George Abraham Vadakathu v Jacob George

Chan Sek Keong CJ:

[1] This is an appeal by George Abraham Vadakathu (“the Appellant”) against the decision of the district judge below (“the DJ”) in declaring the will of George George (“GG”) dated 6 December 1998 (“the Will”) null and void on the ground that the Appellant failed to prove that GG had testamentary capacity at the time the Will was made (see George Abraham Vadakathu v Jacob George [2008] SGDC 114 (“the GD”)).

[2] The material facts are as follows. GG had two brothers. The elder brother is George V Abraham (“GVA”), who is the father of the Appellant. The younger brother is Jacob George, the respondent in this appeal (“the Respondent”). GG died on 8 December 2006. As both his parents had died before him, GG’s estate would have devolved equally to his two brothers under the Intestate Succession Act (Cap 146, 1985 Rev Ed) had he died intestate.

[3] GG executed the Will on 6 December 1998 in the presence of a lawyer, Selvadurai Gunaseelan (“Guna”), and Guna’s wife as witnesses. The Will was executed in the house of GG’s father, Mr Vadakathu Abraham George (“VAG”). Guna had known GG and his parents for many years. The Will was prepared by Guna from a draft given to him by VAG. By the Will, GG appointed his nephew (the Appellant) the sole executor and trustee of the Will and gave his entire estate to the Appellant and his two nieces, the sisters of the Appellant.

[4] The Appellant applied for a grant of probate of the Will and found that the Respondent had lodged a caveat against the grant of probate. He thereupon brought these proceedings. The Respondent challenged the validity of the Will on three grounds: (a) lack of testamentary capacity; (b) lack of knowledge of or absence of approval of the contents of the Will; and (c) undue influence in the execution of the Will. The DJ agreed to try the first issue concerning GG’s testamentary capacity as a preliminary issue, and deferred the trial of the other two issues. At the conclusion of the trial, the DJ held that the Appellant had failed to prove that GG had testamentary capacity. This appeal is concerned only with the issue of GG’s testamentary capacity.

[5] GG was diagnosed with schizophrenia in 1957 when he was 18 years old. He was hospitalised in Woodbridge Hospital from August to October 1957. Subsequently, he received psychiatric treatment off and on at the Kallang Government Psychiatric Outpatient Clinic. In 1971, his medical condition became worse and he was further treated from October 1971 to August 2001 by Dr Wong Yip Chong (“Dr Wong”) at Adam Road Hospital (“AR Hospital”) where he attended regular monthly appointments and was treated with anti-psychotic medication. In July 2001, his condition deteriorated and he was reported to be aggressive, paranoid and agitated. Despite being given more anti-psychotic medication, his condition did not fully stabilise. Dr Wong reviewed GG’s condition on 13 August 2001 and recommended hospitalisation, but this was not acted upon. GG received further treatment at the Institute of Mental Health (“IMH”) from 2001 onwards until his death on 8 December 2006.

[6] The medical records in AR Hospital do not provide sufficient evidence of GG’s mental condition at the time he made the Will. The case notes stopped recording any detailed clinical observations from 8 November 1994. Thereafter, and until 13 August 2001, the clinical notes were brief. The medical records in IMH from 2001 show that his medical condition got worse, but there was one short period during which it would appear that he was able to look after himself. I shall return to these medical records later in this judgment.

[7] At the trial, the Appellant, GVA, Guna, a psychiatrist (Dr Francis Ngui (“Dr Ngui”), the Medical Director and Senior Consultant Psychiatrist of AR Hospital), and GG’s former colleague at work, Mohd Yusof bin Salleh (“Yusof”), gave evidence on behalf the Appellant. The Respondent did not testify. Dr R Nagulendran (“Dr N”), a consultant psychiatrist, was the Respondent’s expert witness on GG’s mental condition. At the conclusion of the trial, the DJ relied substantially on Dr N’s expert opinion to find that the Appellant had not discharged the burden of proving GG’s testamentary capacity at the time he made the Will. I will deal with the non-medical evidence first, followed by the medical evidence and then the DJ’s analysis of the evidence and her findings.

[8] The Appellant testified that he had no knowledge of the Will until his father gave it to him days after GG’s death. GG was fond of him and his two sisters and used to spend much time with him before he went abroad for studies in 1992. GG had reminded him that he was the only grandson in the family and that he should study hard to make his grandparents proud of him. He had no personal knowledge of any problems which existed between GG and the Respondent.

[9] GVA testified that he was close to his parents and had lived with them after his first marriage in 1966 until 1974, after his wife died and he needed more living space for his three children. But he would visit his parents every evening. The Respondent moved out of the parents’ house after his marriage in 1979. Initially, he visited his parents regularly, until their relationship became strained due to the Respondent being rude to his father (VAG) and also due to his demands for money from his parents. After VAG’s death, GVA found a note which showed that VAG had given the Respondent and his wife a total sum of $51,435.00 in 1985 to finance the purchase of their flat at Paya Lebar. The note contained a statement signed by VAG which read, “Final payment. Please do not ask for any more money. We are broke.”

[10] GG was greatly upset by the Respondent’s behaviour towards his parents. He disliked the Respondent and his wife, almost to the point of hating them. GG had told GVA that he was suspicious that they were trying to take away the family house. On a few occasions, GG had said angrily that he would “hammer” the Respondent if he ever came to the house. GVA had to assure GG about the safety of the house. After VAG had made his will on 6 December 1998, GG appeared to be satisfied that VAG had provided for him in his will.

[11] GVA was aware of GG’s psychiatric condition from young and his treatment at Woodbridge Hospital and AR Hospital. GG was a slow learner and discontinued his studies after Secondary 2, but he managed to secure temporary jobs, usually on his own, until he was employed by the Tanglin Club (“the Club”). GVA’s affidavit of evidence-in-chief showed that GG was employed by the Club from 1988 until 1999 when he had to retire at the age of 60, and was then re-employed by the Club until November 2001 when he was paid $1,119.25 a month.

[12] GG was very fond of GVA’s three children. He played with them when they were infants and also carried them and walked with them around the neighbourhood. He was particularly fond of the Appellant, who was his only nephew. He continued to take an interest in the children’s welfare and progress in their studies overseas and kept in touch with them. After GG withdrew part of his Central Provident Fund (“CPF”) savings in or about 1989, he gave $39,000 to GVA’s younger daughter who was then studying in Victoria, Canada when she needed some money urgently. GVA was not surprised that, in the light of these events, GG had left his entire estate to GVA’s children.

[13] Under cross-examination, GVA admitted that GG had signed a contract in 2001 for a handphone for a gardener and that he (GVA) had written to IMH for a statement with a view to getting the contract voided on the ground that GG was unwell. He explained that GG had signed the contract as he was trying to help the gardener who was a foreign worker.

[14] Yusof testified that he had joined the Club as a security officer in 1983 and had known GG since the time when GG was employed by the Club as a security guard (GG’s designation was “Watchman/Car Park Attendant”). GG worked under his supervision. No complaint had been made against GG during his employment by the Club. Yusof had no problem instructing GG on his duties and other matters which he understood and carried out satisfactorily. Under the Club’s policy, every employee had to be checked annually by the Club’s doctor. Yusof believed that the doctor was aware that GG was receiving medical treatment. As far as Yusof could see, GG was normal and none of his colleagues noticed anything abnormal about him. Yusof’s evidence was not challenged by the Respondent.

[15] Guna is an advocate and solicitor and has been a friend of the George family since 1965. He testified that, on 3 December 1998, VAG sent GG to Guna’s home to request him to see VAG. Guna went over and was told by VAG that he, his wife and GG wished to make their wills. VAG handed to him three handwritten drafts of three wills and requested him to see if they were in order and, if so, to prepare typed copies for execution. Guna read the drafts and noticed that VAG and his wife had left nothing to the Respondent in their wills, and that GVA was to be the sole executor, with GG as his alternate and the Appellant as GG’s alternate. That evening, Guna asked VAG why GG was to be appointed as alternate executor and not the Respondent, since GG was being treated for a mental illness. VAG replied that the Appellant would assist him, if necessary. Guna asked VAG to reconsider the wills, in relation to the Respondent. He did not query VAG about GG’s will as he was not surprised that GG had named his nephew and nieces as the beneficiaries of his estate since GG was fond of them. Guna was aware that GG disliked the Respondent and, on several occasions, had anxiously asked Guna whether the Respondent could take away the family house and had also said that he would “hammer” the Respondent if he came to the house.

[16] The next evening, VAG handed to Guna amended draft wills in which he and his wife gave a part of their estate to the Respondent. He noted that GG’s will was not amended. The next evening, he gave the typed wills to VAG and asked him to compare them with his amended copies. Later, at dinner, he saw GG reading his will. VAG informed Guna that the wills were in order and he wished for the three wills to be executed that night. He asked Guna and his wife to witness the execution. Guna went to fetch his wife and the three Georges executed their wills before Guna and his wife as witnesses. With respect to GG’s will, Guna stated at paras 18, 19, 22 and 23 of his affidavit of evidence-in-chief as follows:

[17] Guna was cross-examined by counsel for the Respondent. The DJ summarised Guna’s testimony at [25]–[27] of the GD as follows:

[18] Dr Ngui had not examined or treated GG at any time. His medical reports dated 12 June 2007 and 3 September 2007 were based on GG’s medical records with AR Hospital, his interview of GVA and GG’s medical report dated 19 September 2005 from IMH written by Dr Eu Pui Wai (“Dr Eu”), a senior consultant psychiatrist. Dr Ngui did not examine GG’s medical records at IMH. He was of the opinion that the medical reports from IMH from 2001 onwards were irrelevant in determining GG’s mental capacity in December 1998. The relevant portions of the medical reports dated 19 September 2005, 12 June 2007 and 3 September 2007 (after omitting the matters set out in [5]–[6] above) were as follows:

(a) GG showed improvement in his symptoms and maintained a satisfactory remission of his illness from 1971 to 2001 when he was being treated with anti-psychotic medication by Dr Wong.

(b) In July 2001, GG’s condition deteriorated and he was reported to be aggressive, paranoid and agitated. He continued to attend his out-patient appointments regularly but his condition was not fully stabilised despite an increase in his anti-psychotic medication. Dr Wong reviewed GG’s condition on 13 August 2001 and recommended hospitalisation, but his advice was not acted upon. GG did not turn up for his appointment on 30 August 2001.

(c) The AR Hospital records showed that GG was in a satisfactorily stable phase of his schizophrenic illness when he made the Will on 6 December 1998. The two closest review dates, 10 November 1998 and 8 December 1998, showed that his mental state appeared to be stable and satisfactory. His anti-psychotic medication was actually reduced on 8 December 1998, indicating that he was quite stable in his mental state.

(d) The AR Hospital records did not show any change of significance in GG’s mental state in the years 1998 to 1999.

(e) As to GG’s testamentary capacity, Dr Wong did not address this issue and there was insufficient data in the medical records to make a definitive conclusion.

[19] Dr Ngui was cross-examined by the Respondent’s counsel. His testimony under cross-examination was as follows:

(a) When it was put to him that GG had never recovered from schizophrenia and was always on medication, Dr Ngui said that GG was in remission and his condition had stabilised, but he had not fully recovered. When asked whether the mental function of a patient under medication would be affected to a certain extent, he replied that a person in remission under proper control with medication could function and behave like any ordinary person who had no such illness.

(b) When he was asked whether the only way to tell whether someone like GG had testamentary capacity was for a psychiatrist to examine him on the day he made the Will, Dr Ngui replied: “Yes, that would be ideal.”

(c) When he was asked whether it would be irresponsible for a psychiatrist to come to court to say that, based on the medical notes of AR Hospital, GG had testamentary capacity, Dr Ngui replied that he was not certain.

(d) When he was asked what a reasonable psychiatrist would have done to ascertain that GG had testamentary capacity, Dr Ngui replied that he would have studied his entire psychiatric history and done a mental examination involving his cognitive functions, especially in regard to his memory. He would also have checked and excluded any delusions that he might have harboured against family members, and also whether the three legal criteria would have been satisfied, viz, whether he knew: (i) what a will was; (ii) what his estate comprised; and (iii) who his potential beneficiaries were.

(e) When he was asked whether he agreed with the opinion of Guna that GG knew what he was doing from the answers given by GG to the five questions Guna had asked (see [16] above), Dr Ngui replied that he would have preferred that a doctor had examined him. When further pressed on what he meant, he replied that, due to the state of GG’s psychiatric illness, Guna’s series of five questions was not enough to establish GG’s testamentary capacity (ie, without a prior medical examination).

(f) When he was asked whether someone looking at the IMH notes might have come to a different conclusion on the testamentary capacity of GG (ie, that GG’s condition was so serious that he could not have had testamentary capacity), Dr Ngui replied that that depended on GG’s condition after he had left AR Hospital.

(g) When he was asked whether, based on his comments on Guna’s affidavit of evidence-in-chief, he would say that it was unsafe for the court to conclude that GG had testamentary capacity, he replied that Guna’s questioning prior to the execution of the Will fell short of the standard of a psychiatric assessment for it to be completely ideal. When pressed further on this matter, he replied, “To be watertight would still need psychiatric assessment.” When it was further put to him “So – unsafe?”, he replied “Yes”.

[20] Dr Ngui’s evidence in re-examination was as follows:

(a) When he was asked what the clinical notes dated between 5 May 1998 and 8 December 1998 had said about GG’s condition, he replied that GG was found to be “Well”, “Better”, “OK”, “Same”.

(b) When he was asked about GG’s medication, he replied that GG was on two kinds of drugs at that time, viz, Apo Benztropine and Apo Trifluoperazine, the first being an anti-psychotic medication for mental disorders like schizophrenia, and the second being used to counter the side effects (stiffness and hand tremors) of the first. He explained that the drugs were directed at controlling psychotic symptoms, ie, delusional beliefs, hallucinations and thought disorders.

(c) When he was asked for his assessment of GG’s condition from the case notes for May 1998 to February 1999, he replied that GG was in a state of remission, ie, he had no active psychotic symptoms. He also said that a patient in remission would be able to function to his previous level of intellectual ability before his illness started (ie, if he had Secondary 2 level education he would go back to that level). He would be able to take public transport to work and be capable of managing his bank accounts.

(d) When he was asked whether a patient in remission would be able to give instructions on executing a will, he replied, “Probably able to”. He agreed that a schizophrenic with a long history of the illness was not necessarily incapable of making a will. When asked specifically of GG’s condition in December 1998, Dr Ngui said that GG was in remission, stable and therefore could give instructions for the Will.

(e) When asked about the post-2001 IMH records, Dr Ngui said they were irrelevant to determine GG’s state of mind in December 1998.

[21] Dr Eu (who was not called as a witness) gave a medical report dated 19 September 2005 on GG’s condition as follows:

[22] Dr N’s medical report was annexed to his affidavit of evidence-in-chief. He was cross-examined on his report and also questioned by the DJ. His evidence is set out at [28]–[34] of the GD:

[23] Before answering the court’s query, which has been set out at [34] of the GD (see [22] above), Dr N had also given the following answer to the DJ’s earlier question:

It should be noted that Dr N, in his report dated 10 October 2007, was of the opinion that GG did not have testamentary capacity. He reiterated this opinion in the answer quoted above. However, when questioned by the DJ (see [34] of the GD), in the context of GG appearing to be normal while in a state of remission, he said that even then GG “in all probability” did not have testamentary capacity.

[24] Another material reply given by Dr N during cross-examination by counsel for the Appellant was as follows:

As will be seen later (see also the GD at [40], reproduced at [25] below), Dr N’s opinion on this point was contradicted by the non-medical evidence.

[25] The DJ did not accept the medical and non-medical evidence adduced by the Appellant. She found Dr Ngui’s testimony – that GG would probably have the capacity to give instructions to make a will when he exhibited no active psychotic symptoms – to be rather “over-stated”. She found the totality of the evidence for the Appellant equivocal. Instead, she accepted Dr N’s opinion that GG did not have testamentary capacity on the grounds that his testimony was comprehensive and had a better foundation. Her findings are set out at [35]–[40] of the GD as follows:

[26] In the light of her findings as set out in these passages, the DJ held that the Appellant had failed to prove, on a balance of probabilities, that GG had the requisite testamentary capacity to execute the Will. At [43] of the GD, the DJ explained her decision as follows:

[27] It can be seen from the DJ’s evaluation of the medical evidence that the DJ placed almost total reliance on Dr N’s medical opinion to support her conclusion that the Appellant had not discharged the burden of proving that GG had testamentary capacity at the time he made the Will. The finding was that the medical evidence and non-medical evidence adduced for the Appellant were, collectively, insufficient to outweigh Dr N’s opinion that GG definitely or in “all probability” did not have testamentary capacity.

[28] The main issue in this appeal is whether the DJ’s decision was correct, having regard to the law on testamentary capacity and the evidence adduced in these proceedings. I will first set out the law on testamentary capacity and the burden of proof before moving on to an assessment of the evidence to determine whether GG had testamentary capacity when he made the Will in 1998.

[29] The legal requisites of testamentary capacity were enunciated by the English Court of Appeal in Banks v Goodfellow (1870) LR 5 QB 549 (“Banks”) at 565. They may be summarised as follows:

(a) the testator understands the nature of the act and what its consequences are;

(b) he knows the extent of his property of which he is disposing;

(c) he knows who his beneficiaries are and can appreciate their claims to his property; and

(d) he is free from an abnormal state of mind (eg, delusions) that might distort feelings or judgments relevant to making the will.

This statement of the law in Banks has been accepted and followed by our courts and also the courts in the Commonwealth.

[30] In Banks, the testator had been confined in a lunatic asylum in 1841. After discharge, he remained subject to delusions. He made his will on 28 December 1863 and gave all his property to his niece. He died on 28 July 1865. The opposer of the will was the testator’s heir at law. The propounder of the will was the heir of the niece. The jury upheld the will on the grounds that, despite suffering from delusions (that he was pursued and molested by a certain man, who was already dead, and by devils and evil spirits), the testator had made his will during a lucid interval and that the delusions were not capable of having any influence on the provisions of the will. The English Court of Appeal upheld the direction on the law (as summarised at [29] above) and also the jury’s finding.

[31] The court made no distinction between a case of lack of testamentary capacity arising from senile dementia and one arising from unsoundness of mind due to a mental disease (which would include schizophrenia). At 570–571 Cockburn CJ said:

[32] The above passages state the following propositions:

(a) where the testator is subject to an insane delusion, there is a presumption against his having testamentary capacity;

(b) where such a condition exists, it may be difficult to tell whether it exists in some other form;

(c) it may be equally difficult to tell how far the delusion may or may not have influenced the testator in the particular disposal of his property;

(d) the presumption against a will made under such circumstances becomes additionally strong where the will is an inofficious one, that is to say, one in which the testator has disregarded the element of natural affection and the claims of near relationship, eg, where he gives all his property to a stranger;

(e) but if the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, a will made under such circumstances is good; and

(f) the rationality of the will tends to support a finding that, irrespective of the question of dormant delusions, the testator was in possession of his faculties when the will was executed.

[33] In the Straits Settlements case of In the Matter of the Estate of Eusoff Mohamed Salleh Angullia [1939] MLJ 100 (“Estate of Eusoff”), the court placed particular emphasis on the rationality of the will as evidence of testamentary capacity in circumstances similar to those in Banks. In that case, the testator had suffered from attacks of insanity in the past, and had on four occasions, 1910, 1918, 1924 and 1934, been certified as insane (due to alcohol addiction and being detained in a mental hospital for short periods). The medical evidence showed that in 1918 and 1934 the diagnosis had been “imbecility”; that in 1910 and 1924 the diagnosis had been “mania”. It was alleged that the testator had been removed from the mental hospital in 1934 while still insane and had never recovered and had continued to have delusions, and that, as a result, he was incapable of making a will. However, there was also evidence that he had had long lucid intervals between the attacks. On 4 June 1938 he made a will and codicil giving most of his estate to charity. The will was attested by the testator’s solicitor and his doctor, both of whom deposed to the fact that the testator, though physically weak and mentally dull at the time, appeared to be of sound mind, memory and understanding. The testator died three days later, on 7 June 1938, from a diabetic attack.

[34] Horne J’s evaluation of the evidence was as follows (at 101):

[35] At 108, Horne J stated his findings as follows:

[36] It can be seen from Horne J’s analysis of the evidence that he placed significant weight on the rationality of the will as indicative of the testator’s mental state, and that factor, together with the fact that the testator did have numerous lucid intervals, persuaded him that the testator had testamentary capacity when he made his will even though there were several conflicting opinions from lay and medical witnesses.

[37] The burden of proof of testamentary capacity has been stated by the Court of Appeal in R Mahendran v R Arumuganathan [1999] 2 SLR 579 (“Mahendran”) at [15] to be as follows:

[38] The DJ quoted this statement in her GD and also John G Ross Martyn, Stuart Bridge & Mika Oldham, Theobald on Wills (Sweet & Maxwell, 16th Ed, 2001) at para 3-07 as follows:

[39] In my view, the presumption referred to in para (b) of the above quote can only arise in a case where the serious mental illness is sufficient to cause testamentary incapacity. It is only in such a case that a continuation of the mental illness results in a continuation of the lack of testamentary capacity. In other words, the lack of testamentary capacity must first exist before it can continue. The presumption in that passage from Theobald on Wills refers to the continuance of an incapacitating serious illness. For example, if on Day 10 the testator has no testamentary capacity and he makes a will on Day 15, the presumption arises that the illness has continued with his inherent lack of testamentary capacity. The statement does not mean that, because a testator has a serious illness, it must follow that he lacks, or is presumed to lack, testamentary capacity. After all, he may have lucid intervals. That condition has to be shown as inferable from his mental illness. When analysed in this way, the presumption adds nothing to the burden of proof which is placed on the propounder of the will. When faced with an allegation that the testator was seriously ill when he made the will, the propounder has to show that the illness had not affected the testator’s testamentary capacity. That is why Theobald on Wills goes on to state that the person propounding the will may rebut the presumption by establishing that the testator made the will during a lucid interval or after recovery from the illness. In my view, the more serious the illness prior to the making of the will is, the higher should be the threshold of proof, and, conversely, the less serious the illness, the lower the threshold of proof. As will be seen in this case, there was disagreement between the two expert witnesses as to the gravity of the illness that GG was suffering from prior to the making of the Will.

[40] To determine whether the Appellant has discharged the burden of proving that GG had testamentary capacity when he made the Will, it is necessary to examine the evidence in relation to the following questions:

(a) Was there sufficient medical evidence to show that during the period between 1957 and 2001, GG’s schizophrenia was so serious that he could not or did not have testamentary capacity to execute the Will?

[41] Although GG was suffering from schizophrenia from 1957 onwards until his death, both Dr Ngui and Dr N (neither of whom had met or treated GG) accepted that the AR Hospital medical notes from 1971 to 2001 contained a paucity of information on GG’s testamentary capacity. Dr Ngui stated in his medical report dated 12 June 2007 that GG’s earlier symptoms included restlessness, insomnia, agitated episodes and irrational speech. The case notes stopped recording any detailed clinical observations from 8 November 1994. Thereafter, and until 13 August 2001, the clinical notes were brief and contained a paucity of information on the kinds of delusions (if any) which GG was suffering from or the incidence or intensity of such delusions. There was also no direct evidence of the nature, incidence or intensity of GG’s delusions or hallucinations, if any, except that he was treated with anti-psychotic drugs. Dr Ngui also stated that there was insufficient data in the medical records to make a definitive conclusion on GG’s testamentary capacity. In fact, there was insufficient medical evidence to show that GG did not have testamentary capacity around 1998 and also at which point of time, during this period, it could be said that GG did not have testamentary capacity. Neither Dr Ngui nor Dr N testified as to when GG might have ceased to have testamentary capacity.

[42] Dr Ngui’s evidence was that the AR Hospital records showed that GG maintained a satisfactory remission of his illness from 1971 to 2001, as the two closest review dates (10 November 1998 and 8 December 1998) showed that his mental state appeared to be stable and satisfactory. GG’s anti-psychotic medication was reduced on 8 December 1998, indicating that he was quite stable in his mental state.

[43] Dr N did not express a direct opinion on whether or not GG was in remission in 1998 or at any period of time, but his general and unqualified opinion that GG did not have testamentary capacity implied that GG was in the same condition when he executed the Will. This unqualified general opinion (which was retrospective in nature) is, in my view, unsatisfactory for a number of reasons. With respect to the issue of GG’s remission specifically, Dr N’s opinion is unsatisfactory because it completely glosses over the question as to when GG’s mental faculties would have begun to deteriorate and the degree and the extent of their progression, taking into account the periods when GG’s actions and behaviour suggested that he was in remission. Dr N’s opinion covered the entire period of 42 years of GG’s illness without giving GG the benefit of any periods of remission that he had during this period. How did he deal with the medical and non-medical evidence that was indicative of GG’s remission?

[44] With respect to the AR Hospital medical notes which recorded phrases such as “Well, okay, better”, Dr N dismissed them as unsatisfactory in that they did not indicate GG’s symptoms, only GG’s diagnosis and medication. With respect to GG’s 13-year employment with the Club as a security guard, Dr N explained that GG might be stable, ie, not exhibiting positive symptoms (like hearing voices, believing people are trying to harm him, behaving aggressively or violently, or showing emotional disturbance) during this period, but that could be due to his being continuously on medication. His view was that the positive symptoms could be controlled by medication (such as anti-psychotic drugs), but not the negative symptoms (like lack of initiative, drive or motivation). He went on (see [22] above and the GD at [31]):

[45] In my view, there are a number of assumptions in this reply on which there is no empirical proof. The first is Dr N’s point that working as a security guard requires a different kind of mental capacity from making a will. Without saying so explicitly, Dr N seemed to be suggesting that GG’s satisfactory performance as a security guard for such a long period of time (his service was extended for another two years when he retired at the age of 60 years) did not mean he had the same amount of mental capacity as was needed for possessing testamentary capacity. In this connection, when asked by the DJ how he would determine the state of GG’s cognitive function and ability, Dr N replied that he would test memory, attention, concentration, orientation and intellectual ability. However, as Dr N had never examined GG at any time, he was not in a position to tell whether GG would have failed any of these tests in 1998 when he executed the Will. Dr N’s evidence was effectively that, since GG did not undergo such an examination, he would, or would in all probability, have failed these tests. In this respect, I should add that Dr Ngui was also of the view that, ideally, GG should have been examined by a doctor before he made the Will just to be sure that he had testamentary capacity.

[46] Dr Ngui and Dr N both accepted that a schizophrenic in remission would show no positive symptoms (such as delusions and hallucinations). However, Dr Ngui was of the view that, because GG had shown no such positive symptoms for some time prior to the execution of the Will, he was in remission and would revert to the level of his intellectual ability at a Secondary 2 standard and thus he would probably have sufficient mental ability to make a will. Dr N, on the other hand, disagreed. His view was that the positive symptoms could be controlled by medication but the negative symptoms of schizophrenia (lack of initiative, drive or motivation) might have continued in a patient with GG’s medical history. Such a patient’s cognitive functions could continue to deteriorate. Hence, in his view, because GG was suffering from 42 years of a progressive illness, GG’s mental faculties would have deteriorated to such a degree and an extent that he was not capable of making a will. However, this opinion again had no reference whatever to GG’s real condition since Dr N had never examined GG. There was also nothing in the AR Hospital medical notes to show that GG had any negative symptoms. Indeed, there was non-medical evidence of some initiative on the part of GG. He looked for work and was able to get odd jobs on his own. He managed to get employed by the Club for 13 years. There was evidence that he was aware of the benefits of an overseas education and was sufficiently concerned to advise the Appellant to study hard as he was the eldest grandson in the family. He was well enough to decide to give a substantial sum of money to his niece when she was abroad. These are not the actions of a man who had no understanding of what was important in life. He went about his life and work for a long period of time without any manifestation that he was mentally unstable. Thus, instead of coming to what would be a reasonable, if not the natural, conclusion of an objective observer, ie, that GG was in remission, Dr N came to the opposite conclusion. In contrast, Dr Ngui drew the reasonable conclusion, even though it was not definitive.

[47] There was another aspect of Dr N’s opinion on GG’s psychiatric condition that was also not satisfactory. When Dr N was asked whether a person with a mental condition like GG would be able to manage a bank account, he replied that it was unlikely (see [24] above). This opinion was contrary to the opinion of Dr Ngui and the evidence of the Appellant, Yusof, Guna and Dr Eu’s medical report dated 19 September 2005. Dr N’s opinion on this point was also contradicted by the evidence. The DJ regarded this discrepancy as inconsequential because it did not discredit in toto Dr N’s forceful opinion that 42 years of the progressive illness had deprived GG of his testamentary capacity. In my view, the DJ erred in not giving sufficient weight to the implications of this discrepancy in Dr N’s testimony (see [59] below).

[48] I do not accept Dr N’s opinion that GG was not in remission prior to his making the Will. His opinion exhibited a degree of inflexibility that would not accommodate any contrary views, in spite of the objective evidence suggesting the contrary. As will be seen (see [50] below), Dr N’s opinion was based on a hypothetical case of a person who had suffered 42 years of a progressive illness, with relapses in the last five years of his life. The hypothetical case gave little or no weight to the existence of periods of remission. It is contrary to evidence which showed that GG was in remission. Having regard to the medical and the non-medical evidence adduced by the Appellant, I find, on a balance of probabilities, that GG was in remission when the Will was executed. This brings me to the question whether GG had testamentary capacity in 1998 when he was in remission.

[49] Dr Ngui testified that, based on the clinical notes of AR Hospital, GG had stabilised under treatment and was in remission. He also stated that a schizophrenic in remission would probably be able to give instructions on executing a will.

[50] Dr N, on the other hand, was strongly of the opinion that GG did not have testamentary capacity in December 1998. His view was that GG’s long illness would inevitably have taken such a toll on his mental faculties as to render him incapable of satisfying the legal criteria for making a will. Dr N was questioned by the DJ on this opinion, and his replies were as follows:

[51] It can seen from the above passages that Dr N’s opinion on GG’s lack of testamentary capacity ranged from certainty to a high degree of probability. But to determine the cogency of his opinion, it is necessary to analyse how he put it. His hypothetical case (italicised above) was based on the premise that, because GG had relapses in the last five years of his life from 2001, his condition was not stable (and he therefore could not have, or in all probability did not have, testamentary capacity in 1998). That would be the corollary of the hypothesis. Dr N’s hypothetical argument may be reformulated as follows:

[42] years of disease (= lack of testamentary capacity) + relapse = progressive illness = false remission

[52] Dr N’s hypothetical case is neat and tidy. But its critical weakness is that it is based on GG not having any periods of remission which, as I have pointed out, is contrary to the evidence. Dr N simply dismissed all medical and non-medical evidence which was indicative of GG being in remission. Expert opinions should have a factual basis, and, if there are no facts, then they should at least be backed by medical case histories of a similar nature. The DJ did not ask Dr N to produce case histories or textbook opinions to show that, in a case like GG’s, the patient would not be likely to have testamentary capacity. Indeed, if this were the case, it would have been unlikely that another psychiatrist would contest the opinion. But Dr Ngui disagreed with Dr N as he was of the view that the medical records in IMH on GG’s condition were irrelevant to the determination of GG’s testamentary capacity in 1998.

[53] Another unsatisfactory feature of Dr N’s opinion was his treatment of Guna’s evidence. Guna testified that he had always had normal conversations with GG even though they might have been rather short ones. On the night before the signing of the Will, GG appeared to have been normal as his father sent him to see Guna. On the night of the signing of the Will, Guna saw GG reading the Will. GG also looked and answered Guna’s questions like a normal person when he signed the Will. Guna’s observations would tend to show that GG was in a state of remission.

[54] In fact, Guna’s evidence went further than this. He testified that he asked GG five questions to test whether GG knew what he was signing was a will and also the contents of the Will. He said that he asked the questions because he was aware that GG was mentally ill. What he did not know was that GG had schizophrenia. He said that, from the answers given, he was satisfied that GG knew that the document he was about to sign was a will and that he would be giving away all his property to his nephew and nieces and that the nephew (the Appellant) would be appointed the sole executor and trustee of the Will.

[55] Dr N did not contradict Guna’s observations and opinion directly, but obliquely dismissed them as worthless when he was re-examined by the Respondent’s counsel, after being cross-examined by the Appellant’s counsel. This was what he said:

When he was re-examined, Dr N said:

It may be noted that Dr N did not answer the last question directly in re-examination. His answer was a subtle shift from his previous answer given under cross-examination. He said that Guna should have obtained a medical opinion, thereby suggesting that, because Guna did not do so, Guna’s opinion that GG had testamentary capacity was unreliable or worthless. Guna’s evidence was that he did not see any need to call a doctor to examine GG as he appeared normal and could understand Guna’s questions.

[56] Another unsatisfactory feature of Dr N’s evidence was that he avoided answering questions on whether, given the simple terms of the Will, GG could not have had testamentary capacity to execute it. Dr N’s evidence on this point is as follows:

[57] Dr N’s replies to counsel’s questions suggested that he did not disagree that making a simple will did not require “great” testamentary capacity. However, he also avoided answering whether GG had the capacity to make a simple will (eg, in the terms of the Will) that counsel had outlined to him. At the same time, he adroitly rejected Guna’s observations on GG’s mental capacity as unreliable, and also suggested that GG did not have testamentary capacity even if he were in remission.

[58] Thus, Dr N was able to maintain his opinion that GG had no testamentary capacity in 1998 by reference to his hypothetical case. However, as I have mentioned earlier, Dr N did not attempt to give any date on which GG could be said to have lost his testamentary capacity, except that he did not have it in 1998. But even a progressive illness like schizophrenia cannot mean that, from day one of the onset of the illness, the patient ceases to have testamentary capacity. This omission would leave in considerable doubt Dr N’s opinion that GG’s condition had deteriorated to such an extent that he did not have testamentary capacity in 1998. In my view, Dr N’s opinion, based on his hypothetical case, is what it is – a hypothetical case without a firm factual foundation. The evidence showed that GG was in remission in 1998 and Guna’s testimony showed that GG understood what it was that he signed that night in his father’s house. For these reasons, I am not persuaded by Dr N’s hypothetical argument.

[59] The DJ accepted practically everything Dr N said about GG’s illness, except his opinion that a person in GG’s condition would not be likely to be able to make a will. She accepted that GG’s ability to manage his financial affairs meant that Dr N was wrong in stating that a person in GG’s condition was unlikely to be able to do so. However, she “did not regard this as sufficient to discredit [Dr N’s] evidence in toto” (which was that a person “suffering from schizophrenia with the positive symptoms of this illness being brought under control by anti-psychotic medication could perform simple transactions but the cognitive functioning required to make a will was a different consideration”) (at [40] of the GD). The DJ did not appear to have given sufficient weight to the fact that if Dr N’s opinion on this rather simple matter was contrary to the facts, he could also be wrong in his opinion on the much more complicated issue of GG’s testamentary capacity (which opinion is based on his hypothetical argument). She discounted the possibility that, as GG could manage his financial affairs, he could have been in remission and capable of making a simple will (which might or might not require the same degree of cognitive understanding as that required for managing his finances). She also did not consider that Dr N had never stated at what point of time GG’s mental capacity began to deteriorate to the extent that he ceased to have any testamentary capacity. She did not give sufficient consideration to all the non-medical evidence that showed that GG was, to all appearances, in remission around the time he executed the Will, and in particular she rejected the sufficiency of Guna’s questions to GG and GG’s answers to such questions for the wrong reasons.

[60] The DJ gave two reasons for rejecting Guna’s evidence on GG’s testamentary capacity. They are: firstly, the progressive illness would have taken a toll on GG’s mental functions such that GG would not have testamentary capacity (at [39] of the GD), and secondly, Guna was not aware that GG was suffering from schizophrenia at the time he questioned GG (at [38]–[39] of the GD). At [40] of the GD, she explained as follows:

With respect, while the reasoning in this holding may seem logical, it did not follow that GG’s impairment necessarily meant that he had no testamentary capacity to make a simple will.

[61] In Banks ([29] supra), the court considered whether the testator’s mental disorder “prevent[ed] the exercise of his natural faculties” (at 565). It recognised that the mere impairment of cognitive or mental functions did not necessarily lead to testamentary capacity being impaired. Cockburn CJ, at 560 of the judgment, recognised that mental diseases could affect people in different degrees. Dr Ngui, when questioned on this point in the context of GG being in remission, expressed the view that just because a man was a schizophrenic and had a long mental illness did not mean that he could not give instructions to make a will. On the other hand, Dr N’s forceful opinion was that GG did not have testamentary capacity in 1998 because of his progressive illness from 1957 and the relapses he had from 2001. Dr N certainly gave his views very surely and forcefully, but ultimately, the court must look at the objective evidence produced before it. In this connection, it is pertinent to recall Cockburn CJ’s statement in Banks (at 570) that:

This statement is particularly apposite in the light of Dr N’s evidence (which had no actual bearing on GG’s case) that whilst medication could control his positive symptoms of schizophrenia, the negative symptoms might continue.

[62] Dr N’s evidence was that the toll on GG’s mental faculty was such that he could not have any testamentary capacity. But, as I have mentioned earlier, Dr N’s opinion was based on GG not having been in remission at all. The DJ found that Guna’s five questions and GG’s answers to them were inadequate “as there is significant doubt whether [GG] had the cognitive ability to understand the purport of those questions” (at [39] of the GD). With respect, this reasoning is putting the cart before the horse. Instead of considering whether Guna’s five questions and GG’s answers were sufficient to indicate testamentary capacity, she decided that they could not because GG’s mental capacity had already been impaired. But, of course, on this basis, whatever questions that Guna might have asked GG would not have repaired his mental capacity. The fact was that GG gave rational answers to Guna’s five questions, all of which were relevant to proving whether he understood his action in signing the Will. He replied, inter alia, that he did not want the Respondent “to touch his things”, with reference to Guna’s question of why he wanted to appoint the Appellant rather than the Respondent as his executor. For all these reasons, I am unable to accept the DJ’s implicit conclusion that Guna, an experienced solicitor of about 30 years’ standing, was incapable to telling whether a person had the mental capacity to make a will.

[63] The DJ’s second reason fails to give sufficient consideration to the fact that Guna was aware that GG had a medical condition from young, although he admitted that he did not know it was schizophrenia medically. It should be noted that the DJ did not disbelieve Guna’s evidence. She rejected it because it was inconsistent with Dr N’s opinion that GG did not have testamentary capacity. In my view, the DJ failed to direct her mind to the sufficiency of GG’s answers to Guna’s questions as a test of testamentary capacity, in the same way that she failed to direct her mind to Dr N’s failure to answer the question in relation to Guna being satisfied that GG had testamentary capacity (see [55] above).

[64] In a case of this nature, the function of the court is to decide whether the testator has testamentary capacity at the relevant time. This involves making a finding of fact by applying the law to the evidence. In matters involving specialised knowledge, such as schizophrenia, the court has to rely on the opinion of medical experts, but it does not have to accept any medical opinion if it is not supported by the objective evidence. An expert opinion should have at the least a substratum of facts. Although Dr N had considered the clinical notes from AR Hospital (which were not helpful to him) and from IMH (which were decisive for him), his opinion, no doubt backed by his clinical experience and knowledge, was really based on the hypothetical case which he had constructed from the clinical notes to explain why he considered that GG did not have any testamentary capacity. The hypothesis itself was based on his version of the reconstructed facts which disregarded the actual evidence that contradicted the factual premises of his hypothetical case. For this and other reasons, I am unable to accept Dr N’s opinion on GG’s lack of testamentary capacity at the relevant time.

[65] In the present case, the expert opinions were not unanimous. Dr Ngui did not agree with Dr N, although he gave his evidence in a less assertive fashion. The law is clear in cases where the expert witnesses disagree: the court may place greater weight on factual witnesses (see Mahendran ([37] supra) at [38]). In Ng So Kuen Connie v PP [2003] 3 SLR 178, the court upheld the trial judge’s decision to reject the evidence of both psychiatrists even though they were in agreement with each other, and said at [32]:

[66] In my view, the DJ was unfortunately intimidated by Dr N’s forceful exposition of GG’s lack of testamentary capacity, and virtually allowed him to decide this issue. This was contrary to the nature of the judicial function. The court must decide the issues of fact and law, and not allow an expert to decide them (see Gunapathy Muniandy v Khoo James [2001] SGHC 165 at [12.3]). In the present case, the DJ was too deferential to Dr N’s expertise and did not apply her mind sufficiently to the medical and non-medical evidence which showed that GG was in remission and was able to understand what a will was. She should have given more weight to the non-medical evidence. One such piece of evidence is the rationality of the Will itself, a matter I will now examine.

[67] Besides being simple, the Will was also entirely rational. Neither Dr Ngui nor Dr N was questioned on the rationality of the Will in relation to GG’s testamentary capacity. The DJ did not raise it either. In my view, the rationality of a will has a significant bearing on the testator’s rationality, and is a sound indication of testamentary capacity. In Banks ([29] supra) and Estate of Eusoff ([33] supra), the courts took into account the “inofficiousness” of the will as indicating a lack of testamentary capacity. In my view, just as an inofficious will is some evidence of an irrational testator, a rational will is some evidence of a rational testator. In the present case, not only was the Will not inofficious, it was completely rational and something that was naturally expected. As a brother of the Respondent, GG was under no familial or moral duty to give anything to the Respondent. GG was not close to the Respondent; in fact, he detested him. On the other hand, he was fond of his nephew and nieces. It was therefore not surprising, even natural, for GG to have given them his estate out of love and affection for them. Indeed, given the relationship between GG and the Respondent, it would have been unnatural for GG to have given anything to the Respondent. In these circumstances, it would be reasonable to argue that if GG had given a substantial part of his estate to the Respondent, it would have raised a reasonable doubt as to his testamentary capacity!

[68] In Cartwright v Cartwright (1793) 1 Phill Ecc 90; 161 ER 923 (referred to in Banks), Sir William Wynne was of the opinion that the rationality of the act done afforded an effectual test of the mental capacity of the party doing it, even in the case of a will executed in a lunatic asylum. At 100; 927 he said:

[69] Horne J adopted the same approach in Estate of Eusoff (see [35] above). I agree with this rather commonsensical view, in the absence of strong evidence that a testator has no testamentary capacity. In the present case, the DJ ignored this aspect of the case entirely. She failed to take into account the rationality of the Will and simply accepted Dr N’s opinion (which also did not take into account this important point).

[70] For all these reasons, I am of the view that the Appellant has adduced more than sufficient evidence to rebut the presumption (even assuming that it is applicable) that GG lacked testamentary capacity arising from his schizophrenia. I am satisfied, on an analysis of the whole of the evidence, that the Appellant has discharged the burden of proving that GG had testamentary capacity when he made the Will.

___________________

Notes of evidence of 31 January 2008, p 82.

Id, at p 84.

Notes of evidence of 31 January 2008, at pp 82–83.

Notes of evidence of 31 January 2008, p 79.

Id, at p 80.

Id, at p 77–78.