank (“UOB”) account in the joint names of the Deceased and Mdm Liew (“Mdm Liew’s Joint UOB Account”).

  54. Between May 1992 and 10 July 2003, the Assignment Proceeds flowed through multiple bank accounts. I have highlighted the principal movements in this recitation of the facts. For ease of reference, a tabulation setting out the flow of the funds is annexed to this judgment at Annex A.

  55. [37] In 1993, the HDB offered for purchase the Boon Lay Property. This time the offer was accepted and the HDB approved the sale on 30 April 1993. There is much controversy over the events and circumstances surrounding the discussions that resulted in the decision to accept the offer from the HDB. However, the following appears clear:

  56. (a) The Deceased called for a meeting or meetings (there is dispute as to whether there were one or two meetings) of his sons to discuss the division of interest in the Boon Lay Property and Shop. Mdm Liew and the daughters were not invited to attend. Nor did they try to attend. The Deceased did not tell Mdm Liew that he was calling the meeting(s) though she eventually came to know of the same through the 1st Defendant.

  57. (b) The Deceased did not discuss with Mdm Liew what he intended to communicate at the meeting(s).

  58. (c) The Deceased decided the division of interest in the Boon Lay Property and Shop at the meeting(s). Mdm Liew was not consulted at all about the division. She did not attempt to stop the Deceased from dealing with the Boon Lay Property and Shop or confront him before, during or after the meeting(s).

  59. [38] Following the meeting(s), by an agreement for a lease dated 30 June 1993, the leasehold interest in the Boon Lay Property was purchased by the Deceased and the 1st Defendant as tenants-in-common with 51% and 49% shares respectively. Khian Hin retired as a partner of the Boon Lay Shop and the Accounting and Corporate Regulatory Authority (“ACRA”) records were updated to reflect this. The Deceased and the 1st Defendant continued as partners holding 51% and 49% shares respectively.

  60. [39] The purchase price for the lease was $434,000, with $399,280, being 92% of the purchase price, payable after the signing of the agreement and the remaining 8% payable on completion. The initial payment of $399,280 was funded by a 48-month term bank loan of $215,280 from ICB commencing 28 July 1993 that was taken in the name of the Boon Lay Shop, on the terms set out in ICB’s letter of offer dated 2 July 1993, and cash of $183,652 from the Boon Lay Shop’s bank account with UOB. The monthly loan repayments were made from the revenues of the Boon Lay Shop.

  61. 1994 to 2002

  62. [40] Apart from one event, nothing of significance occurred between 1994 and 1997. The management of the Boon Lay Shop was principally handled by the 1st Defendant.

  63. [41] On 6 June 1996, the Deceased purchased in his sole name a parcel of land in the People’s Republic of China from Yong Ding County Xinyi Development and Construction Ltd (“the Yongding Property”) for $37,000. Funds from Mdm Liew’s Joint UOB Account were used to make payment.

  64. [42] In 1998, the 1st Defendant bought a place of residence at Corporation Drive (“Corporation Drive”). The 1st Defendant took out a loan of $300,000 (“the Loan”) for this purpose. Again, there is vast disagreement on who gave the Loan, with the Plaintiff’s position being that the Loan was given by the Deceased and the position of both the 1st Defendant and Mdm Liew being that the Loan was from Mdm Liew. However, it seems clear that the records on the Loan were maintained by the Deceased only. Mdm Liew offered no documentary evidence of the Loan.

  65. [43] Whether the Loan carried interest and was fully repaid are also matters of dispute. However, it appears clear that:

  66. (a) the Deceased was the one constantly harrying the 1st Defendant to repay the Loan;

  67. (b) the 1st Defendant hoped to settle the Loan using the proceeds of sale of his HDB apartment in Tampines; and

  68. (c) the Tampines apartment was sold in 2002 and $284,126.52 from the proceeds of sale was received by the Deceased and banked into another ICB account in the joint names of the Deceased and Mdm Liew (“Mdm Liew’s Joint ICB Account No. 2”). The 1st Defendant and Mdm Liew take the position that this fully discharged the Loan, while the Plaintiff’s position is that there remains a shortfall of $14,760.68.

  69. [44] The Deceased and Mdm Liew were joint tenants of a HDB apartment at Marsiling Drive (“the Marsiling Flat”). It is unclear who paid for the Marsiling Flat. The Plaintiff claims that the Deceased made the payment, but Mdm Liew contends that she provided the funds. The purchase price was $106,200. Despite purchasing the Marsiling Flat, the Deceased and Mdm Liew resided in Corporation Drive with the 1st Defendant and his family , until the Deceased was diagnosed with advanced lung cancer in June 2003.

  70. [45] Despite living under one roof, the relationship between the Deceased and the 1st Defendant was not healthy. There was evidence that he was unhappy with the delay in repayment of the Loan and was critical of the 1st Defendant’s management of the Boon Lay Shop. The Deceased felt that the 1st Defendant and his wife lacked commitment and diligence, and consequently did not run the business well. The Deceased also felt that the 1st Defendant was deceiving him by not properly accounting for the income, expense and profits of the Boon Lay Shop. In addition, the Deceased was unhappy with Mdm Liew as he perceived that she was supportive of the 1st Defendant.

  71. [46] The Deceased’s unhappiness grew to such an extent that he harboured thoughts of selling the Boon Lay Property. From 1999, he started demanding that the Boon Lay Property be sold. His demands were to no avail. The Deceased tried another option – Mdm Liew. The Deceased requested Mdm Liew to persuade the 1st Defendant to sell the Boon Lay Property. Mdm Liew refused and took the side of the 1st Defendant. This caused significant friction in their relationship, so much so that on 9 December 2002, Mdm Liew lodged a police report (“the Police Report”). In the Police Report, she alleged that on the previous day, the Deceased had threatened to beat her to death if: (a) she did not persuade the 1st Defendant to sell the Boon Lay Property; and, (b) the 1st Defendant and his wife refused to sell the Boon Lay Property. Mdm Liew also made reference in the Police Report to an alleged assault by the Deceased on her in July 2002.

  72. 2003 (January to May)

  73. [48] 2003 was unfortunately the last year of the Deceased’s life. As an indication of the disharmony with Mdm Liew, soon after the Police Report was lodged, between 7 January 2003 and 22 January 2003, the Deceased withdrew $404,225.19 from three joint accounts with Mdm Liew and deposited the same into newly opened accounts in his sole name. The Plaintiff took the Deceased to the banks for this purpose. Mdm Liew only became aware of these transfers after the death of the Deceased. The details of the withdrawals and deposits are as follows:

  74. (a) On 7 January 2003, the Deceased withdrew $284,000 from Mdm Liew’s Joint ICB Account No. 2. Out of this, $280,000 was ultimately deposited into an OCBC fixed deposit account in the Deceased’s sole name (“the Deceased’s OCBC Account”), and the balance $4,000 in an OCBC savings account in the Deceased’s sole name.

  75. (b) On 21 January 2003, the Deceased withdrew $80,000 and accrued interest of $149.58 from Mdm Liew’s Joint ICB Account, as well as $40,000 and accrued interest of $75.61 from another UOB account in joint names with Mdm Liew. The $80,149.58 came from the $300,000 deposited into Mdm Liew’s ICB Account, of which $200,000 had been transferred to Mdm Liew’s Joint ICB Account. The total of $120,225.19 ($80,149.58 plus $40,075.61) was deposited into a DBS Bank account in his sole name.

  76. As a result, most of the Assignment Proceeds that were deposited into accounts in the joint names of the Deceased and Mdm Liew, were transferred to accounts in the sole name of the Deceased by 22 January 2003.

  77. [49] Sometime in early 2003, the Deceased and Mdm Liew visited Foong Choong and his family in Tanjong Pinang, Indonesia. Foong Chong had been declared a bankrupt in 1999. The Deceased raised the subject of selling the Boon Lay Property with Foong Chong, expressing concern that the 1st Defendant was not properly accounting for the income of the business.

  78. 2003 (3 June to the passing of the Deceased on 25 June)

  79. [50] On 3 June 2003, the Deceased became short of breath while at home. Mdm Liew and the Plaintiff, who happened to be there, took the Deceased to a neighbourhood clinic. He was referred immediately to a hospital. The Plaintiff brought the Deceased to the Singapore General Hospital (“SGH”). He was met by Poh Lin there. There is some dispute on whether Mdm Liew and the 1st Defendant refused to take the Deceased to SGH. But it seems clear that they did not accompany the Deceased to SGH.

  80. [51] As the SARS epidemic was on, there was a long queue at SGH. Poh Lin waited with the Deceased in the waiting area while the Plaintiff waited outside. A preliminary assessment of the Deceased’s condition was made at SGH. Notes of his medical examination were admitted in evidence. The SGH medical notes for 3 June 2006 recorded the Deceased as being “well and able to speak in full sentences”.

  81. [52] The wait at SGH for full medical attention proved too long for the Deceased. He secured a discharge and sought the assistance of Dr Ong that evening. Dr Ong’s testimony, which was largely unchallenged, was as follows:

  82. (a) When Dr Ong first saw the Deceased, he was hardly able to speak, being extremely short of breath.

  83. (b) He was suffering from cachexia, the medical term for severe physical deterioration – essentially, he was skin and bones having lost about 30% of his body weight. Dr Ong explained that this was because the body was severely malnourished due to poor appetite as a result of which, the body’s fat reserves followed by muscle were drawn upon for sustenance. The deterioration would have taken place over two to three months and ought to have been apparent to the family members.

  84. (c) To alleviate the Deceased’s breathlessness, Dr Ong carried out an emergency procedure that evening to drain fluids from his lungs. A second fluid drain was done the next day. In total, about 1.5 litres of fluid was drained.

  85. (d) Consent for these procedures was given by the Deceased. Consent would not have been procured from the patient if there were doubts as to his ability to give consent, the hospital reserving its right to seek the same from the next of kin in such circumstances. This was expressly provided in the consent form. In this regard, Dr Ong was satisfied that the Deceased was able to understand the procedure and give consent. The Deceased was orientated at the time of admission, being able to walk into the hospital and react to questions with a nod to indicate “yes”.

  86. (e) Following the procedures, the Deceased felt a lot better and was able to converse in full sentences. Dr Ong felt that he was lucid and clear.

  87. (f) The Deceased was discharged from Gleneagles on 5 June 2003 as he wanted to return to SGH for further treatment. At that time, there was residual fluid in his lungs though he was feeling a lot better.

  88. (g) Based on X-rays of the Deceased’s lungs carried out on 4 June 2003, Dr Ong formed the view that it was highly likely that the Deceased had advanced lung cancer. The prognosis was poor. He communicated his views to members of the family (though it would seem that did not include Mdm Liew and the 1st Defendant). Dr Ong was told by the family members not to inform the Deceased of the diagnosis and prognosis.

  89. [53] During the stay in Gleneagles, the Deceased was visited by members of the family. It is unclear whether the 1st Defendant was one of them. He appeared to be lucid and alert carrying out conversations in full sentences. Dr Ong did not make an assessment of his mental capacity.

  90. [54] Following discharge from Gleneagles, the Deceased was admitted to SGH late on 5 June 2003 for further treatment. The Deceased was discharged with home oxygen on 10 June 2003 and returned to the Marsiling Flat where he resided with Mdm Liew until his passing on 25 June 2003. In that period, all family members had access to the Deceased. It ought to be noted that Foong Chong stayed at the Marsiling Flat to care for the Deceased.

  91. [55] The medical and nursing notes of the stay at SGH between 5 and 10 June 2003 were admitted in evidence. During his stay in SGH, more fluid was drained from the lungs. A bronchoscopy was also done and consent for these procedures was obtained from the Deceased. The medical notes taken at admission noted the Deceased as “stable [and] comfortable” and his general condition “fair”. The nursing notes recorded his condition as “fair, conscious, alert” with his speech observed as “normal” and his behaviour during the interview “cooperative”. The medical notes for his stay recorded the Deceased as being conscious and alert on each day. The discharge documents reflected the Deceased as being “alert and rational” and his mental status “orientated towards own ability”. All the members of the family appeared to have visited the Deceased while he was at SGH bar the 1st Defendant.

  92. [56] Medical tests carried out at SGH confirmed the diagnosis of advanced lung cancer with poor prognosis. The family was informed. The Deceased was not.

  93. [57] Several events of significance took place between 13 and 20 June 2003. There are essentially two strands of fact – one concerns the execution of the Will, a declaration of trust dated 20 June 2003 (“the Declaration of Trust”) and a power of attorney dated 17 June 2003 (“the Power of Attorney”), all prepared by Ms Choo. The other concerns the opening of bank accounts and the transfer of monies by the Deceased. It is best that the events are addressed chronologically for a better appreciation of the facts.

  94. [58] On 13 June 2003, the Deceased visited the law firm of Citilegal LLC (“Citilegal”). He was taken there by Khian Hin, Foong Chong and the Plaintiff in Khian Hin’s car. Foong Chong and the Plaintiff brought the Deceased to Citilegal’s office while Khian Hin remained in the car. The Deceased met Ms Choo, a partner of Citilegal, on that visit. While it is clear that Ms Choo was recommended to the Deceased by Poh Lin, it is unclear whether she made or had a hand in the making of the appointment.

  95. [59] Ms Choo met the Deceased alone. Following the meeting, the Deceased mentioned that he would be executing a power of attorney appointing the Plaintiff to rent or sell the Boon Lay Property. A return visit was scheduled for 17 June 2003. Upon returning to the Marsiling Flat, the Deceased told the Plaintiff about a record book (“the Record Book”) he maintained and where it was kept. The Deceased gave the Plaintiff instructions to retrieve the Record Book and hand it over to Khian Hin following his demise. The Record Book is relevant to two of the Plaintiff’s claims – the claim on the Loan, and for rent of the Boon Lay Property.

  96. [60] On 14 June 2003, the Deceased was taken by the Plaintiff to OCBC Bank’s Causeway Point branch. The Deceased and the Plaintiff opened two joint accounts, one a savings account (“the OCBC Joint Savings Account”) and the other a fixed deposit account (“the OCBC Joint FD Account”). The Deceased withdrew $280,517.82 from the Deceased’s OCBC Account. This sum was deposited into the OCBC Joint Savings Account. A further $3,021.67 was deposited by the Deceased into this account. Thereafter, between 14 and 20 June 2003, the Deceased withdrew $280,000 from the OCBC Joint Savings Account and deposited the same into the OCBC Joint FD Account.

  97. [61] Also on 14 June 2003, the Plaintiff and the Deceased went to DBS Bank’s Woodlands Civic Centre Branch. There, the Deceased added the Plaintiff’s name to a fixed deposit account in his name (“the DBS Joint Account”). At that time, the total sum in the account was about $119,000.

  98. [62] On 17 June 2003, the Deceased met Ms Choo again at Citilegal’s office. This time, he was taken there by Foong Chong and the Plaintiff. Khian Hin did not accompany them as he was working. As before, the Deceased met Ms Choo alone. Following the meeting, the Deceased informed the Plaintiff and Foong Chong that he had signed the Power of Attorney though a copy was not shown to them. The Power of Attorney, which was in the standard form required by the HDB, appointed the Plaintiff as the Deceased’s attorney to sell, sub-let and generally manage the Boon Lay Shop. It was signed by the Deceased in the presence of Ms Choo. A third visit was planned for 20 June 2003 to execute a will.

  99. [63] On 20 June 2003, the Deceased visited Ms Choo for the third and last time. He was taken to Citilegal’s office by Foong Choong and the Plaintiff. He saw Ms Choo alone. He signed the Will in the presence of Ms Choo and Ms Lilian Lee, Ms Choo’s secretary. The Will recorded Ms Choo as having explained its terms to the Deceased in Mandarin, and he as having understood and approved the same. Subsequently, the Plaintiff was asked by Ms Choo to enter the meeting room. She showed the Plaintiff the Declaration of Trust and asked him to sign it, which he did in her presence. On the way back to the Marsiling Flat, the Deceased handed to the Plaintiff a copy of the Will and a draft tenancy agreement for the Boon Lay Property.

  100. [64] The following should be noted as regards the Will :

  101. (a) The Will dealt with the Deceased’s 51% interest in the Boon Lay Property by dividing the same amongst Khian Hin, Lai Yida (“Yida”, Foong Chong’s son) and the Plaintiff in 16/51, 16/51 and 19/51 shares respectively. It appears that the Deceased intended Yida to receive Foong Chong’s share because Foong Chong was an undischarged bankrupt.

  102. (b) The Will did not lay claim to and deal with the 1st Defendant’s interest in the Boon Lay Property or the Deceased’s interest in the Marsiling Flat.

  103. (c) Poh Lin received a 25% share of the residuary estate. The remainder of the residuary estate was divided equally amongst the rest of the Deceased’s children except for the 1st Defendant, with each receiving a 15% share (Foong Chong’s share was given to Yida once again). The 1st Defendant received nothing.

  104. (d) Although the Will made no specific mention of bank accounts, it is apparent when read in the context of the Declaration of Trust that the Will treated the monies in the joint bank accounts of the Deceased and the Plaintiff as part of the residuary estate ([60] supra).

  105. (e) Mdm Liew and the 1st Defendant were each allocated $3,000.

  106. [65] The Declaration of Trust was a declaration by the Plaintiff that he held the monies in the OCBC Joint FD Account (amounting to $280,000) and the DBS Joint Account (amounting to $119,000) on trust for the Deceased.

  107. [66] The Deceased was on home oxygen when he met Ms Choo. Mdm Liew and the 1st Defendant were not aware that the Deceased consulted Ms Choo, or that he visited OCBC Bank and DBS Bank between 14 and 20 June 2003. They were not informed by the Deceased, Khian Hin, Foong Chong or the Plaintiff. The 1st Defendant testified that he met the Deceased daily and spoke to him during this period. Mdm Liew testified that she cared for the Deceased in this period.

  108. [67] On the same day that he executed the Will (ie, 20 June 2003), the Deceased returned to SGH for a medical review. The Plaintiff, Foong Chong and the 1st Defendant took him, though only the latter two saw the doctor. The diagnosis and prognosis were explained to them but not the Deceased. Based on SGH’s medical report, the Deceased was diagnosed with dypsnea (difficult or laboured breathing), pain over the sacral region and poor appetite. The Deceased was discharged from respiratory follow-up and given an early oncology appointment.

  109. [68] On 25 June 2003, the Deceased fainted at the Marsiling Flat. Foong Chong and the Plainitff were there at that time. An ambulance rushed the Deceased to NUH. Unfortunately, the cancer overcame the Deceased and he died that evening from “intractable shock and respiratory failure”.

  110. 2003 (after the passing of the Deceased)

  111. [69] On 25 June 2003, the 1st Defendant unilaterally updated the ACRA records for the Boon Lay Shop to reflect the withdrawal of the Deceased as an owner, leaving the 1st Defendant as the sole proprietor of the business. Mdm Liew was present with the 1st Defendant when this happened.

  112. [70] The Deceased’s wake was held between 26 and 28 June 2003. On 26 June 2003, the Plaintiff and Poh Lin opened a fixed deposit account at OCBC Bank’s Causeway Point branch in their joint names (“the Consolidated Account”). The money in the DBS Joint Account, which had since become $119,072.38, was transferred into the Consolidated Account on the same day. Further, on 10 July 2003, a sum of $49,052.78, which was realised on 3 July 2003 from the liquidation of a unit trust held by the Deceased, was also deposited into the Consolidated Account.

  113. [71] Following the death of the Deceased, the Plaintiff retrieved the original Will from Citilegal. The Plaintiff disclosed the contents to Khian Hin, Foong Chong and Poh Lin. A family meeting was thereafter called to read the Will. That meeting took place at the Marsiling Flat. All of the Deceased’s children and Mdm Liew were present. Unfortunately the meeting descended into a fracas. The Plaintiff read the contents of the Will but did not show it to those present. When Mdm Liew and the 1st Defendant learnt that they were left only $3,000 each, accusations started to fly and attempts were made to grab the Will. The meeting was consequently called off.

  114. [72] The Plaintiff instructed Citilegal to apply for the Grant. The Grant was issued on 7 August 2003 and extracted on 8 September 2003. It should be noted that while the schedule of assets to the Grant did not make reference to the Consolidated Account, the DBS Joint Account and the OCBC Joint Savings Account were included in the schedule.

  115. [73] On 13 August 2003, Mdm Liew lodged a police report alleging that the Deceased had, between 7 January 2003 and 6 March 2003, withdrawn monies held in their joint accounts in UOB’s Jurong West branch without her consent. Mdm Liew’s ICB Account and Mdm Liew’s Joint ICB Account, amongst others, were identified.

  116. [74] On 20 August 2003, Mdm Liew and the 1st Defendant visited Citilegal’s offices to request a copy of the Will. Their request was turned down though they were again told that the distribution to them under the Will was $3,000 each.

  117. Post 2003

  118. [75] On 22 March 2007, the 1st Defendant redeemed the loan on the Boon Lay Property from UOB and retrieved the title deeds. He refused to let the Plaintiff have them despite the Plaintiff’s demands.

  119. [77] It should be noted that Mdm Liew was represented by Messrs Jeanny Ng (“Jeanny Ng”) from 24 September 2007 until the 1st Defendant’s solicitors, Messrs Ho Wong Practice Law LLC (“Ho Wong”), took over on 1 April 2011. It is also relevant to note that on or about 31 December 2007, Mdm Liew made a will dated 31 December 2007 (“Mdm Liew’s Will No. 1”) under which she bequeathed all her assets to the 1st Defendant. Despite Mdm Liew being represented by Jeanny Ng at that time, Mdm Liew’s Will No. 1 was prepared by one Mr Aw Teng Pooi (“Mr Aw”), a friend of hers. Having not been prepared by lawyers, not surprisingly, Mdm Liew’s Will No. 1 fell short of fulfilling the requirements for a valid will, and was subsequently discarded. I should also point out that Mdm Liew did execute another will eventually (“Mdm Liew”s Will No. 2”). That will was prepared by Ho Wong. Mdm Liew declined to produce Mdm Liew’s Will No. 2.

  120. The Claims

  121. The Plaintiff’s claims

  122. [78] The Plaintiff sues as the executor of the Estate of the Deceased. His case is as follows:

  123. (a) The Boon Lay Property was held by the Deceased and the 1st Defendant as tenants-in-common with the Deceased having a 51% interest.

  124. (b) The Deceased was a partner of the Boon Lay Shop with a 51% share.

  125. (c) The Boon Lay Shop was liable to pay rent of $4,000 per month to the Deceased for use of the Boon Lay Property from July 2000 and has been in arrears since August 2000.

  126. (d) The 1st Defendant owed the Deceased $42,403, being the unpaid balance of the Loan.

  127. [79] The Plaintiff seeks various reliefs against the 1st Defendant based on these claims. They include:

  128. (b) an account of the profits of the Boon Lay Shop from the time of the Deceased’s passing;

  129. (c) an account of the outstanding rent due from the Boon Lay Shop at the rate of $4,000 per month; and

  130. (d) judgment for $42,403, being the balance of the Loan.

  131. The 1st Defendant’s defence and claims

  132. [80] As regards the Loan, the 1st Defendant’s position is that it was an interest-free loan which was fully paid to the Deceased.

  133. [81] The 1st Defendant denies that there was any arrangement for the payment of rent by the Boon Lay Shop to the Deceased for use of the Boon Lay Property, and says that no rent was in fact paid.

  134. [82] The 1st Defendant alleges that the claims for the Loan and an account of profits as regards the Boon Lay Shop are time-barred by reason of s 6(1) or 6(2) of the Limitation Act (Cap 163, 1996 Rev Ed) (“the Act”) given that the Deceased passed away on 25 June 2003 and this action was commenced on 11 May 2012, more than six years later.

  135. [83] Additionally, the 1st Defendant mounts a counterclaim.

  136. [85] Further, the 1st Defendant alleges that the Deceased did not have testamentary capacity at the time of execution of the Will. He seeks a declaration that the Will is void as a result.

  137. Mdm Liew’s claims

  138. [86] Mdm Liew too mounts a counterclaim. It pertains to the Boon Lay Property and Shop, the Bedok Property and Shop, and the Will.

  139. [87] As regards the Boon Lay Property and Shop, Mdm Liew asserts that:

  140. (a) she started the Boon Lay Shop using her funds;

  141. (b) the Deceased being a traditional Chinese man did not allow her name to be reflected as the owner of the Boon Lay Shop and the tenant of the Boon Lay Property;

  142. (c) however, the Deceased recognised her as the owner of the Boon Lay Property and Shop and represented orally and by conduct that she was the rightful owner of the same;

  143. (d) in reliance thereof, she made substantial contributions in the form of labour and money (from her savings) to pay for the rent for the Boon Lay Property and the operating expenses of the Boon Lay Shop;

  144. (e) the bank account that was used by the Boon Lay Shop belonged to and was managed by her;

  145. (f) as a result of the family meeting in 1993, she surrendered 49% of her interest in the Boon Lay Property and Shop to the 1st Defendant.

  146. [88] Mdm Liew therefore counterclaims for a declaration that the Deceased held his 51% interest in the Boon Lay Property and Shop on resulting or constructive trust for her. Alternatively, Mdm Liew asserts an interest in the Boon Lay Property and Shop by way of proprietary estoppel. It should be noted that she does not assert a claim over the 1st Defendant’s 49% interest in the Boon Lay Property and Shop.

  147. [89] In very much the same vein and for very similar reasons, as regards the Bedok Property, Mdm Liew asserts that:

  148. (a) the Deceased held the Bedok Property and Shop on resulting and constructive trust for her;

  149. (b) alternatively, she has an interest arising from proprietary estoppel;

  150. (c) consequently, the Assignment Proceeds belonged solely to her;

  151. (d) alternatively, relying on the presumption of advancement, the Deceased by depositing the Assignment Proceeds in the bank accounts in her sole name or in joint names with the Deceased, gifted the same to her;

  152. (e) she permitted the Deceased to use the $150,000 in Mdm Liew’s Joint OCBC Account for his personal expenses, leaving a balance of $600,000 from the Assignment Proceeds;

  153. (f) of this sum, the Deceased withdrew $60,000 for the purchase of the Yongding Property but only utilised $37,000 and did not account for the balance $23,000;

  154. (g) in breach of his duties as trustee of the Assignment Proceeds, between 21 January 2003 and 6 March 2003, the Deceased withdrew a total of $448,545.97 from joint accounts for his use.

  155. On this basis, Mdm Liew counterclaims for an account of profits as regards that part of the Assignment Proceeds that is alleged to be held on trust for her. There is an alternative claim for damages for $600,000, being the Assignment Proceeds less the $150,000 that Mdm Liew permitted the Deceased to use for his personal expenses.

  156. [90] Further, Mdm Liew asserts that the Will is void on the basis the Deceased did not have testamentary capacity when he executed the same. In the alternative, she asserts that the execution of the Will was procured by undue influence exercised by the Plaintiff over the Deceased.

  157. The Issues

  158. [91] The issues that I therefore have to determine are as follows:

  159. (a) whether the Boon Lay Property and Shop were held by the Deceased on resulting or constructive trust for Mdm Liew;

  160. (b) in the alternative, whether a proprietary estoppel operates in favour of Mdm Liew against the Deceased as regards the Boon Lay Property and Shop;

  161. (c) whether the Bedok Property and Shop were held by the Deceased on resulting or constructive trust for Mdm Liew;

  162. (d) in the alternative, whether a proprietary estoppel operates in favour of Mdm Liew against the Deceased as regards the Bedok Property and Shop;

  163. (e) whether the Assignment Proceeds were a gift from the Deceased to Mdm Liew;

  164. (f) whether the Deceased was the legal and beneficial owner of 51% of the Boon Lay Property and Shop or whether he held the beneficial interest on trust for the 1st Defendant;

  165. (g) whether the Loan was fully repaid by the 1st Defendant;

  166. (h) whether there was an agreement for the Boon Lay Shop to pay rent of $4,000 per month to the Deceased with effect from July 2000;

  167. (i) whether the claim for an account of profits for the Deceased’s 51% share in the Boon Lay Shop is time-barred pursuant to s 6(1) or 6(2) of the Act; and

  168. (j) whether the Will is void for lack of testamentary capacity or the Deceased’s execution of the same was procured by undue influence.

  169. Before I consider these issues, it is useful to set out the law on resulting and constructive trusts, and proprietary estoppel.

  170. Resulting and Common Intention Constructive Trusts, and Proprietary Estoppel – the Law

  171. Purchase price resulting trust

  172. [92] The building blocks of a resulting trust were extensively considered by the Court of Appeal in Lau Siew Kim v Yeo Guan Chye Terence [2008] 2 SLR(R) 108 (“Lau Siew Kim”) and Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 (“Chan Yuen Lan”). A resulting trust arises by operation of law in two scenarios. First, where A makes a voluntary payment to B or pays either wholly or in part for the purchase of a property which is vested in B’s name solely or in their joint names, there is a presumption that the money or property is held on trust for A (if he is sole provider of funds) or in shares proportionate to their contributions (in the case of joint names) (see Lau Siew Kim at [34] and Chan Yuen Lan at [36]). This is commonly referred to as the “purchase price resulting trust”. Second, where A transfers property to B on an express trust, but the trust does not exhaust the whole of the beneficial interest, a resulting trust arises. An example of this is a Quistclose trust. I say no more on the latter given that it is only the former that is engaged on the facts before me.

  173. [93] A resulting trust may not arise if there is proof of actual intention to benefit the recipient. It is the intention of the transferor and not the recipient that is relevant (see Chan Yuen Lan at [43]). In certain relationships, typically familial (for example between parent and child and husband and wife), a presumption of advancement may arise such that the transferor is presumed to have intended a gift of the monies or property to the recipient. However, as cautioned by the Court of Appeal in Lau Siew Kim at [59], the presumption of advancement is nothing more than a long-stop answer where there is a paucity of evidence that adequately reveals the intention of the transferor, or where such evidence is inconclusive. However, the Court of Appeal recognised that the presumption of advancement continues to accord with societal needs and norms and therefore ought not to be discarded or disregarded (see Chan Yuen Lan at [152]).

  174. [94] There are inherent inflexibilities in the purchase price resulting trust. As the trust is crystallised at the time the property is acquired, the quantification of the parties’ beneficial interests is assessed with reference to their respective financial contributions at that time. It therefore follows that the assessment of beneficial interest is based on direct final contributions at the time of the acquisition. Subsequent financial contributions are to be disregarded, though Chan Yuen Lan appears to accept that where the purchase price is financed by loans, contributions made towards mortgage payments, in the absence of any prior agreement of division of the beneficial interest, ought to be taken into account in assessing the parties’ beneficial interests (see Chan Yuen Lan at [55] to [57]). Therefore, the assessment of beneficial interest is based on the strict arithmetic of direct financial contributions at the time of acquisition subject to the caveat on mortgage payments I have mentioned.

  175. Common Intention Constructive Trust

  176. [95] A common interest constructive trust arises when A relies to his detriment on a common intention that the beneficial interest in a property is to be shared. Such an intention may (a) arise from express discussion; (b) take the form of an inferred common intention, as evidenced by direct financial contributions by A to the purchase price; or (c) in exceptional situations, arise from other conduct by A which gives rise to an implied common intention (see Chan Yuen Lan at [97]). The conduct necessary for a common intention need not always be financial, though relevant non-financial contributions would be the exception. The focus remains very much on the financial contributions of the parties. A key difference between common intention constructive trusts and resulting trusts is that in the former the division of beneficial interest does not follow a strict arithmetic calculus but is along the lines of the parties’ express, inferred or implied common intention. It should be pointed out that Chan Yuen Lan (at [153]) preferred the approach of Lord Neuberger in his dissenting judgment in Stack v Dowden [2007] 2 AC 432 (“Stack”). Lord Neuberger was of the opinion that common intention ought not be imputed by the court based on what is fair and reasonable. It should instead be determined according to the actual intention of the parties, whether that be express, inferred or implied.

  177. [96] It is in principle possible for the parties to alter their common intention post-acquisition and thereby also alter their respective shares of the beneficial interest as it stood on the date of acquisition. However, such alteration would require compelling evidence of “discussions, statements or actions, subsequent to the acquisition, from which an agreement or common understanding as to such change [could] properly be inferred” (see Chan Yuen Lan at [114] and Stack at [138]).

  178. The Chan Yuen Lan approach to resulting and common intention constructive trusts

  179. [97] Having reviewed the differing approaches in England and the positions in Commonwealth jurisdictions such as Australia and Canada, and revisited Lau Siew Kin, the Court of Appeal in Chan Yuen Lan (at [160]) suggested a sequential analysis to ascertaining the beneficial interest in a property which has been purchased by parties making unequal contributions towards the purchase price.

  180. [98] The steps may be summarised in four broad strokes. First, the starting point is the presumption of resulting trust with the parties’ beneficial interest held in proportion to their respective financial contributions. If there is insufficient evidence of the parties’ respective financial contributions to the purchase of the property, it is then presumed that the parties hold the beneficial interest in accordance with their legal interest in the property.

  181. [99] Second, regardless of whether a purchase price resulting trust arises, where there is evidence of a common intention that the parties should hold the beneficial interest in the property in a proportion that differs from what is presumed, the parties shall hold the beneficial interest in accordance with that common intention. However, the common intention may not be imputed.

  182. [100] Third, where a purchase price resulting trust arises absent evidence of a common intention, the court has to consider whether there is evidence that the party who made the larger financial contribution intended a gift of his contribution to the other party. If so, the entire beneficial interest would vest in the donee, displacing the presumption of resulting trust. In assessing whether a gift was intended, the presumption of advancement would be relevant in the absence of direct evidence. As noted in Buthmanaban s/o Vaithilingam v Krishnavanny d/o Vaithilingam (administratrix of the estate of Ponnusamy Sivapakiam, deceased) and another [2015] SGHC 35 (“Buthmanaban”) at [91], evidence of common intention serves the twin functions of rebutting the presumption of a gift and setting the division of the beneficial interest in a manner that does not accord with the mathematical precision of the resulting trust.

  183. [101] Fourth, the court must ascertain whether there is compelling evidence of a common intention, express or inferred, subsequent to the acquisition to alter the beneficial interest held at the time of the acquisition. If there is, the beneficial interest will be held in accordance with that subsequent common intention.

  184. [102] These steps provide a useful guide to assessing the beneficial interest of parties in property that is alleged to be under shared ownership.

  185. Proprietary Estoppel

  186. [103] Hong Leong Singapore Finance Ltd v United Overseas Bank Ltd [2007] 1 SLR(R) 292 (“Hong Leong”) is the leading judgment on proprietary estoppel. First and foremost, it must be remembered that the estoppel concerns conduct in relation to land. Three elements must be present:

  187. (a) representation by the party against whom the estoppel is asserted that the claimant is to have or has an interest or right in the land;

  188. (b) reliance by the claimant on the representation; and

  189. (c) detriment suffered by the claimant as a result of his reliance.

  190. As noted in Hong Leong, the cornerstone of the estoppel is unconscionability – did the party against whom the estoppel is asserted, the representor, conduct himself in a manner that caused the claimant to take a certain course of action in circumstances that render it unconscionable not to prevent the representor from resiling from his earlier position (see Hong Leong at [171])?

  191. [104] The first element of representation is broadly construed to cover a range from an agreement to an expectation that was created or encouraged by the party being estopped (Hong Leong at [175]).

  192. [105] As observed in Low Heng Leong Andy v Low Kian Beng Lawrence (administrator of the state of Tan Ah Kng, deceased) [2013] 3 SLR 710 at [28], the principal difference between a proprietary estoppel and a constructive trust is that the latter recognises an equitable interest in the subject property, whilst the former confers an inchoate interest in equity that is left to be satisfied by the court in the exercise of its discretion. There are, however, conceptual similarities.

  193. [106] Having set out briefly the law on resulting and common intention constructive trusts, and proprietary estoppel, I now turn to consider the issues.

  194. Mdm Liew’s Claims (save as regards the Will)

  195. Resulting or Common Intention Constructive Trust - the Boon Lay Property and Shop

  196. [107] I must say at the outset that I harbour grave doubts over the testimony of Mdm Liew. I find her testimony riddled with inconsistencies. More disconcertingly, I find that she was largely parroting the positions of the 1st Defendant on matters concerning the Boon Lay Property and the Boon Lay Shop. In this regard, I am mindful of the fact that: (a) following the Deceased’s death, Mdm Liew has been living with the 1st Defendant in Corporation Drive; and (b) the 1st Defendant was involved in the preparation of both Mdm Liew’s Will No. 1 and Mdm Liew’s Will No. 2. I have the distinct impression that the positions that she took were tailored to facilitate the 1st Defendant’s claim as regards the Boon Lay Property and Shop. I highlight two obvious examples – (a) despite asserting that the Boon Lay Property and Shop are hers, Mdm Liew makes no claim against the 1st Defendant; and (b) despite asserting a claim over the Deceased’s 51% interest in the Boon Lay Property and Shop, Mdm Liew repeatedly testified that that the share would go to the 1st Defendant. The terms of Mdm Liew’s Will No. 1 are entirely consistent with this. Also, allegations were made in respect of the Deceased’s behaviour as a husband and father, almost by way of pot shots, to advance her claim. I find these allegations to be quite unfair.They leave me with the distinct and distasteful impression that Mdm Liew was taking full advantage of the fact that the Deceased was no longer around to defend himself to advance her case and that of the 1st Defendant. I therefore approach Mdm Liew’s evidence with a significant degree of circumspection. With these prefatory remarks, I turn to the issue at hand.

  197. [108] For a purchase price resulting trust to arise in favour of Mdm Liew as regards the Boon Lay Property and Shop, she must establish that she made financial contributions towards the acquisition of the Boon Lay Property and the setting up of the Boon Lay Shop. It is common ground that the Boon Lay Property was at the outset (ie, in 1978) leased, not purchased, on a monthly basis from the HDB. Accordingly, no capital contribution was required for the acquisition of the Boon Lay Property. The fact is, there was no interest that could be purchased given that the property was leased on a monthly tenancy. Further, as noted at [39] above, when the Boon Lay Property was subsequently acquired from the HDB in 1993, part of the purchase price - $183,652 - was paid from the bank account of the Boon Lay Shop with the rest being covered by a bank loan. Despite the said sum coming from a Boon Lay Shop bank account, it is not Mdm Liew’s position that this payment constitutes her contribution towards the purchase price for the Boon Lay Property. In fact, it is the 1st Defendant who asserts that this payment came from his fixed deposit account which he broke and deposited into the said bank account. Further, it is not Mdm Liew’s position that she made any of the mortgage payments. Her case on resulting trust is predicated on contributions that were made towards the rent and expenses of the Boon Lay Shop. It is difficult to see how a presumption of a resulting trust in favour of Mdm Liew could arise in such circumstances as regards the Boon Lay Property.

  198. [109] However, the fact that a resulting trust does not arise as regards the Boon Lay Property does not foreclose the possibility that a common interest constructive trust did in fact exist. If there was a common intention, express, inferred or exceptionally implied, between the Deceased and Mdm Liew at the time when the Boon Lay Property was first leased from the HDB in 1978 that she would be the sole beneficial owner of the Boon Lay Property, and she had relied on that common intention to her detriment, there would be a basis for concluding that the Boon Lay Property is beneficially hers. The same approach is also applicable to the Boon Lay Shop.

  199. [110] The burden of proof is on Mdm Liew to establish her beneficial interest in the Boon Lay Property and Shop. She has to show that there was a common intention. Has she discharged that burden? I do not think that she has.

  200. [111] Mdm Liew’s pleaded position is that:

  201. (a) the Deceased recognised her as the owner of the Boon Lay Property and Shop; and

  202. (b) in reliance on this, she made substantial contributions in the form of funds and labour for the Boon Lay Shop, and rent and expenses for the Boon Lay Property from her savings.

  203. [112] Her pleaded position suggests that she relies on an express common intention. The relevant question therefore is whether there was an agreement, arrangement or understanding between the Deceased and Mdm Liew that the beneficial interest of the Boon Lay Property and Shop would be hers. Alternatively, if I am incorrect in my reading of her plea, the relevant question is whether a common intention along the lines asserted by Mdm Liew may be inferred. The central inquiry with respect to both express and inferred common intention is whether the parties had a mutual understanding that Mdm Liew should have the beneficial interest of the Boon Lay Property and Shop. This is the first issue I have to examine.

  204. [113] The second issue is whether Mdm Liew made substantial contributions, and if so, whether they were made in reliance on a common intention. Answering this question would provide an insight into the answer to the first issue. I say this because substantial financial contributions would be suggestive of an express common intention. Such conduct would clearly be referable to and consistent with an express understanding on ownership. It would also be a basis for the inference of a common intention. In this regard, the observations of Lord Bridge of Harwich in Lloyds Bank plc v Rosset [1991] 1 AC 107 (“Rosset”) (at 133) are illuminating:

  205. [114] I am mindful that the Court of Appeal in Chan Yuen Lan endorsed a wider selection of factors than just financial contributions in discerning the parties’ common intention, following Lord Neuberger in Stack (see Chan Yuen Lan at [112]). Nonetheless, financial contributions would lay down a clear if not the clearest marker of a common intention (see also Buthmanaban at [83]). I should also add that financial contributions, as noted in Rosset, would also serve the additional purpose of constituting relevant evidence of conduct in reliance on the common intention. For this reason, I will consider the second issue first.

  206. Did Mdm Liew make financial contributions to the Boon Lay Property and Shop?

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