Court of Appeal · Decided 28 July 2015

Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin

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[2015] SGCA 36Case no. Civil Appeal No 112 of 2014

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Sundaresh Menon CJ (delivering the judgment of the court):
Introduction
[1] A deed was signed by several beneficiaries renouncing their interests in their father’s estate in favour of the sole administrator of the estate and one other beneficiary. The deed was executed more than a decade ago and no attendance note was prepared at that time. The solicitor who was primarily responsible for preparing the deed and attending to its execution claims that he “must have” fully explained its nature and contents to the beneficiaries, and that they, in turn, must have understood the same. At the same time, the solicitor admits that he did not meet or communicate directly with the beneficiaries who were renouncing their interests before the day on which they signed the deed. He was content to receive his instructions entirely from the sole administrator, and he proceeded to prepare the deed on that basis even though the sole administrator was a principal beneficiary under the deed. The solicitor says that he did not independently verify the instructions he was given because he never saw any potential conflict of interest. From first to last, he saw this as a non-contentious probate matter. The solicitor took comfort in the fact that he could discern no sign of disagreement when the parties finally came to his office to execute the deed. The solicitor apparently thought that a conflict of interest had to be manifested in a palpable conflict or discord between the parties at an interpersonal level rather than in their interests. As a result, the solicitor overlooked the possibility of such a conflict between the interests of the beneficiaries who were giving up their rights to their father’s estate under the deed and those of the sole administrator, who was to receive a substantial part of those rights.
[2] The central question that this gives rise to is whether it can safely be concluded in these circumstances that the solicitor had furnished the beneficiaries with a sufficient explanation of what the deed of renunciation entailed such that they fully and fairly understood what they were signing when they executed the deed.
The background facts
The parties, the disputed property, and the family business
[3] The head of a Muslim household (“Father”) passed away on 15 March 2000, and was survived by his wife and four grown-up children. The wife (“Mother”), her eldest son (“Jahir”), and her two daughters (“Aysha” and “Noorjahan”) are the appellants in this appeal (collectively, “the Appellants”), while the second son (“Dawood”) is the sole respondent. At the centre of their dispute is the main asset which Father left behind upon his death, namely, the family home at 4 Merryn Terrace (“the Property”). There are other assets in Father’s estate (see [60] below), but those assets are not the subject of the present family dispute and, furthermore, are relatively low in value as compared to the Property.
[4] Father purchased the Property in 1979 and registered it in his sole name. The family initially lived there together. Noorjahan was the first to move out in 1992, followed by Aysha in 1996, and Jahir in 2000. All three siblings did so after getting married. Dawood, however, never actually moved out of the Property, although it appears from his evidence that he purchased another property with his wife sometime in November 2011 and thereafter divided his time between the two properties. Mother lived in the Property at all material times until her death on 15 March 2015, just before the hearing of this appeal.
[5] Father suffered a stroke sometime in or around 1990. This left him bedridden. Until then, he had operated a mutton stall at Tekka market. That business was the family’s only source of income. Jahir helped out at the stall until Father’s stroke, after which he took over the running of the business. At about this time, Dawood, who was then a first-year accountancy student at Nanyang Technological University (“NTU”), put his studies on hold in order to assist Jahir in running the stall, which was facing some financial difficulties. Things stabilised subsequently and Dawood moved on in 1996. However, instead of returning to NTU to complete his studies, he enrolled as a cadet pilot with Singapore Airlines. He subsequently became, and continues to be, a pilot with Singapore Airlines.
Dawood obtains the first Certificate of Inheritance in 2000
[6] Just four months after Father’s passing in March 2000, Dawood, unbeknownst to the Appellants, took the first step towards administering the estate. Dawood applied to the Syariah Court for what is known as a Certificate of Inheritance. He wrote a letter dated 13 July 2000 to the Syariah Court for this purpose, but a copy of that letter was never produced in these proceedings.
[7] Under Muslim personal law, matters of succession are determined by the Syariah Court, which issues a Certificate of Inheritance at the request of the prospective heirs. It is not disputed that in issuing a Certificate of Inheritance, the Syariah Court relies on the information that it is provided with. Consistent with this, the Syariah Court issued a Certificate of Inheritance dated 21 July 2000 (“the First Certificate”) which was expressly stated to be based on Dawood’s letter of 13 July 2000 (see [86] below). The First Certificate stated that the only beneficiaries of Father’s estate were Mother (with a /8th share) and Dawood (with the remaining /8th share). Curiously, the First Certificate made no mention at all of Dawood’s other siblings, Jahir, Aysha, and Noorjahan, whom we shall collectively refer to at times in this judgment as “the Three Siblings”.
[8] The First Certificate received scant attention in the proceedings below. It only emerged for the first time in the midst of Dawood’s cross-examination. For reasons which will become evident later in this judgment, we consider it a matter of some importance.
[9] Having obtained the First Certificate, Dawood took no steps to distribute Father’s estate. About four years later, in early 2004, the subject was raised again. This time, the Appellants were involved, but they were not told anything about the First Certificate. It is common ground that, following some discussion, the Appellants agreed that Dawood should be appointed as the sole administrator of Father’s estate and that he should consult solicitors for this purpose.
Dawood instructs solicitors for the administration of Father’s estate
[10] Dawood was referred by a friend to Mr Harjeet Singh (“Mr Singh”), who is a solicitor of more than 30 years’ standing. Dawood attended at Mr Singh’s office on 19 February 2004 for their first meeting. Mr Singh’s wife, Ms Gurmeet Kaur (“Ms Kaur”), who was then an associate and is now a partner of the firm, was also present at this meeting. Both solicitors appeared as witnesses for Dawood in the proceedings below.
[11] What transpired at the 19 February 2004 meeting will be the subject of close scrutiny in due course; but, at this point, it suffices to note that Dawood did produce the First Certificate to the solicitors at that meeting. This is confirmed by the solicitors’ oral evidence as well as by a handwritten attendance note prepared by Ms Kaur. We will return to that handwritten note later. What may be noted at this stage is that, like the First Certificate, Ms Kaur’s handwritten note too made no mention of the Three Siblings. For completeness, we should mention that there was also a handwritten note prepared by Mr Singh, although it was not clear whether that was a contemporaneous note of matters actually discussed at that meeting or an aide memoire that was prepared subsequently.
[12] Although the First Certificate was produced at that first meeting on 19 February 2004, it is evident that it was very shortly thereafter discarded as invalid since it made no mention of the Three Siblings. Hence, on 24 February 2004, some days after the first meeting, Mr Singh proceeded to apply for a fresh Certificate of Inheritance from the Syariah Court in respect of Father’s estate, which certificate (“the Second Certificate”) was duly issued on the same day. The Second Certificate stated that it was issued “based on information regarding the beneficiaries given by Harjeet Singh, requested on February 24, 2004”. Unlike the First Certificate, the Second Certificate listed the following beneficiaries and their respective interests:
(a) Jahir – /48th share;
(b) Dawood – /48th share;
(c) Mother – /48th share;
(d) Aysha – /48th share; and
(e) Noorjahan – /48th share.
[13] Mr Singh proceeded to communicate the receipt of the Second Certificate to Dawood. Although Mr Singh could not exactly recall, among other things, whether he did so in person, it was Dawood’s evidence that this conversation took place over the telephone. According to Mr Singh, he received the following instructions from Dawood during that conversation: (a) that the Appellants had all agreed to appoint Dawood as the sole administrator of Father’s estate; and (b) that the Three Siblings had also agreed to renounce their interests in the estate and to have the Property transferred to Mother and Dawood as joint tenants. Mr Singh did not question those instructions at all; indeed, in cross-examination, he said that he thought at that time that this was a fair arrangement in all the circumstances.
[14] Based on those instructions, Mr Singh and Ms Kaur duly prepared various probate papers. It appears from the documents themselves that they were executed in Mr Singh’s presence on 27 February 2004. This was the only occasion on which Mr Singh and Ms Kaur met the Appellants; but, unlike in the case of their first meeting with Dawood alone on 19 February 2004, neither of the solicitors kept an attendance note recording the circumstances in which the probate papers were executed, or the advice or explanations that might have been given at that time.
[15] There are two deeds amongst the probate papers which require elaboration. The first is known as the Deed of Renunciation of Persons with Equal Rights (“the RPER Deed”). This was entered into by all the Appellants, and under it, they each agreed to give up their rights to administer Father’s estate and to have Dawood appointed as the sole administrator. The second deed, which is central to this appeal, is the Deed of Renunciation of Beneficial Interest (“the RBI Deed”). This was executed only by the Three Siblings, who, in so doing, purportedly agreed to renounce their respective interests in Father’s estate under the Second Certificate in favour of Mother and Dawood. The reasons for the execution of the RBI Deed and the circumstances in which its execution allegedly took place were hotly contested in the proceedings below, and we will elaborate on this shortly when we set out the parties’ respective cases. Mr Singh did not deliver copies of any of these deeds to the Appellants after they had been executed.
[16] Pursuant to the two deeds, the Property was transferred to Mother and Dawood as joint tenants on 29 March 2005. The implications of the Property being held under a joint tenancy were not discussed with Mother at any time, although Mr Singh had something to say on this when he was cross-examined. We will come to that later. The transfer was registered on 15 April 2005, and, according to Dawood, he received the new certificate of title to the Property from Mr Singh when he paid the solicitors’ final bill. Mr Singh did not update the Three Siblings or Mother on the completion of the transfer; nor did he deliver copies of the new title deed to any of them. Sometime in October 2014, after the commencement of the proceedings from which this appeal arises and a few months before her death, Mother unilaterally severed the joint tenancy, whereupon she and Dawood held the Property in their respective half-shares.
[17] At this point, it is appropriate to pause and recount briefly some aspects of the way in which Mr Singh conducted the matter:
(a) At all times, Mr Singh received his instructions from Dawood alone.
(b) Mr Singh accepted that he was acting at all times not only for Dawood, but also for the Appellants in respect of each of their various interests in this matter.
(c) Mr Singh did not verify any of his instructions with any of the Appellants directly. This included the instructions that Dawood would be the sole administrator under the RPER Deed and that his interest in Father’s estate was to be enlarged at the expense of the Three Siblings according to the terms of the RBI Deed.
(d) Mr Singh met the Appellants for the first time only when the probate documents were executed at his office on 27 February 2004.
(e) Mr Singh did not keep any contemporaneous notes of this meeting. As such, there is no documentary proof which might shed light on whether he had advised the Appellants at all and, if so, what advice he had given them. Specifically, the matters on which he would have been expected to have advised them include:
(i) the precise nature of their respective interests in Father’s estate pursuant to the Second Certificate;
(ii) the Three Siblings’ intent to wholly forgo their respective interests in favour of Mother and Dawood by executing the RBI Deed;
(iii) the fact that the Three Siblings’ intent to renounce their respective beneficial interests was a wholly distinct matter from the Appellants’ intent to appoint Dawood as the sole administrator of Father’s estate; and
(iv) the manner in which the Property was to be held by Mother and Dawood.
(f) Consistent with his practice of communicating only with Dawood, Mr Singh also did not follow up on the matter with the Appellants by, for example, writing to update them on its progress, providing them with copies of the signed probate papers, or providing them with copies of the new title deed to the Property once the transfer had been completed.
We should point out that we have referred in this paragraph to the conduct of Mr Singh alone because he had primary responsibility for preparing the probate papers and attending to their execution. However, what we have just said, as well as our discussion later in this judgment on what Mr Singh should have done, applies equally to Ms Kaur to the extent of her involvement in the matter.
The Three Siblings lodge a caveat against the Property
[18] Returning to the narrative of the facts, the next significant event after the transfer of the Property to Mother and Dawood transpired more than six years later on 15 November 2011. This was when the Three Siblings lodged a caveat in respect of the Property with the assistance of another solicitor, one Mr Ibrahim, who was a friend of Aysha and studied at the same mosque as her. The Three Siblings’ caveat was lodged based on the contention that Dawood had “no legal right to gift [the Property] to himself and [Mother], to the exclusion of their interests”. As will become apparent, the Appellants deny that the Three Siblings ever intended to renounce their interests in the Property in favour of Mother and Dawood jointly, notwithstanding the fact that this was precisely the effect of executing the RBI Deed.
[19] According to Aysha, the Appellants had never seen the title deed to the Property; hence, they were unaware of the true manner in which it was held after the execution of (among other probate documents) the RBI Deed and the RPER Deed in 2004. Sometime in 2011, Mother asked Dawood if she could see the title deed. Dawood apparently was not forthcoming with the title deed. Mother mentioned this to Aysha, who then approached Mr Ibrahim for assistance. Mr Ibrahim carried out a title search, and, after discovering that the Property was registered in Mother’s and Dawood’s joint names, he informed Aysha accordingly. Aysha was shocked to learn of this. After discussing the matter with Jahir and Noorjahan, she consulted Mr Ibrahim again and the Three Siblings then decided to lodge the caveat against the Property.
The Appellants commence proceedings against Dawood
[20] More than a year passed after the lodgement of the caveat before the Appellants commenced their suit against Dawood on 27 March 2013.
The pleadings
The Appellants’ pleaded case
[21] The Appellants claimed that, sometime after the issuance of the Second Certificate on 24 February 2004, all the siblings (ie, the Three Siblings plus Dawood) agreed to waive their respective interests in Father’s estate to benefit Mother solely. This agreement (referred to hereafter as “the Appellants’ Agreement” where appropriate to the context) came about because they considered Mother’s share under the Second Certificate to be “minuscule”. Having appointed Dawood to consult solicitors for the administration of Father’s estate, the Appellants were under the impression that the probate papers, which had been prepared solely on Dawood’s instructions, were intended to give effect to the Appellants’ Agreement. Therefore, when the Appellants executed the various documents (including, on the part of the Three Siblings, the RBI Deed), they did so on an erroneous footing. The Appellants did not contend that the RBI Deed was forged, but they maintained that it did not set out what they understood would be its intended effect.
[22] Aside from this, the Appellants also gave a different account of how the probate papers had been signed. According to them, only Mother and Aysha had gone to the solicitors’ office on 27 February 2004 to execute those documents in Mr Singh’s presence. As for Jahir and Noorjahan, they had allegedly executed the probate papers at different times and at different locations. Moreover, the Appellants contended that none of them had received any explanation as to the legal effect and meaning of the documents which they were signing, including, in particular, the two deeds. Further, they each claimed that they had only been given “several single page papers” to sign, as opposed to the relevant documents in their entirety.
[23] Given the circumstances in which the probate papers were signed, as well as the mistaken impression which the Appellants were labouring under when they did so, the Appellants denied that the Three Siblings had ever renounced their respective interests in Father’s estate in favour of Dawood. Instead, they claimed that Dawood, without their knowledge and consent, and in breach of the Appellants’ Agreement, had “surreptitiously and/or in bad faith” procured the transfer of the Property to himself as its joint legal and beneficial owner along with Mother. The Appellants therefore sought, among other things, a declaration that the transfer of the Property was void, a further declaration that Mother was the sole beneficial and legal owner of the Property, and an order that Dawood sign all documents and deeds necessary to rectify the land register so as to reflect the position under the Appellants’ Agreement.
Dawood’s pleaded case
[24] The crux of Dawood’s case, in contrast, was that all the siblings had reached a different agreement from that which the Appellants advanced. According to Dawood, the agreement reached (referred to hereafter as “Dawood’s Agreement” where appropriate to the context) was that the Three Siblings would renounce their respective interests in Father’s estate and vest the Property in Mother and him as joint tenants. The RBI Deed was therefore executed by the Three Siblings in furtherance of precisely this agreement.
[25] There are two points to note about Dawood’s Agreement which will assume some significance in our analysis.
[26] The first relates to the time of its formation. In his pleadings, Dawood stated that this agreement among all the siblings was reached sometime at the end of 2003 or early 2004; but, in his affidavit of evidence-in-chief (“AEIC”), he was slightly more specific, placing the formation of this agreement at a family meeting in early January 2004. According to Dawood, this was the same meeting at which the Appellants had agreed to appoint him as the sole administrator of Father’s estate (see [9] above). What is clear is that, on Dawood’s case, the alleged agreement was formed well before the solicitors were first instructed on 19 February 2004 (see [10] above) and also well before the application for and the issuance of the Second Certificate on 24 February 2004 (see [12] above).
[27] The second point about Dawood’s Agreement concerns the alleged motivation or rationale underlying it. Just why would the Three Siblings have agreed to forgo their beneficial interests in Father’s estate? Dawood claimed that this stemmed from his agreement to: (a) be appointed as the sole administrator of Father’s estate; and (b) live with Mother in the Property and look after her. This was framed in his pleadings in terms of “consideration”, even though we are concerned here with a deed. Dawood claimed that he was the “sole” child who lived with and took care of Mother as his siblings had moved out to live with their respective families. In his AEIC, Dawood also placed great reliance on his assertion that it had always been Father’s intention, which was allegedly “known amongst the family members”, that the Property would belong to Mother and him upon Father’s demise. He contended that the Three Siblings agreed to the transfer of the Property because this was “in line with the wishes of [Father]”.
[28] Apart from this affirmative case, Dawood also pleaded that the Appellants’ action was time-barred. Dawood claimed that, to the extent that the Appellants’ action was premised on his alleged breach of the Appellants’ Agreement, the cause of action must have accrued by 15 April 2005, which was when the transfer of the Property to Mother and Dawood as joint tenants had been registered (see [16] above). Since the Appellants only commenced their action in March 2013, after more than six years had lapsed, their claim was time-barred pursuant to s 6 of the Limitation Act (Cap 163, 1996 Rev Ed). We note in passing that the Appellants’ claim was in fact pleaded on the basis that the transfer of the Property was void. Their claim was not framed as one for damages arising from a breach of contract, nor as one for specific performance. Rather, it was evident from the reliefs sought in respect of the Property that their claim was that Dawood had misappropriated property to which he was not entitled.
The decision below
[30] The judicial commissioner in the court below (“the Judge”) found that neither the Appellants’ Agreement nor Dawood’s Agreement had been proved on a balance of probabilities. But, since the burden ultimately rested on the Appellants (as the plaintiffs) to prove their case, he dismissed their claim (see Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2014] 4 SLR 1309 (“the GD”) at [6]).
[31] Beginning with the Appellants’ Agreement, the Judge found that there were several irreconcilable inconsistencies and gaps in the Appellants’ individual testimonies regarding its alleged formation (see the GD at [70]–[87]). In this regard, the Judge considered the “most critical” factor to be the existence of the RBI Deed, which, on its face, was wholly inconsistent with the alleged agreement to benefit Mother alone (see the GD at [88]).
[32] The Judge did not believe the Appellants’ version of how the RBI Deed (amongst the other probate papers) had been executed. He observed, for example, that it did not make sense for Mr Singh to have given the Appellants only the signature pages of the documents to sign (see the GD at [113]). Both the RBI Deed and the RPER Deed also ended with a declaration by Mr Singh that they had been executed in his presence; hence, the Judge thought the Appellants’ contention that Jahir and Noorjahan had signed the RBI Deed on their own, and not in Mr Singh’s presence, was unconvincing (see the GD at [133]). Ultimately, the Judge preferred the solicitors’ evidence of how the probate papers had been executed, which was that all the Appellants had attended at their office on 27 February 2004 to sign the relevant documents after Mr Singh had explained their nature and contents. The Judge thought he “did not have any good reason to disbelieve” the solicitors’ evidence (see the GD at [134]), and was therefore satisfied that the RBI Deed had been validly executed by the Three Siblings.
[33] With regard to Dawood’s Agreement, the Judge was troubled by the fact that Father’s alleged wish for the Property to vest after his death in Dawood and Mother, which appeared to be an “integral element” of the alleged agreement, had barely featured in Dawood’s closing submissions and in the cross-examination of the Appellants (see the GD at [155]–[160]). The Judge was not convinced that Father had ever had, let alone expressed, any such wish, and so found that Dawood’s Agreement too had not been made out.
[34] The Judge also held that the Appellants’ action was, in any event, time-barred. He characterised the Appellants’ claim as a “plain vanilla contract claim” (see the GD at [48]) to which s 6 of the Limitation Act prima facie applied. The Appellants had submitted that the running of the six-year limitation period should be postponed pursuant to s 29 of the Limitation Act on account of Dawood’s surreptitious concealment of the transfer of the Property. As this was only discovered by the Appellants in 2011, they claimed that the commencement of the limitation period should be postponed until then, with the result that their claim would not be time-barred. The Judge rejected this argument. Having found that the Three Siblings had executed the RBI Deed knowingly and willingly, he held that there was no breach of contract to begin with, much less any basis to find concealment on the part of Dawood so as to call for the invocation of s 29 of the Limitation Act (see the GD at [164]–[168]).
[35] Finally, the Judge held, on Dawood’s counterclaim, that the caveat against the Property had been lodged without reasonable cause; hence, the Three Siblings were liable to compensate Dawood for any loss incurred in that connection (see the GD at [174]).
Our decision
The focus of the present appeal: The validity of the RBI Deed
[36] In this appeal, the parties’ written submissions centred mainly on the Judge’s findings regarding their respective versions of the alleged agreement between the siblings outlined at [21] and [24] above. On the one hand, the Appellants sought to explain away the various discrepancies in their evidence and their case which the Judge had identified concerning the formation of the Appellants’ Agreement. They also sought to undermine the solicitors’ evidence that they: (a) had been given the probate documents (including the RBI Deed) in their entirety to sign; (b) had received an explanation from Mr Singh as to what those documents were; and (c) had signed the documents on the same occasion when they attended at the solicitors’ office on 27 February 2004. On the other hand, Dawood submitted that the Judge was correct to find that the Appellants’ Agreement had not been proved; in addition, he argued that the Judge should also have found that Dawood’s Agreement had been proved on a balance of probabilities.
[37] Having considered the arguments and the GD, we do not think we are in a position to disturb the Judge’s finding that neither the Appellants’ Agreement nor Dawood’s Agreement had been proved on a balance of probabilities. But, that does not conclude the matter against the Appellants. Once both versions of the alleged agreement are discarded, what remains at the heart of the Judge’s decision is his central finding that the RBI Deed had been validly executed by the Three Siblings. Properly understood, that was the essential basis of his decision. Indeed, at [165] of the GD, he said that the RBI Deed was “the basis of the transfer” of the Property to Mother and Dawood. But, herein lies a potential difficulty. The RBI Deed might make sense if it is seen as the actualisation of Dawood’s Agreement. However, once that agreement is discarded, as it was in the court below, then it begs the crucial question as to why and in what circumstances the RBI Deed was entered into.
[38] With regard to the circumstances in which the probate documents were executed, we accept the Judge’s findings in two respects – first, that all the Appellants were present at the solicitors’ office on 27 February 2004 to sign the probate papers in one sitting; and, second, that the solicitors had provided the probate papers to the Appellants in their entirety, rather than just their respective signature pages. We accept this not because we think this must be true, but because we have no basis to interfere with these findings by the Judge given the state of the evidence that was led. What we focus on, instead, is the Judge’s uncritical acceptance of the solicitors’ evidence that Mr Singh “must have” fully explained the nature and effect of the documents – in particular, the RBI Deed – to the Appellants before they were signed by the Appellants (and, in the case of the RBI Deed, by the Three Siblings). If we are unable to agree with the Judge that Mr Singh had adequately advised the Three Siblings as to the terms and effect of the RBI Deed, then that, in our judgment, will affect its validity.
A preliminary point: Is the Appellants’ claim time-barred under s 6 of the Limitation Act?
[39] We depart, for the moment, from the main trunk of our analysis to deal with a preliminary point which arises in this appeal. This concerns the Judge’s finding that the Appellants’ claim was time-barred under s 6 of the Limitation Act, which finding, in turn, was premised on his analysis of their claim as a pure contract claim. If this is correct, then this appeal must fail in limine, making it unnecessary for us to go on to consider whether the RBI Deed was valid in the circumstances.
[40] With respect, we do not agree with the Judge’s characterisation of the Appellants’ claim. It is true that the Appellants’ Agreement was pleaded as an important feature of their case. It is also true that the Appellants contend that this agreement was breached by Dawood when he procured the Three Siblings’ execution of the RBI Deed. But, as we have noted above at [28], the Appellants do not claim damages for breach of contract; nor do they seek specific performance. The principal relief sought, in fact, is for the land register to be rectified on the basis that “[Dawood] has no legal or beneficial interest in the [P]roperty”. In short, the real nature of the Appellants’ claim is that Dawood’s title to the Property is defective. This rests on the Three Siblings’ denial that they had renounced their interests in the Property in accordance with the terms of the RBI Deed (despite their having signed it), such that the transfer of the Property effected pursuant to that deed must be invalid. Their key contention is that the transfer is void because it was effected pursuant to a void deed. While it is a fact that Dawood (together with Mother) holds the legal title to the Property, the Appellants contend that the Three Siblings continue to retain their respective beneficial interests therein (in the proportions set out in the Second Certificate), subject to the terms of the Appellants’ Agreement if that agreement is proved. Hence, in truth, the Appellants are asserting their claim as beneficial owners against Dawood as trustee.
[41] Once the true nature of the Appellants’ case is understood, it becomes evident, in our judgment, that any issue as to their claim being time-barred properly falls to be governed by a different provision of the Limitation Act, namely, s 22(1)(b), which concerns actions by beneficiaries to recover trust property in the possession of a trustee. We pause to observe that a “trustee” for the purposes of this provision has the same meaning as a “trustee” under the Trustees Act (Cap 337, 2005 Rev Ed). Section 3 of the latter Act explicitly defines a trustee as “including a personal representative”; this further supports our view that s 22(1)(b) of the Limitation Act is the applicable limitation provision in the present case since the Property was transferred by Dawood in his capacity as the sole administrator of Father’s estate. Significantly, s 22(1)(b) stipulates that no period of limitation applies to an action by beneficiaries to recover trust property in a trustee’s possession:
[42] The fact that no statutory period of limitation applies to the Appellants’ claim does not, however, preclude the court from taking notice of any delay on their part in bringing their claim and denying them the relief sought on the ground of laches. This is the effect of s 32 of the Limitation Act, which provides that nothing in the said Act shall affect “any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise”. In this regard, we endorse the following views expressed by the High Court in Re Estate of Tan Kow Quee (alias Tan Kow Kwee) [2007] 2 SLR(R) 417 (“Re Estate of Tan Kow Quee”) at [29]–[30] (which were also cited with approval in the subsequent High Court decision of Sukhpreet Kaur Bajaj d/o Manjit Singh and another v Paramjit Singh Bajaj and others [2008] SGHC 207 at [21]–[22]):
[43] As was also noted in Re Estate of Tan Kow Quee (at [33]), the basis for equitable intervention on the ground of laches is ultimately found in unconscionability. And, in determining this, the court adopts a broad-based approach inquiring into all the circumstances of the case. This will include considerations such as the length of the claimant’s delay in prosecuting his claim, the nature of the prejudice said to be suffered by the defendant, and, if it exists, any element of unconscionability in allowing the claim to be enforced (see also Re Estate of Tan Kow Quee at [38], recently cited with approval by this court in Dynasty Line Ltd (in liquidation) v Sukamto Sia and another and another appeal [2014] 3 SLR 277 at [58]).
[44] In the present case, the Appellants’ claim is only sustainable if they can establish that the Three Siblings were in fact unaware of the terms and effect of the RBI Deed at the time they signed it. If the Appellants can establish that, then what we consider important, in the context of laches, is to determine the point at which they subsequently came to know that the Property had been placed in the joint names of Mother and Dawood. That is the point which determines when the Appellants would have been in a position to commence their action against Dawood. In other words, it provides the reference point for assessing the length of delay (if any) on their part in bringing their claim, and that in turn goes towards the overall inquiry of unconscionability.
[45] That is a question which cannot be answered until we have determined the central issue in this appeal – namely, whether or not the Three Siblings knew the nature and effect of the RBI Deed when they signed it, and thus, whether or not that deed was validly executed. We therefore defer our analysis of the possible operation of laches until after we have decided the main point in this appeal.
The validity of the RBI Deed
Two competing explanations for the RBI Deed
[46] We return, then, to the central focus of the appeal, which is the validity of the RBI Deed. Before elaborating on certain aspects of the evidence of the solicitors, it is necessary for us to set the stage by returning to an important observation that was made earlier at [37] above. This concerns the fact that, having held that neither Dawood’s Agreement nor the Appellants’ Agreement had been proved, the Judge left a crucial question unanswered: what explanation is there then to account for the execution of the RBI Deed? Surely, the parties could not have all descended upon the solicitors’ office to sign away the Three Siblings’ interests in Father’s estate without any rational explanation for this.
[47] The fact remains that the RBI Deed was signed. In our judgment, there can only be two possible competing explanations that might account for this.
[48] First, notwithstanding the Judge’s finding that Dawood’s Agreement had not been proved, the siblings (ie, the Three Siblings plus Dawood) may have reached a mutual understanding along the lines of that agreement at some stage before the execution of the RBI Deed. It has to be said at the outset that this hypothesis will run into the very difficulties which caused the Judge to find that Dawood’s Agreement had not been proved. We leave that to one side for now, save to emphasise that it is simply inconceivable that the first time that the Three Siblings were apprised of their alleged agreement to surrender their interests in Father’s estate in favour of Mother and Dawood was when they (together with Mother) went to the solicitors’ office on 27 February 2004. Hence, for this hypothesis to be found valid, it will be necessary, despite the Judge’s reservations, to find on balance that there was some such prior agreement or understanding, and therefore, the Three Siblings attended at the solicitors’ office for the purpose of executing the RBI Deed, knowing the consequences of their doing so and intending that deed to take effect according to its terms.
[49] The second possible explanation is that although the RBI Deed was in fact executed by the Three Siblings, they did so without ever understanding its nature and effect. On this hypothesis, there was never any prior agreement (or, perhaps, even any discussion) among the siblings concerning how their respective interests in Father’s estate should be divided. The reason why they, together with Mother, attended at the solicitors’ office on 27 February 2004 was because, as is common ground in these proceedings, the Appellants had agreed to appoint Dawood as the sole administrator of Father’s estate sometime in early 2004 (see [9] above). But, so far as the Three Siblings were concerned, that was the extent to which any prior agreement amongst them went – they did not agree to renounce their interests in Father’s estate and vest the Property in the way that eventually transpired. Instead, the Three Siblings signed the RBI Deed because, having failed to receive proper advice as to its true nature and effect, they did not in fact understand it, in particular, the material aspects in which it differed from the RPER Deed, which they (as well as Mother) were aware of and did in fact intend to execute.
[50] It falls on us now to examine which of these competing hypotheses is the more probable.
The first hypothesis: The Three Siblings executed the RBI Deed knowingly, intending to give effect to some prior agreement among all the siblings
[51] In our judgment, there are numerous difficulties with the first hypothesis outlined at [48] above.
(1) The problem of timing the formation of such an agreement
[52] To begin with, it is impossible to say, even roughly, when an agreement among all the siblings to constitute Mother and Dawood as the joint tenants of the Property might have been formed. On the evidence, the latest date on which such an agreement could have been reached is just prior to the issuance of the Second Certificate on 24 February 2004. This is because Mr Singh’s evidence is that he was instructed by Dawood for the first time that the siblings had allegedly agreed to vest the Property in Mother and Dawood jointly in the course of the very same conversation in which he (Mr Singh) told Dawood what the various family members’ individual entitlements to Father’s estate were pursuant to the Second Certificate (see [13] above). However, this sequence of events runs into an obvious problem. If the Second Certificate post-dated the alleged agreement, then the Three Siblings must have willingly renounced their interests in Father’s estate at a time when they did not even know what the extent of those interests were. It seems to us inherently improbable that they would have agreed to give up what they did not yet know they had.
[53] This problem might, perhaps, be overcome if, as a matter of general knowledge, the siblings were aware that they were each entitled to a share of Father’s estate, and perhaps even had some general idea of what their respective shares might be. In this respect, Dawood said in the course of his cross-examination that he had spoken to a mosque elder and had found out that Father’s male descendants would receive a larger share of his estate than the female descendants, with Mother’s share being the smallest. Dawood also appeared to suggest that he had conveyed this to the rest of his siblings, and claimed that this was the “common understanding” upon which they had discussed the division of the Property in early January 2004 (see [26] above). In our judgment, this runs into two further problems which cannot satisfactorily be explained away.
[54] First, the evidence is overwhelming that Dawood had not informed the solicitors at their first meeting on 19 February 2004 about the alleged agreement of the Three Siblings to give up their respective interests in Father’s estate in favour of Dawood and Mother. This omission would be extremely odd if, as Dawood claimed, such an agreement had already been formed by then and he had gone to see the solicitors with the ultimate aim of giving effect precisely to this. Indeed, one would have expected this to be central to the instructions that he conveyed to the solicitors. After all, why would he not give the solicitors the full picture of what had been agreed amongst the family members?
[55] When cross-examined on this point, Dawood stated that he had informed Mr Singh of the alleged agreement at their first meeting. However, we are satisfied that this is untrue and against the weight of the evidence for the following reasons:
(a) First, it is evident from the transcript of the notes of evidence that Dawood’s initial response to counsel for the Appellants, Mr Bernard Sahagar (“Mr Sahagar”), was merely that it was possible that he had mentioned his version of the agreement to Mr Singh at their first meeting on 19 February 2004.
(b) After Dawood was pressed on the point, he abandoned his equivocal position in favour of a firm answer that he had informed Mr Singh of the same. But, not only did Dawood fail to advance this position in his AEIC, he in fact said the opposite there, namely, that the first time that he mentioned his version of the agreement to Mr Singh was after being informed that the Second Certificate had been issued on 24 February 2004.
(c) This was also consistent with Mr Singh’s version of the events. He testified that he only received instructions regarding Dawood’s Agreement after having informed Dawood about the issuance of the Second Certificate (see [13] above).
(d) Finally, and perhaps most crucially, Dawood’s belated statement in his oral evidence that he did inform Mr Singh of his version of the agreement at their first meeting on 19 February 2004 is plainly and simply inconsistent with the available documentary evidence. There is nothing in the attendance notes of that meeting recorded by either Ms Kaur or Mr Singh which suggests that anything along the lines of Dawood’s Agreement was discussed.
[56] The second irreconcilable difficulty with finding that an agreement to vest the Property in Mother and Dawood jointly had been reached at some point before the meeting of 19 February 2004 is that, if this were truly the case, then the parties must have operated on the basis that the Three Siblings were each entitled to a share in the Property to begin with and were going to renounce their respective shares. Logically, this must also mean that Dawood must have been aware that the First Certificate was invalid because it reflected only his and Mother’s interests to the exclusion of the Three Siblings. However, this is impossible to reconcile with the fact that Dawood produced the First Certificate to the solicitors at the 19 February 2004 meeting, apparently suggesting that it was valid (see [11] above).
(2) The problem of rationalising why such an agreement would have been entered into
[57] Aside from the above difficulties relating to when an agreement akin to Dawood’s Agreement could have been formed, it is perhaps even more problematic trying to rationalise why the Three Siblings would have agreed to enter into such an arrangement in the first place.
[58] As mentioned above at [27], the reason which Dawood gave in his AEIC for his version of the alleged agreement was that all the family members knew of and wanted to give effect to Father’s wish to have the Property owned jointly by Mother and Dawood after his (Father’s) demise. However, the Judge found this implausible and we agree. Dawood conceded under cross-examination that, contrary to what he had asserted in his AEIC, he did not actually know whether Father’s wish had been communicated to the Appellants. He claimed that he had been told of this wish in what was “a conversation between a son and a father”, but accepted that he had not relayed this to the Appellants and was not aware of Father having done the same. Therefore, it appears that, on Dawood’s own evidence, Father’s alleged wish could not have formed the basis for the Three Siblings’ renunciation of their interests in the Property in favour of Dawood and Mother. This is significant because Dawood does not say that he had himself proposed placing the Property in his and Mother’s joint names. Therefore, once Father’s alleged wish is discarded as the explanation for the actions of the Three Siblings, then this leaves the Three Siblings as having – of their own initiative and without any prompting – come up with this arrangement notwithstanding the obvious disadvantage which it placed them in. This seems to us highly improbable, to say the least.
[59] This becomes even more improbable when one scrutinises the other reasons why, according to Dawood, the siblings came to an agreement along the lines of Dawood’s Agreement. In part, it was said that such an agreement was reached so that Dawood would live with Mother in the Property and be responsible for her expenses (see [27] above). However, as it turns out, this was not in fact how the parties actually conducted themselves. As noted earlier at [4] above, Dawood spent less time at the Property with Mother after he got married and purchased his own home with his wife in November 2011. And, as regards Mother’s expenses, it was not the case that Dawood had paid exclusively for her upkeep. Dawood accepted under cross-examination that Aysha had contributed substantially to the payment of Mother’s medical expenses; indeed, there is evidence of Mother herself having made such payments as well through her Central Provident Fund account.
[60] Finally, there was a suggestion made during the hearing by Dawood’s counsel, Ms Koh Swee Yen (“Ms Koh”), that because Dawood had not benefitted from any other assets belonging to Father, the Appellants were happy for him to have the Property together with Mother. Brief references were made in Dawood’s AEIC to what those other assets were. They included the mutton stall at Tekka market, which Dawood said had been left entirely to Jahir, and also certain properties in India, which Aysha and Noorjahan had allegedly been given upon their respective marriages. The thrust of this submission, therefore, was that there was a semblance of “fairness” in how Father’s assets came to be distributed, such that the rest of the family would see it as patently fair and so volunteer that Dawood should receive a half-share in the Property. We do not accept this submission. The mutton stall at Tekka market and the unspecified properties in India that were allegedly given to the sisters bear no comparison at all to the Property, which is in an upmarket location in Singapore. At the time of Father’s death, it was estimated to be worth $850,000, and it has, more recently, been valued at some $3m.
[61] In summary, aside from the problem of timing the formation of an agreement akin to that alleged by Dawood, there was, on the evidence, no plausible explanation put forward as to why the Three Siblings would have volunteered to give up their respective interests in the Property in favour of Mother and Dawood jointly. Small gestures of generosity are not uncommon in a family setting, but this was generosity of a scale that called for a cogent explanation. None was forthcoming. For these reasons, we, like the Judge, find it improbable that the RBI Deed was executed to give effect to some prior agreement on the part of all the siblings.
The second hypothesis: The Three Siblings executed the RBI Deed without understanding its nature and effect
[62] We turn to consider the alternative hypothesis (see [49] above), which is that the Three Siblings executed the RBI Deed without receiving a proper explanation of what they were signing and, as a consequence, without appreciating its true nature and effect. There is no question that the Three Siblings knew, when they executed the RBI Deed, that they were signing a document which was intended to and did have legal effects and consequences. But, on this alternative hypothesis, they signed the document in the mistaken belief that it was something that was meant to give effect to their limited agreement to appoint Dawood as the sole administrator of Father’s estate.
(1) The importance of the solicitors’ conduct in this case
[63] To determine whether the Three Siblings understood what they were signing when they executed the RBI Deed, it becomes necessary to analyse the extent to which they had been appropriately advised by the solicitors, in particular, Mr Singh, who had primary carriage of the matter. If Mr Singh had adequately discharged this duty, then it would seem almost inevitably to follow that the Three Siblings fully understood what they were signing even if it is not possible to make sense of why they would have done so. If, however, Mr Singh had not adequately explained the position to them, then it would greatly strengthen the hypothesis that the Three Siblings did not fully understand what they were signing. The questionable validity of the RBI Deed would then come sharply into focus.
[64] What then was expected of Mr Singh? This question cannot be answered in a vacuum. Rather, the answer must be calibrated to the particular circumstances of this case, which has a number of significant features.
[65] First, the Appellants had only modest education. They were not sophisticated clients. Moreover, their capacity to understand the documents they were signing has to be assessed against the complexity of the transaction contemplated by those very documents. In so far as the RBI Deed is concerned, Mr Singh accepted that, from his own experience, such a document was not commonly prepared in the course of non-contentious probate proceedings. But, it is insufficient to view the RBI Deed in isolation as an unusual document. Instead, it has to be situated in the context of a number of other documents which were all signed in the course of the same meeting on 27 February 2004. Some of those documents were essentially administrative in nature, while others affected the parties’ substantive rights and interests. Further, within the latter category of documents were the RBI Deed and the RPER Deed, which, between them, dealt with very distinct matters: the former recorded the Three Siblings’ agreement to renounce their substantive interests in Father’s estate in favour of Mother and Dawood, while the latter involved them (and Mother) renouncing their rights to be co-administrators of the estate. It was entirely plausible, and indeed might not have been unusual, for the Appellants to have given up the right to administer the estate and manage the process of distributing it without also, on the Three Siblings’ part, giving up their respective interests in the actual distribution of the estate. This distinction is critical because if, as both we and the Judge have found, there was no prior agreement amongst the family members to alter the anticipated division of the estate (either as claimed by the Appellants or as claimed by Dawood), then the only agreement that had been reached prior to the execution of the probate documents related to the appointment of Dawood as the sole administrator. That agreement was embodied in the RPER Deed. So, unless the evidence clearly demonstrates that Mr Singh had fully explained the RBI Deed to the Three Siblings, who in turn understood it, did not question why it had been prepared, and spontaneously formed a desire to give effect to it, it is difficult to see why they would have executed it when there had been no prior agreement to that effect.
[66] There was, moreover, a further issue: even if the Three Siblings did intend to renounce their respective interests in the Property in favour of Mother and Dawood, were they and Mother aware of and alive to the potential significance of the Property being held by Mother and Dawood as joint tenants, rather than as tenants in common?
[67] In these circumstances, we consider that there were at least four potential issues that the Appellants ought to have been specifically alerted to, and their confirmation sought, when the solicitors met them for the first and only time on 27 February 2004:
(a) First, did they trust and intend Dawood to be the sole administrator of Father’s estate, and so, to be able to deal with its assets in that capacity?
(b) Second, and as a separate and distinct matter from the first, did they understand the terms of the Second Certificate, and, in so far as the Three Siblings were concerned, did they in fact intend to unconditionally renounce their respective interests in Father’s estate in favour of Mother and Dawood alone, contrary to the terms of the Second Certificate?
(c) Third, were they aware of the possible difference in consequences of the Property being held by Mother and Dawood as joint tenants rather than as tenants in common?
(d) Fourth, were Dawood’s factual instructions to the solicitors on all of the above matters accurate and reflective of their own intentions?
[68] Viewed from this perspective, it becomes clear that the matter was in fact somewhat complex and attended by delicate distinctions which, given the Appellants’ lay background, they would not reasonably have been expected to understand without those points being carefully explained to them. In these circumstances, it is clear that a higher level of explanation and circumspection would be required from the solicitors than if they had, for example, been dealing with a sophisticated businessman (see Lie Hendri Rusli v Wong Tan & Molly Lim (a firm) [2004] 4 SLR(R) 594 (“Lie Hendri Rusli”) at [55]). As Professor Jeffrey Pinsler quite rightly states in Ethics and Professional Responsibility: A Code for the Advocate and Solicitor (Academy Publishing, 2007) (“Pinsler”) at para 14-022:
[69] The duty of a solicitor will therefore be affected by the complexity of the transaction (which was relatively high in this case), and also by the level of sophistication of the clients (which, at least on the Appellants’ side, was relatively low in this case). The solicitors in the present case were therefore under a heightened duty to explain the position carefully. But, there is more.
[70] In our judgment, the call for care on the part of the solicitors is further enhanced by what we consider to be the defining feature of the present case, which is the fact that the solicitors were acting concurrently for parties whose interests were potentially conflicting. On the one hand were beneficiaries who, to their obvious detriment, were supposedly seeking to dispose of their respective interests in their father’s estate. On the other hand was the sole administrator who stood to benefit significantly from this disposition. In accepting the brief to act in this matter, the solicitors had placed themselves right in the middle of these apparently adverse interests; and, as they readily accepted, throughout the course of the retainer, they took their instructions solely from one side in respect of matters that directly and adversely affected the other side.
[71] There is no absolute bar against a solicitor acting for multiple clients with ostensibly adverse interests, but the courts have often warned of the special precautions which need to be observed in such situations because the solicitor may not be able, by virtue of the very position of potential conflict in which he has placed himself, to properly discharge his duties to one or more of the clients. As was helpfully set out in Law Society of Singapore v Uthayasurian Sidambaram [2009] 4 SLR(R) 674 (“Uthayasurian Sidambaram”) at [52], such precautions include advising all the affected clients of the risks and consequences involved in having the solicitor act for them in such a situation of potential conflict; obtaining the clients’ informed consent to the solicitor’s acting in that capacity by disclosing the potential risks involved; advising the clients to seek independent legal advice; and, where potential pitfalls appear in the particular transaction concerned, drawing those pitfalls immediately to the attention of all the clients, notwithstanding that it might incur the displeasure of some of them. We elaborate more on these precautions in the coda to this judgment. For present purposes, it suffices to state that all of them are intended to ensure that the client is placed in no less informed a position than he would have been in had he received separate advice from a competent solicitor looking exclusively after his interests. This need, we reiterate, is even more pressing in a case such as this where one party assumes the mantle of being the group representative for dealings with the solicitor, appears to be paying entirely for the legal expenses incurred, and, in particular, gives to the solicitor all the instructions which, if carried into effect, would benefit him. This seems to us to be a matter of simple common sense.
[72] It is clear from the foregoing that acting concurrently for both the Appellants and Dawood in the administration of Father’s estate was not a straightforward matter. Careful and considered measures had to be taken at each step by the solicitors to ensure that the apparent conflict of interest never became real, and that, when it finally came to the execution of the probate documents themselves, a full and proper explanation of what those documents entailed in a somewhat complex arrangement was given in terms that were accessible to these lay and unsophisticated clients.
(2) A brief interlude: A review of English authorities
[73] Before we scrutinise the evidence of how the solicitors in the present case had in fact approached the matter, we find it instructive to first refer to a line of early English authorities which, broadly speaking, also involved solicitors who had advised on the execution of deeds while facing a conflict of interest that arose either because of their own personal interest in the matter or because (as in this case) the interests of the parties being advised were at odds with one another. The courts in these cases were acutely aware of the state of the solicitor-client relationship in these circumstances. On the one hand, the client goes to the solicitor in full trust and confidence, relying upon the solicitor to safeguard his interests and, therefore, expecting to receive competent and complete advice as to the nature of the transaction which he enters into by executing the deed in question. On the other hand, the solicitor, faced with two or more potentially competing interests, may subconsciously or otherwise prefer one set of interests over another. In such circumstances, there would be good grounds for the disadvantaged client to apply to set aside the deed if the precautions alluded to at [71] above and elaborated on in the coda to this judgment are not observed.
[74] We begin with the decision of the English Court of Appeal in Sturge v Sturge (1849) 12 Beav 229. There, a solicitor, Mr Roberts, acted for a group of siblings in a transaction whereby one of them, the plaintiff, conveyed his interest in an estate devised under his grandfather’s will to the rest of his brothers, who were the defendants in the action, by a deed that had been prepared by Mr Roberts. On a proper construction of the grandfather’s will, the plaintiff was entitled to the whole of the estate; however, the plaintiff in fact executed the deed on the basis that he was entitled to only one-fourth of the estate. The evidence showed that Mr Roberts was himself doubtful as to whether the deed accurately represented the effect of the will (at 237). But, because he understood that the defendants desired an equal division of the estate, and because he thought this was fair and proper having regarding to the family’s situation, he never communicated this doubt to the plaintiff (at 238 and 240).
[75] The deed was set aside on grounds which included Mr Roberts’ failure to properly advise the plaintiff as to his rights under his grandfather’s will. It is useful to reproduce the following passage from the judgment of Lord Langdale MR (at 239–240) which contains his view of Mr Roberts’ failings in the circumstances:
[76] The next case, Willis and others v Barron and others [1902] AC 271 (“Willis”), is a decision of the House of Lords. There, the plaintiff executed a deed by which she renounced her rights under a settlement in favour of the son of Mr Skinner, the solicitor who had prepared and advised her on the deed and who was also her trustee under the settlement. The plaintiff executed the deed in the belief that it was meant merely to correct a “mistake” in an earlier deed when, in fact, it altered her position detrimentally, among other things, by cutting down the life interest that she was entitled to under the settlement.
[77] The House of Lords set aside the deed as Mr Skinner had failed to advise the plaintiff on how the deed affected her rights and position. It was also held that because Mr Skinner was in a position of conflict, he should have advised the plaintiff to obtain independent legal advice. Willis is a slightly different case from the present as the conflict there arose out of self-dealing. Be that as it may, Willis remains helpful in highlighting the cautious approach which the courts will take when there is a conflict of interest affecting the solicitor in question. In our judgment, regardless of the precise species of conflict, the courts’ true concern is to ensure that a client is not unduly prejudiced by a solicitor who finds himself placed in a position of conflict because the client would, in the ordinary nature of things, be entitled to rely on that solicitor for proper advice. Lord Macnaghten recognised this precise point in Willis (at 281):
[78] The third and final case which we refer to is the decision of the Privy Council in Bank of Montreal v Jane Jacques Stuart and another [1911] AC 120, which concerned an action by the plaintiff to set aside a series of transactions against the defendant bank. Those transactions were entered into ostensibly for the benefit of a company which the plaintiff’s husband had an interest in and which was in poor financial health at the time. The solicitor who advised the plaintiff on the impugned transactions, Mr Bruce, was also the solicitor for the bank, the solicitor for the husband, and, in addition, himself a director, secretary, shareholder, and creditor of the company. The Privy Council set aside the transactions, which, in their totality, had left the wife without any means of her own.
[79] In entering into the transactions, the wife was found to have operated under the undue influence of her husband. But, more importantly for present purposes, the court also set aside the transactions on the basis that, given the varying capacities in which Mr Bruce acted in the matter and the multiple conflicts among the interests of the parties whom he represented, he was patently not in a position to advise the plaintiff fairly as to her interests. In these circumstances, it was inequitable for the bank to rely on the transactions as against the plaintiff. Lord Macnaghten, delivering the judgment of the Board, observed as follows (at 137–138):
[80] In our judgment, one principle which emerges from these authorities is this: where, in a given matter, a solicitor acts for multiple clients (or groups of clients) with conflicting interests, and where one client (or group of clients) enters into a transaction which prejudices him and benefits the conflicting interests of another client (or group of clients) who is also represented by the same solicitor, that transaction will be regarded as suspect and will be liable to be set aside in the absence of clear evidence that the solicitor did in fact fully advise the client (or group of clients) who was prejudiced as to the terms and effect of the transaction.
(3) Analysis of the solicitors’ conduct in the present case
[81] In the light of this general principle as well as the notable features that we have highlighted in relation to the present case, we turn to examine the conduct of the solicitors, in particular, whether they had done enough in the circumstances to bring home to the Three Siblings the nature, effect and consequences of what they were signing when they executed the RBI Deed.
[82] Having examined the evidence, we are satisfied that the solicitors did not take sufficient steps to address the various concerns we have set out at [67] above when the Appellants executed the probate papers on 27 February 2004. In particular, because they did not take care to make clear the distinction between the RBI Deed and the RPER Deed, we find that the Three Siblings signed the RBI Deed under the mistaken impression that it related to Dawood’s appointment as the sole administrator of Father’s estate.
[83] In analysing the evidence which bears out this view, we have not confined ourselves to the evidence of what happened on 27 February2004 alone. Rather, we have found it necessary to widen our lens and bring into view the events leading up to the time of the execution of the probate documents. That is crucial to understanding the mindset of the solicitors (in particular, Mr Singh) at the time of the meeting on 27 February 2004. It must be stressed that this was the only time the solicitors met and communicated with the Appellants directly. As will become apparent shortly, the evidence in this regard, when analysed in the round, reveals that the solicitors were themselves not alive to the potential dangers surrounding the Three Siblings’ purported renunciation of their respective interests in Father’s estate in the circumstances. For this reason, we find great difficulty in accepting the solicitors’ evidence that Mr Singh “must have” fully explained the nature and consequences of the RBI Deed to the Three Siblings.
[84] On that note, we turn to examine the relevant chronology of events, beginning with Dawood’s first meeting with the solicitors on 19 February 2004.
(A) 19 February 2004: The first meeting
[85] The solicitors’ evidence of what happened at their first meeting with Dawood on 19 February 2004 is as follows. First, they said that Dawood had approached them to apply for letters of administration in respect of Father’s estate. They also said that Dawood had informed them that he had three siblings and had handed them the identity cards of all the Appellants on that occasion. It further appears from their oral evidence that Dawood showed them the First Certificate at this first meeting. This, as we have noted at [11] above, is confirmed by Ms Kaur’s handwritten attendance note. According to Mr Singh, he noticed that the First Certificate was “incomplete” as it only listed Mother and Dawood as beneficiaries without mentioning the Three Siblings. That being the case, Mr Singh then advised Dawood that a fresh Certificate of Inheritance would have to be applied for by the firm.
[86] We find it significant that Mr Singh had testified that he knew the process involved in obtaining a Certificate of Inheritance. In particular, he knew that it involved the applicant providing information on the family members of the deceased to the Syariah Court, which would then, relying on this information, issue the Certificate of Inheritance. Indeed, that was what the First Certificate said on its face, namely, that it was issued “based on information regarding the beneficiaries given by Mr Dawood Sultan, vide letter dated 13th July 2000” [emphasis added] (see also [7] above). This is also true in relation to the Second Certificate, in respect of which the information was provided by Mr Singh (see [12] above). It must follow from this that Mr Singh would have known that the First Certificate, which he politely described as “incomplete”, must have been issued on the basis of information supplied by Dawood that was inaccurate. Notwithstanding this, Mr Singh said under cross-examination that his suspicions were not aroused by the omission of the Three Siblings from the First Certificate. As a result, he did not ask Dawood about the circumstances in which the First Certificate had been obtained; nor did he ask to see the 13 July 2000 letter which Dawood had presented to the Syariah Court.

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Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin

Laws this judgment relies on

Grounds of decision

Introduction

The background facts

The parties, the disputed property, and the family business

Dawood obtains the first Certificate of Inheritance in 2000

Dawood instructs solicitors for the administration of Father’s estate

The Three Siblings lodge a caveat against the Property

The Appellants commence proceedings against Dawood

The pleadings

The Appellants’ pleaded case

Dawood’s pleaded case

The decision below

Our decision

The focus of the present appeal: The validity of the RBI Deed

A preliminary point: Is the Appellants’ claim time-barred under s 6 of the Limitation Act?

The validity of the RBI Deed

Two competing explanations for the RBI Deed

(1) The problem of timing the formation of such an agreement

(2) The problem of rationalising why such an agreement would have been entered into

The second hypothesis: The Three Siblings executed the RBI Deed without understanding its nature and effect

(1) The importance of the solicitors’ conduct in this case

(2) A brief interlude: A review of English authorities

(3) Analysis of the solicitors’ conduct in the present case

(A) 19 February 2004: The first meeting