High Court · Decided 27 October 2011

Wong Meng Cheong and another v Ling Ai Wah and another

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[2011] SGHC 233Case no. Suit No 607 of 2010 and Originating Summons No 1435 of 2005

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Laws this judgment relies on

Mental Capacity Act 2008

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Lai Siu Chiu J:
Introduction
[1] It is a happy thing to be the father unto many sons. That was true for most of the life of the octogenarian Wong Yip Chong (“WYC”), the central figure in this case, Suit No 607 of 2010 (“the Suit”). He was the patriarch of the Wong family and a prominent psychiatrist in Singapore until he was stricken with Alzheimer’s disease. WYC’s eldest son was Wong Meng Cheong (“WMC”), the first plaintiff, while Wong Meng Leong (“WML”), who is the second plaintiff was his second son. The second defendant Wong Meng Weng (“WMW”), was WYC’s youngest son. WMW was born to a different mother from the plaintiffs, namely to Patricia Ling Ai Wah (“PL”), the first defendant. WMC and WML are the sons of Tan Kim Yam (“TKY”), who was WYC’s wife. Besides the three sons, WYC had a fourth son in Wong Meng Kong (“WMK”) a psychiatrist, and a daughter, Wong Mei Sheong (“WMS”) who is an artist, with TKY. Both appeared as witnesses for the plaintiffs.
[2] This Suit started life on 2 July 2010 as an originating summons (“OS 648 of 2010”) filed by WMC, WML and WMW as the plaintiffs with PL as the sole defendant. It was converted to a writ on 11 August 2010 as the dispute raised highly contentious issues of fact. The then plaintiffs had prayed that a transfer IA/54236J dated 8 December 2004 (“the Transfer”) in respect of a property situated at 5 Chancery Hill Road, Singapore 309644 (“5CHR”) (whereby the manner of holding had been changed to include PL as a joint tenant) be declared null and void. After OS 648 of 2010 was converted to a writ, WMW declined to be a plaintiff and he was therefore made a co-defendant to the Suit with PL.
[3] In their statement of claim, the plaintiffs pleaded in the alternative that the joint tenancy of 5CHR should be severed and the property sold if the Transfer was found to be valid. On 30 November 2010, before the Suit came on for trial, the plaintiffs filed two statutory declarations in their capacities as WYC’s deputies. One of the statutory declarations was to sever the joint tenancy of 5CHR. On 1 December 2010, they followed that up with an applicationin the Suit for a declaration that their statutory declaration to sever the joint tenancy of 5CHR be declared valid. I dismissed this application on 1 February 2011 because it raised the identical issue which was going to be litigated at this trial.
[4] Besides her defence, PL filed a counterclaim against the plaintiffs on 20 September 2010. She prayed for a declaration that she is the sole beneficial of 5CHR and another property located at No 50 Draycott Park, #28-01 Draycott Towers, Singapore 309644 (“the Draycott Property”) which she had held in joint tenancy with WYC since 2002. The plaintiffs had also attempted to sever the Draycott Property’s joint tenancy – the other statutory declaration they filed on 30 November 2010 was for this purpose.
[5] In another action, Originating Summons No 1435 of 2005 (“the Originating Summons”), WMC, WML and WMW were appointed as members of a committee of the person and estate of WYC (“the CPE”) by the Court on 20 October 2005 under s 9 of the Mental Disorders and Treatment Act (Cap 178, 1985 Rev Ed). When the Mental Disorders and Treatment Act was repealed and the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”) came into force on 1 March 2010, the members of the CPE were deemed to be deputies appointed by the Court under the MCA to act jointly to make decisions on WYC’s behalf, pursuant to the savings provisions in the Third Schedule of the MCA.
[6] After the CPE was constituted, it took out an ex parte Summons No 5378 of 2006 on 23 November 2006 to seek repayment of a loan that WMC allegedly extended to WYC on 30 January 1999 in a transaction which involved a company called Synapse Company Pte Ltd (“Synapse”). Pursuant to this application, which was made unanimously, the Court ordered that a sum of about $1m be returned to WMC from WYC’s estate on 14 December 2006 (“the Synapse Order”). On 7 April 2010, the three deputies of WYC took out another ex parte Summons No 1542 of 2010. This application was for them to be empowered to sell WYC’s properties. The power to sell was granted on 13 May 2010 (“the 2010 Order”).
[7] On 15 December 2010, WMW applied via three summonses to revoke the appointments of WMC and WML as deputies of WYC; set aside the 2010 Order and set aside the Synapse Order. The substance of these summonses filed by WMW in the Originating Summons was the same as several of the reliefs prayed for in the counterclaims of both defendants in the Suit. Given the substantial overlap in issues of fact and law, the Originating Summons was consolidated with the Suit on 28 January 2011. I also granted leave to PL and TKY, the second intervener, to intervene in the issues arising from the Originating Summons under s 38(2), MCA and O 99 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) . Both were sufficiently connected to WYC and clearly had a real interest in the plaintiffs’ appointment and powers as WYC’s deputies.
[8] I had decided the following issues in the oral judgment that I delivered on 8 August 2011 after the trial concluded:
(i) whether PL was the sole beneficial owner of 5CHR;
(ii) if PL was not the sole beneficial owner of 5CHR, whether the Transfer was valid;
(iii) if the Transfer was valid, whether 5CHR’s joint tenancy should be severed and the property sold;
(iv) whether PL was the sole beneficial owner of the Draycott Property;
(v) whether the Synapse Order should be set aside;
(vi) whether the 2010 Order should be set aside; and
(vii) whether the plaintiffs’ appointments as deputies of WYC should be revoked.
Essentially, I dismissed the plaintiffs’ claims in the Suit with costs and awarded judgment to the two defendants on their counterclaim. As the plaintiffs have filed an appeal (in Civil Appeal No 104 of 2011) against my decision, I shall now set out the grounds of my judgment in full.
Whether PL was the sole beneficial owner of 5CHR
[9] WYC met PL sometime in 1969 while she was his clinic assistant. They developed a friendship. In or around 1972, WYC told PL that he had developed feelings for her. He disclosed to her that TKY suffered from schizophrenia. PL was initially reluctant to begin a relationship with WYC in view of his married status. I should point out that WYC was also 22 years older than PL. WYC’s sincerity however eventually won PL over. He promised PL that he would take care of her and treat her as his wife. He also bought her two rings and hosted a dinner with PL’s parents and siblings to formalise their union as husband and wife, albeit not in a legally valid way since WYC never divorced TKY. Soon after that, WYC and PL began cohabitating, initially at a house in Jalan Novena Selatan. After they began living together, TKY and her children continued to live in another house at 37 Goldhill Avenue (“37GHA”). However, WYC visited TKY and his children at 37GHA daily.
[10] In 1975, WMW was born. A year later, WYC bought a property at 7 Whitley Road (“7WR”) for PL to effectuate his promise of taking care of her. The plaintiffs submitted that 7WR was not beneficially owned by PL as its purchase was funded by WYC, and that gave rise to a presumption of resulting trust in favour of WYC: Lau Siew Kim v Yeo Guan Chye Terence [2008] 2 SLR(R) 108 at [34]. I found that the presumption of resulting trust was rebutted. I accepted PL’s evidence that 7WR was intended by WYC to be a gift to her. WYC and PL were not married to each other, and PL would have had no claim against WYC for her maintenance if their relationship ended. Under those circumstances, it was reasonable that WYC sought to assure PL of the security of their relationship by providing her with a house in which they could raise their child. The gift was perfected when 7WR was bought in PL’s sole name. WYC, PL and WMW lived there together, and PL considered it her “matrimonial home”.
[11] Sometime in 1981, WYC and PL decided to purchase a new property for their occupation as 7WR was not a conducive place to raise WMW. They chose 5CHR. 5CHR was acquired in this way. 7WR was sold on or about 3 April 1982 for $670,000. Since 5CHR was purchased before the sale of 7WR, WYC borrowed monies from Wong Yip Chong Pte Ltd (“WYCPL”) to pay for the purchase price of $790,000 first. WYCPL was a company incorporated by WYC in 1972 to run his psychiatric hospital, which was then called the Singapore Nursing Home and situated at Dunearn Road.
[13] I found that the parties’ common intention, immediately after 5CHR was transferred to WYCPL, was for PL to own the beneficial interest of 5CHR solely. The parties had intended for PL’s interest in 7WR to be replaced by her interest in their new “matrimonial home”, 5CHR. To this end, on 13 September 1982, PL transferred the sale proceeds of 7WR to WYC for the payment of 5CHR’s purchase. This was reflected in the flow of funds set out in PL’s and WYC’s bank passbooks. A common intention constructive trust had arisen, and it therefore did not matter that the purchase price of 5CHR exceeded the proceeds obtained from selling 7WR. WYCPL, which was then under the control of WYC, held 5CHR on trust for PL.
[15] PL testified that their mutual understanding was that WYC would eventually transfer 5CHR back to her. However, PL could not adduce any evidence to show whether WYC and PL agreed that this transfer of 5CHR’s beneficial interest back to PL was to take place at a specific date or even during WYC’s lifetime. On the balance, I found that PL had acquiesced to giving up the whole of her beneficial interest in 5CHR to WYC in 1985, and there was a common intention between them that WYC was to be its new beneficial owner solely.
[16] This common intention could be inferred from how WYC was able to unilaterally deal with 5CHR after 1985. These dealings were documented over the years. First, in the wills WYC made prior to the Transfer, his expressed intention was for 5CHR to be transferred to PL upon his death. The wills were dated 11 May 1997 (updated on 27 September 2000 and 27 January 2001) and 4 September 2003. There was no reason to think that WYC was not referring to PL’s beneficial interest in 5CHR in those wills.
[17] Further, in April 2002, WYC spoke to his solicitor Tan Yah Piang about effecting a transfer of 5CHR to PL as joint tenants. The plaintiffs learnt of this intended transfer and on 2 July 2002 organised a meeting with WYC and Tan Yah Piang. PL was notified of this meeting by WYC and attended it. At the meeting, the plaintiffs objected to WYC’s decision to transfer 5CHR to PL as a joint tenant for many reasons, one of which was that WYC should continue to hold 5CHR in his sole name in case funds were required to bail out WYCPL. On 3 July 2002, the plaintiffs visited WYC at 5CHR to reiterate their objections in the presence of PL. As a result, WYC instructed Tan Yah Piang to put the intended transfer on hold. It was in this context that PL stated in her AEIC that she “was at a loss to understand why [the plaintiffs] took such pains to prevent me from having title over a property, which was always intended to be mine.” In an e-mail she sent to WMW dated 3 July 2002, she described this aborted transfer:
[18] Both her AEIC and that e-mail to WMW showed that PL treated WYC as the sole beneficial owner of 5CHR in 2002, and the transfer which did not materialise was meant to give her some share in the property.
[19] Thirdly, before the Transfer took place, WYC was entitled to use 5CHR to raise funds without PL’s consent. From 2001 to the middle of 2004, WYC shouldered heavy financial burdens. After WMC became actively involved in WYCPL in 1995 and took over its management, he caused WYCPL to become a property investment company. WYC became the personal guarantor for $13m worth of loans which WYCPL took to purchase numerous properties as WMC embarked on ambitious property acquisitions. This personal guarantee became a perennial worry of WYC and after 2000, he was constantly thinking of ways to alleviate this concern in order to retire with peace of mind. WYC’s worry about the personal guarantee was well known to the family members and expressed in e-mails and notes over those years. Various arrangements were contemplated to address the concern.
[20] In early 2001, following failed negotiations for a sale of WYC’s psychiatric hospital Adam Road Hospital Pte Ltd (“ARHPL”), the financial strain on WYCPL increased. WMC promptly found another potential purchaser of ARHPL in Pacific Healthcare Holdings Pte Ltd (“PHH”), in June 2001. A deal was struck in December 2001 between WYCPL and PHH for the sale of 80% of ARHPL’s shares to PHH (“the PHH deal”). This, however, did not free WYCPL and correspondingly WYC, from financial difficulties because the substantial part of the deal pertained to the sale of 19 Adam Road, the land on which ARHPL sat. This sale which would have netted WYCPL $11m was not completed until June 2004. In the interim period, there were real risks that the PHH deal would fall through. WYC also endured a genuine prospect of the guarantee being called upon, especially during 2003 when poor market conditions meant that WYCPL’s property investments fared badly.
[21] In the light of his financial commitments, WYC handed to PL a personal note on 19 January 2003 to explain his decision to postpone the transfer of 5CHR to her as joint tenant. Part of the note read:
[22] This note stated unequivocally that WYC thought that any transfer of 5CHR was “subject to” his own financial security. WYC’s financial position did not improve over the next few months. In fact, WMC caused WYC to cross-guarantee a further sum of $7.92m in August 2003. But WYC was determined to ensure that his promise to PL would eventually be fulfilled. Hence, he wrote to Tan Yah Piang on 6 October 2003 and repeated his wish to bequeath 5CHR to PL. He also enquired about the effect of lodging a caveat in favour of her:
[23] It was clear from the quoted portion of the above letter that WYC was entitled to use 5CHR to satisfy his liabilities if they crystallised without first having to obtain PL’s consent. This showed that it was WYC and not PL who solely owned 5CHR beneficially up till the time the Transfer was executed in December 2004.
[24] During cross-examination, PL persisted in stating that WYC never regarded himself as having at least some beneficial share in 5CHR because “he knew it all along” that 5CHR was intended to be hers eventually. PL’s lay understanding was natural, but it was mistaken as well. The couple’s shared understanding that 5CHR would “eventually” be PL’s did not in itself give PL a beneficial interest in 5CHR. The eventuality was also subject to the abatement of WYC’s financial liabilities. That only happened some months before the Transfer took place. Hence, I held that PL was not the sole beneficial owner of 5CHR.
Whether the Transfer was valid
Did WYC have the mental capacity to execute the Transfer?
[25] In the absence of other vitiating factors, the Transfer’s validity depended on whether WYC had the requisite mental capacity to execute it. After reviewing the applicable law, and the factual and medical evidence, I decided that WYC was competent to execute the Transfer at the material time. WYC was unlikely to be suffering from Alzheimer’s disease then. Even if I was wrong and he did suffer from an impairment of the mind in December 2004, I found that WYC was still able to make a decision for himself regarding the execution of the Transfer.
[26] WYC’s conduct which preceded the execution of the Transfer showed that his decision was not merely rational in its outcome, but was carefully taken. WYC made his decision after he had identified and weighed the respective interests of parties who would be potentially affected, including his own. The activities which he continued to engage in and the various corporate documents he signed after December 2004 also rendered the allegation that he lacked the capacity to execute an instrument in the nature of the Transfer implausible.
The law on mental capacity
[27] Although the MCA had not come into force when WYC executed the Transfer in December 2004, the statutory test for capacity can be applied here. The statutory test is consistent with the common law definitions which were applied to determine whether decisions made in other contexts should be upheld: eg George Abraham Vadakathu v Jacob George [2009] 3 SLR(R) 631 at [29] which states the test for testamentary capacity. The common law definitions uphold the value of autonomy because capacity is a necessary condition for an individual to behave autonomously. In a similar vein, the underlying philosophy of the MCA emphasises an individual’s autonomy and the right to decide for himself. For example, the MCA provides that decisions cannot be taken on behalf of another person unless it is established that he lacks statutorily-defined capacity in relation to the specific matter. As a corollary, if a person possessed statutorily-defined capacity, his decision should stand as it is an autonomous one, assuming that other vitiating factors are absent. Given that the MCA was enacted to guide proxy decision-making and not to alter the pre-existing conception of autonomy embodied in the common law, its concept of capacity was not different from the common law’s.
[28] The MCA’s test is found in s 4(1). It states:
Section 5(1) of the MCA defines a person as being “unable to make a decision for himself” if he is unable to understand the information relevant to the decision; to retain that information; to use or weigh that information as part of the process of making the decision; or to communicate his decision.
[29] The MCA’s test for capacity can therefore be reduced into two components. There is a diagnostic threshold of an impairment of brain or mind function, and that must result in a functional inability to make a decision due to the lack of any of the elements in s 5(1) of the MCA. These two components were adopted from the equivalent United Kingdom legislation. The requirement for a functional inability directs our attention to the person’s decision-making process rather than the outcome of his decision. This focus is reinforced by s 3(4) of the MCA which states that a person is not to be considered incapacitated merely because he makes an unwise decision. Because a purely functional approach may still overreach, the Law Commission of England and Wales recommended an additional diagnostic threshold to be satisfied in order for incapacity to be established: Mental Incapacity (1995) (Law Com No 231) London: HMSO at pp 34 to 36. This threshold serves to prevent individuals from being caught by the MCA’s provisions simply for making unwise or eccentric decisions.
[30] The plaintiffs also bore the burden of proving on a balance of probabilities that WYC lacked capacity at the material time because s 3(2) of the MCA provides that a person “must be assumed to have capacity unless it is established that he lacks capacity”. This allocation of the burden of proof is unlike a case which concerned testamentary capacity since that is for the propounder of a will to prove: Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 at [52].
WYC’s functional abilities to make decisions around the time of the Transfer
WYC’s conduct in the period surrounding the Transfer
[31] Shortly before he signed the Transfer, WYC had attempted to transfer 5CHR in a different manner of holding. On or about 17 November 2004, WYC approached one G D Balakrishnan (“Balakrishnan”), a senior lawyer to act for him in the transfer of the entire beneficial interest in 5CHR to PL and WMW as tenants-in-common holding a 60% and 40% share respectively. Balakrishnan was WYC’s neighbour since 1968 when he moved to 39 Goldhill Avenue. Over the years, he became WYC’s close friend. Balakrishnan testified that WYC telephoned him to prepare the necessary documents for the transfer of 5CHR in the manner of tenancy-in-common. During the period from 17 November 2004 to 3 December 2004, they kept in regular contact and WYC was generally prompt in providing Balakrishnan with the relevant information for the transfer. Balakrishnan observed that WYC’s responses to his queries were always clear, coherent and concise.
[32] On 5 December 2004, Balakrishnan brought the transfer documents he had prepared to 5CHR. According to Balakrishnan, WML and PL were present at this meeting before he arrived. Balakrishnan testified that because WML objected to the transfer strenuously at that meeting, he advised WYC to take time to reconsider the matter, before taking the transfer documents away with him.
[33] The plaintiffs disputed Balakrishnan’s account. WML’s version of what took place on the evening of 5 December 2004 was diametrically different from PL’s and Balakrishnan’s. In his AEIC for OS 648 of 2010, WML claimed that WYC had called him, sounding “anxious”, sometime towards the end of 2004, and asked him to go to 5CHR immediately and “help him to look over some documents that he had been asked to sign.” WML alleged that WYC told him that he “sensed the documents were of some importance and wanted [WML] to be there with [WYC].” This implied that WYC did not even know the nature of the documents that were placed before him at that time. WML described what happened next as follows:
[34] At the trial, WML embellished his account. He claimed to have been awakened by a telephone call from WYC early in the morning of 5 December 2004, and rushed to 5CHR where he distinctly recalled seeing Balakrishnan’s car already parked when he arrived. I found WML’s version of what took place on 5 December 2004 to be unlikely to be true. First, Balakrishnan explained that the meeting which took place on a Sunday could not have been in the morning because as a Christian, he would have been in church at that time. Balakrishnan was also unlikely to be wrong about the date of the meeting because it was corroborated by PL’s account. Secondly, Balakrishnan testified that the transfer documents were kept in an envelope and were not taken out and shown to WYC at all during the meeting. Hence, WML could not have read them. This meant that WML went down to 5CHR not to assist a confused WYC but because WYC had informed him of his intention to transfer 5CHR to the defendants, and WML wanted to stop the transaction. Thirdly, Balakrishnan testified that WYC was attentive and it was obvious from WYC’s demeanour that he fully understood the implications of transferring 5CHR to the defendants. Fourthly, Balakrishnan’s evidence showed that the only pressure that was applied during the meeting was by WML. WML repeatedly urged WYC not to execute the transfer by raising issues such as WYC’s fiscal commitments and the rights of TKY. This evidence was consistent with the contents of a contemporaneous note that PL made during that meeting which stated that WML objected to the transfer because, “my father is much older; if father is infirm, I don’t want Pat to have the house, ‘bedrock’ to hang on” and “I prefer after his life time”. This note was dated 5 December 2004 and WML did not deny that he said those words at that meeting. PL testified that WML insisted that WYC continued to “have a stake” in 5CHR, in the event WYC’s finances dipped in the future. WML even asked Balakrishnan about the possibility of a joint tenancy instead of the proposed tenancy- in-common. Finally, it could be inferred that WYC understood what took place on 5 December 2004 from his actions shortly after that. WYC informed PL that he had carefully considered WML’s remonstrations and decided to transfer 5CHR to PL as a joint tenant with himself. This fresh decision to transfer 5CHR to PL as a joint tenant was an ample demonstration of WYC’s ability in December 2004 to listen to competing arguments, weigh them and arrive at a decision.
[35] Balakrishnan also inferred that WYC understood the nature of the transpired events because WYC called him some time after the 5 December 2004 meeting, and told him WMC was similarly trying to influence him on the same issue. WYC told Balakrishnan that he had considered the matter and decided to transfer 5CHR to PL and himself as joint tenants. Balakrishnan prepared the necessary documents and met WYC at 5CHR again.
[36] At this meeting on 7 December 2004, WYC signed the transfer instrument in Balakrishnan’s presence. Balakrishnan testified that throughout this meeting, it was clear that WYC was fully aware of the implications of what he was doing, and neither appeared muddled nor confused. The instructions WYC gave to Balakrishnan were very clear and concise. That same night, PL overheard WYC informing WML that he signed the said documents. WML disputed learning of the execution of the Transfer on that night. But what transpired the day after showed that news of the Transfer had reached the plaintiffs on 7 December 2004.
[37] On the morning of 8 December 2004, WMC telephoned Balakrishnan’s office before 9am to request a meeting. The call was diverted to his secretary’s handphone. WMC then called a second time shortly after 10am and demanded to see Balakrishnan. He then turned up, unscheduled and unannounced, at Balakrishnan’s office to object to the Transfer on various grounds. However, among his many objections, WMC never once said to Balakrishnan that WYC could not understand the nature of the Transfer. Instead, he informed Balakrishnan that he would return later that day with WML and WYC. WMC initially claimed emphatically that he did not make that morning visit to Balakrishnan’s office. He later changed his evidence in cross-examination. His memory was supposedly jolted by a drive past People’s Park where Balakrishnan’s office is presently located. WMC’s explanation was untrue because in December 2004, Balakrishnan’s office was at Robinson Road.
[38] Balakrishnan called WYC after WMC left that morning to inform him of the objections WMC had registered with him. WYC instructed Balakrishnan to proceed with the Transfer nevertheless. WYC also sent a fax and a letter to Balakrishnan to confirm his oral instructions to “proceed with the transfer of [5CHR] with immediate effect”.
[39] Just as WMC had intimated to Balakrishnan, a second meeting took place in the afternoon of 8 December 2004 at the latter’s office. The plaintiffs attended together with WYC. I found that WYC probably attended this meeting to placate the plaintiffs. Once again, the plaintiffs rehearsed their objections to the Transfer and argued that leaving 5CHR in the status quo would be most convenient for it to be used as collateral for WYCPL’s business. WMC originally denied any recollection of this second meeting but eventually admitted to it. However, he refused to give a direct answer on whether WML was present as well because WML had categorically denied in his AEIC to visiting Balakrishnan’s office at all. Upon hearing that Balakrishnan’s secretary would be called as a rebuttal witness, WML was compelled to change his evidence and admitted his statement in his AEIC was untrue. After that afternoon meeting, WYC again called Balakrishnan to proceed with registering the Transfer which he had executed. It was evident that WYC was resolute not to give in to the plaintiffs’ objections any more.
[40] Because Balakrishnan was apprised by WMC that WYC was “forgetful” and was sensitive to the dynastic squabble surrounding the Transfer, he prudently took the extra step of checking with WYC, on or about 23 December 2004, whether WYC could remember the Transfer and asked WYC to repeat his instructions of the previous fortnight. WYC did so and even agreed to put those instructions in a statutory declaration. On 23 December 2004, WYC went to Balakrishnan’s office and read the draft statutory declaration in his presence before meeting a Commissioner for Oaths, one B Rengarajoo who had an office in the same building, to affirm the same. Balakrishnan emphasised that this was only a precautionary measure because he had no doubts at all that WYC understood exactly what he did regarding the Transfer. The transfer instrument was eventually lodged with the Land Titles Registry in March 2005 after the title deeds of 5CHR were found.
WYC understood and signed many complex corporate and financial documents up till 2006
[41] It was undisputed that WYC signed corporate documents on behalf of WYCPL around and after the date of the Transfer. Many of those documents were co-signed by the plaintiffs. They included, amongst others, consents to short notice (3 February 2004, 30 September 2004); directors’ resolutions (3 February 2004, 1 March 2004, 16 September 2004, 11 October 2004, 15 December 2004, 30 December 2004, 22 August 2005 and 19 January 2006); a certified extract of resolutions passed at a WYCPL directors’ meeting on 16 February 2004 which WYC signed as chairman of the meeting; a supplemental deed between WYCPL and PHH as part of the PHH deal (25 June 2004); a deed of gift (25 June 2004); a deed of release (25 June 2004); minutes of the annual general meeting (30 September 2004); a directors’ resolution relating to the sale of 19 Adam Road (4 July 2005); minutes of an extraordinary general meeting (19 July 2005); a letter of consent (30 December 2004); and the financial statements of WYCPL for the year ended 31 March 2005. The plaintiffs were shown those documents at trial and admitted that WYC was able to read and understand all of them.
[42] Because such corporate documents were prima facie equal to or greater in complexity than the Transfer, WMC sought to explain away their significance. He asserted that they were nothing more than a follow-through of earlier decisions taken in 2001 when WYC was mentally unimpaired, whereas the Transfer was not. This distinction was unsustainable. The directors’ resolution of WYCPL dated 30 December 2004, for example, was not a follow-through of any prior decision. It was actually one of the decisions carried out pursuant to the proposals contained in the Christmas Recommendations which were prepared for WYC in December 2004. The resolution of 30 December 2004 bore the plaintiffs’ signatures in addition to WYC’s. It diluted WYC’s shareholding in WYCPL from 90% to 15%. It also allowed the plaintiffs, WMK and WMW to acquire shares in WYCPL for the first time. It was undisputed that WYC’s consent was essential for this to take place. The plaintiffs said they would not have allowed WYC to sign the resolution if they thought that WYC was unable to understand it. It was untenable for the plaintiffs to maintain that WYC could understand a share issuance transaction which diluted his shareholdings in a company of some worth but could not understand the workings of a simple transfer for which he had consulted with his solicitor and contemplated for years.
WYC practised successfully as a psychiatrist until he retired in mid-2005
[43] WYC was engaged in an active medical practice and saw patients on his own until his retirement on 3 May 2005, five months after he executed the Transfer. WMC himself exhorted WYC to delay his retirement because the PHH deal required ARHPL to satisfy certain revenue targets. In an e-mail to PL, WMC told PL that the “optimum time” for WYC to retire would be between April and June 2005. This implicitly affirmed that WYC was mentally robust to withstand the rigours of medical practice. WMC’s confidence in his father was vindicated.
[44] Throughout 2004, WYC had performed electro-convulsive therapy, prescribed medication and attended to challenging patients. No patient of WYC had made malpractice claims against him regarding any treatment he provided in 2004. The financial statements of ARHPL showed that WYC saw a total of 7,821 patients in 2004, averaging 650 patients each month that year. He saw 727 outpatients in December 2004 on top of inpatients. He was the highest earner at ARHPL by far for each and every month in 2004 for both inpatients and outpatients, earning an income of about $80,000 in December 2004 alone. Dr Francis Ngui (“Dr Ngui”), the medical director of ARHPL who was then in active practice himself, testified that WYC saw more patients than him that month. Dr Ngui also testified that WYC could have seen complicated cases even after June 2004, and he was unaware that WYC was diagnosed with dementia in December 2004.
[45] There was also documentary evidence which showed that WYC handled fetch cases in June and August 2004. Fetch cases required WYC to attend at the patients’ home with some nurses. He would have had to administer medication, coax the agitated and uncooperative patients into the ambulance (which he drove), and speak with the patients’ families in those scenarios.
WYC continued to drive, swim and engage in social activities until 2008
[46] Apart from his professional life, WYC was also functioning normally in his daily life up until at least 2008. There were various sources of evidence to confirm this. I begin with the evidence of WMS. She had written an e-mail to PL and WYC on 3 September 2004 to explain her personal plight and she requested financial assistance from WYC. She testified that she felt WYC was able to understand her situation (she was in the midst of divorce proceedings) and competent enough for her to be asking him for money at that time.
[47] WYC’s niece Patsy Graieg, who is based in Australia, was an important witness. She visited Singapore about twice a year from 1997 to 2008 and met up with WYC and his family each time. In 2004, Patsy Graieg visited Singapore thrice, in February, August and November. She was a trusted relative of WYC with whom WYC periodically consulted from 1997 to 2006 on financial issues regarding his retirement, business succession and the PHH deal, as she was a trained accountant. She testified that she had no doubt that WYC fully understood the complex issues surrounding the business deal in 2001, and he continued to display his trademark intelligence and high level of mental sharpness in the years leading up to the execution of the Transfer.
[48] According to Patsy Graieg, from 1997 until 2004, WYC told her that he was dissatisfied that PL’s name was not included in the title deed of 5CHR. She recalled WYC telling her that he wanted to transfer 5CHR to PL because PL had always treated him well and had made many sacrifices for the family over the years; there was more than one such discussion. Patsy Graieg was also told that a transfer was not carried out because one of WYC’s sons was strenuously opposing it. Significantly, she recalled that during the Chinese New Year of 2005, WYC informed her of the Transfer, and he felt very proud of his deed. This testimony which I accepted to be true and accurate showed two things. First, it was WYC’s long-held intention for PL to have a share of 5CHR and the Transfer was not impulsively carried out. Second, WYC remembered his decision for at least a month after he made it and was very satisfied with it.
[49] Patsy Graieg continued to interact with WYC on several occasions after 2005. She recalled that in 2007, WYC had engaged in a meaningful conversation with her on the Kosovo war. In March 2008, they celebrated the birthdays of WYC and Patsy Graieg’s father at a restaurant called Spring Court. Patsy Graieg recollected that WYC was perfectly capable of interacting with various people at the luncheon, and had spoke with the restaurateur on Spring Court’s history.
[50] Whilst Patsy Graieg was a witness for the defendants, I did not doubt the veracity and impartiality of her evidence. It was undisputed that she had always been and still was on good and close terms with the plaintiffs, who were her first cousins. She also regarded the defendants well. She had no self-interest in the matter, and had chosen to give evidence as a matter of conscience because WYC could not speak for himself.
[51] WYC was also driving his car as at August 2005 and gave up his driver’s licence only on 22 May 2006. PL confirmed that WYC would drive alone most of the time for as long as he had a driver’s licence and she would have stopped him immediately if she thought that it was unsafe for him to do so. Patsy Graieg also testified that WYC regularly picked her up from Changi Airport and drove her to her sister’s place at Club Street after he had retired from ARHPL in mid-2005. WYC did not get lost on those occasions.
[52] WML, who was a medical doctor, also certified WYC to be fit to drive on 5 November 2003. WML knew that this medical certification was valid for three years. In the medical examination form, the only remark which WML thought was pertinent to make was that WYC had undergone a coronary artery bypass grafting surgery in 1992. He declared WYC to not show “any evidence of psychiatric disorder” and accepted that WYC was not suffering from any “mental disability”.
[53] WYC also continued with other daily activities including attending various appointments with doctors and the barber, and having lunches with friends. He held a coherent discussion on 26 February 2004 with his doctor. He continued to swim without assistance in August 2008. WYC attended social functions in 2007, as evidenced by a letter one Oei Hong Leong had sent to him on 8 February 2007 which stated that WYC had “contributed to the sparkle and cheer” at a wedding which WYC had attended the previous month. WYC went on a ten-day trip to Japan in 2005 with WMW, PL and WMK’s family, and visited WMK’s family in Hong Kong in 2007. Critically, both Patsy Graieg and PL testified that WYC appeared to have faltered in his ability to manage his personal affairs only sometime in late 2008 or early 2009.
The plaintiffs’ allegations with respect to their father’s functional abilities
[54] Against this abundant and corroborated evidence that WYC possessed sufficient functional dexterity to discharge his professional duties as a clinical psychiatrist, drive a car with passengers and socialise with third parties after the Transfer was executed, the plaintiffs’ allegations of their father’s deficient mental state at the material time could not be countenanced. WML’s statement in his AEIC for OS 648 of 2010 that, “For years prior to the execution of the Transfer, my father could not even tell the time of day” was therefore patently untrue.
WYC’s medical condition at the time of the Transfer
The plaintiffs’ experts’ evidence
[55] The plaintiffs’ experts were Dr Alexander P Auchus (“Dr Auchus”) and Dr Christopher Chen (“Dr Chen”). They were also the treating physicians of WYC. Dr Auchus was the neurologist who first saw WYC at the Singapore General Hospital (“SGH”) on 3 December 2002 and again on 28 February 2003 and 25 July 2003. Shortly thereafter, Dr Auchus relocated to the United States and Dr Chen was the neurologist who took over the care of WYC. Dr Chen saw WYC at SGH on five occasions altogether – on 23 October 2003, 26 February 2004, 17 March 2005, 23 March 2005 and 1 June 2005. Clinical notes were recorded in all eight visits.
[56] Three neuropsychology reports (“the Neuropsychology Reports”) were rendered on WYC’s condition pursuant to various neuropsychological tests which were carried out on three visits with Drs Auchus and Chen. They were dated 3 December 2002, 25 July 2003 and 23 March 2005. The first two Neuropsychology Reports were co-signed by Dr Auchus and a neuropsychologist.
[57] In the Suit, Dr Auchus and Dr Chen each produced an expert’s report dated 18 May 2011 and 13 May 2011 respectively (collectively “the plaintiffs’ Expert’s Reports”). The plaintiffs’ Expert’s Reports considered the issue of whether WYC was able to make a decision for himself to execute the Transfer at the material time. Previously, Dr Auchus and Dr Chen had also each issued a medical report for the purposes of the appointment of the CPE in the Originating Summons. These medical reports were dated 3 September 2005 (“the 3 September 2005 Medical Report”) and 15 September 2005 (“the 15 September 2005 Medical Report”) respectively, and were annexed to the plaintiffs’ Expert’s Reports.
[58] I found that the plaintiffs’ Expert’s Reports which had been prepared for the Suit did not satisfy the requirements laid down by O 40A r 3(2) of the ROC for the following reasons. First, an expert owes his duty to the Court (O 40A r 2, ROC) and this requires him to disclose any special relationship between the party who called him and the expert because the expert must not only be impartial but must also appear to be so: Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] 2 SLR(R) 491 (“Pacific Recreation”) at [73]. Hence, the expert should avoid being the witness of a party with whom he has a special relationship. If that was unavoidable, he must disclose the relevant facts. On this point, there must be absolute transparency from the expert witness and their legal advisers as both are officers of the court: Gunapathy Muniandy v Khoo James [2001] SGHC 165 at [12.16], followed in Pacific Recreations.
[59] It emerged at the trial that both Drs Auchus and Chen enjoyed a fairly close relationship with the plaintiffs which they had failed to disclose in the plaintiffs’ Expert’s Reports. Dr Auchus did not say in his report that when he was employed at the Neurology Department of the SGH from 1998 to 2003, WMC was the head of department for most of that period. It was a small department and Dr Auchus worked closely with WMC. They had collaborated on research projects during his time at the SGH and continued to collaborate on numerous research publications after he left Singapore. Dr Auchus also admitted that the person who referred WYC to him for consultation in the first place was probably WMC.
[60] Dr Chen failed to disclose, in both his AEIC and expert’s report, his friendship with WMC. In fact, he had been friends with WMC for 17 years; WMC was Dr Chen’s head of department at the Neurology Department at the SGH for eight years; WMC was Dr Chen’s first superior on Dr Chen’s return to Singapore from his studies and work in the UK; in the past 17 years, they collaborated in approximately 50 research projects; those collaborations continued even after WMC ceased to be the head of department. On the day he testified at the trial, Dr Chen was jointly writing three papers with WMC and he had received a hamper from WMC’s wife on or about 1 February 2007.
[61] Dr Chen was also friends with WML. He even addressed WML by his nickname “Merng” in correspondence. It emerged that Dr Chen had met WML through his wife at least a decade earlier. His children played with WML’s children and he had visited 5CHR for WML’s daughter’s birthday party.
[62] Given the extent of the personal and professional relationships of Dr Auchus and Dr Chen with the plaintiffs, it should have been plain to the plaintiffs and/or their solicitors, that the two doctors should not have been briefed as expert witnesses. Paragraph 4.8.4 of the Code of Practice: Mental Capacity Act 2008 (“the Code”) issued by the Office of the Public Guardian, which applied by virtue of s 41(6) of the MCA, also stated that, to avoid any conflict of interest the doctor who conducts the mental assessment capacity of a person “should not be related to … the individual seeking the formal assessment of the person.” That was in substance what had transpired in this case when WMC first referred WYC to Dr Auchus for diagnosis, and subsequently when Dr Auchus and Dr Chen were asked to opine on WYC’s capacity in the application for the CPE’s appointment, the Originating Summons and the Suit.
[63] Secondly, apart from any appearance of bias, I found that both of the plaintiffs’ experts did display instances of partiality to the plaintiffs’ case. They were selective in the presentation of the relevant medical evidence as they had highlighted only material which supported the plaintiffs’ case and omitted to mention matters adverse to it.
[64] In his Expert’s Report and in the 3 September 2005 Medical Report which was annexed to the Expert’s Report, Dr Auchus mentioned that his examination of WYC on 3 December 2002 “revealed marked impairment of memory function with 0/3 objects recalled at 5 minutes, as well as disorientation of day and date”. What was not mentioned was that Dr Auchus had asked WYC other questions which WYC could answer. Dr Auchus’s clinical notes indicated that WYC had “good attention, January to December and December to January without errors. Good language, follows three step commands, names” and “good attention … accurate clock face” and these were not referred to in the Expert’s Report although Dr Auchus testified that they were relevant matters. He chose instead to select from the many questions he had asked WYC and stated those that supported the opinion he was trying to convey. This was unjustified because all the questions he had quoted were actually parts of one standard questionnaire test, called the mini-mental state examination (“MMSE”), which was commonly used to screen for dementia. WYC had scored 26 out of 30 for the MMSE, and any score above 22 was in the normal range of MMSE scores.
[65] The MMSE, in turn, was one of the various neuropsychological tests that were carried out in order to render each neuropsychology report. The manner in which Dr Auchus referred to the contents of the 2003 Neuropsychology Report in his Expert’s Report was also misleading. He had quoted from the 2003 Neuropsychology Report as a basis to say that WYC was impaired in verbal memory and visual memory. But he did not point out that the same neuropsychology report stated that WYC’s “global dementia screening scores”, “language”, “visuoconstruction and visuomotor speed task performances” were unimpaired, and WYC’s “attention” not only was unimpaired but registered an improvement when compared with the results in the 2002 Neuropsychology Report. It was also significant that Dr Auchus did not annex the 2002 and 2003 Neuropsychology Reports to his Expert’s Report, when both of them did not support his diagnosis of Alzheimer’s disease and the latter of which he had quoted from selectively.
[66] Dr Chen was not impartial as well. He testified that he had no independent recollection of the consultations WYC had with him seven years ago except for what his clinical notes recorded. His Expert’s Report, however, gave a slanted interpretation of those clinical notes. While no mention of any decline in WYC’s cognitive abilities were recorded in Dr Chen’s notes taken between October 2003 and March 2005, Dr Chen stated in his Expert’s Report without qualification that WYC’s cognitive functions were declining during that period. Dr Chen claimed that the 2005 Neuropsychology Report supported his view that WYC had deteriorated. But not only was this neuropsychology report not annexed to his Expert’s Report, Dr Chen also did not point out that it had concluded that WYC’s “neuropsychological profile showed generally stable cognitive status”. The results of the various neuropsychological tests done in 2005 were in fact the same or better for more than half of the tests done in 2002.
[67] There was also no mention by Dr Chen that the 2005 Neuropsychology Report indicated that WYC was “ADL-independent” (which meant that WYC was able to perform activities of daily living independently) and his attention was unimpaired. Most importantly, Dr Chen failed to inform the Court that WYC had obtained a full score on the “Frontal Assessment Battery” test (“the FAB test”) which indicated that there were no problems with WYC’s executive functioning as at March 2005. The significance of the FAB test will be elaborated on below.
[68] Nothing in Dr Chen’s Expert’s Report alluded to his observation in February 2004, that WYC was able to make decisions for himself and coherently discuss his medical practice, social events and driving, all of which were found in the clinical notes. Dr Chen admitted that those were relevant facts, especially since what he was doing in his Expert’s Report was to extrapolate from the limited information he gathered from the five consultations WYC had with him.
[69] Thirdly, an expert’s report must give details of any literature or other material on which the expert witness had relied in making the report (O 40A r 3(2)(b), ROC) and, where there is a range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for his opinion (O 40A r 3(2)(e), ROC).
[70] Both of the plaintiffs’ Expert’s Reports did not fulfil the mandatory criteria because they did not attempt to explain the contradictory objective medical evidence which I found to be highly relevant on the basis of PL’s expert’s evidence. Dr Auchus and Dr Chen had merely provided the Court with their factual accounts of consultations with WYC and stated their bare conclusions in support of the plaintiffs’ case. Both appeared to have written their Expert’s Reports under the mistaken belief that their opinions would be accepted because they were WYC’s treating physicians.
[71] With respect to Dr Auchus, his Expert’s Report did not explain why he claimed to have diagnosed WYC with Alzheimer’s disease on 3 December 2002 when the conclusion of the 2002 Neuropsychological Report he co-signed had indicated otherwise. An explanation was warranted since he acknowledged that neuropsychological tests were an objective tool that was useful in making a diagnosis of Alzheimer’s disease. Dr Auchus also accepted that he had selectively excluded reference to information which did not support the plaintiffs’ case.
[72] Dr Chen’s clinical notes on the first four visits by WYC (from October 2003 to March 2005) recorded that WYC only had clinically “mild” and not moderate or severe dementia. He agreed that a person who had mild dementia was usually able to make decisions for himself. But he offered no reasons in his Expert’s Report and at trial for concluding that WYC was, unusually, unlikely to be able to make a decision for himself to execute the Transfer. Dr Chen also did not explain how he arrived at his conclusions when the neuropsychology reports showed that WYC’s cognitive status was generally stable between December 2002 and March 2005.
[73] Fourthly, neither of the plaintiffs’ experts was able to give a reliable expert opinion on the issue of WYC’s mental capacity in December 2004. Dr Auchus stated candidly in his AEIC that he was unable to express a definitive opinion on the issue. He confirmed this position at trial. He also said he had no reason to challenge Dr Chen’s view that WYC was still able to make decisions for himself in February 2004.
[74] I was of the view that Dr Chen’s conclusions on WYC’s mental state in December 2004 were unreliable. At trial, Dr Chen stood by his opinion that WYC was able to make rational and coherent decisions in February 2004, which was the last occasion Dr Chen examined WYC before the Transfer took place. There were serious deficiencies in the analysis Dr Chen undertook to then conclude that WYC became mentally incompetent about nine months later. Dr Chen admitted that there was a gap in the information he had because he had no contemporaneous medical records of WYC in December 2004, and had instead extrapolated towards a conclusion. He also accepted that the rate of deterioration for patients with dementia was not constant. Despite these undisputed propositions, he gave a definitive opinion in favour of the plaintiffs’ case.
[75] Further, Dr Chen admitted that he did not consider any other facts or documents relating to what WYC was able to do in and after December 2004. Although he had asked for them, the plaintiffs did not provide him with any of that information. Thus, he had based his opinion on incomplete information. The plaintiffs denied him information such as the tasks WYC was doing professionally as a doctor, a company director and socially. Dr Chen agreed that such information was relevant in the determination of WYC’s mental competence. Even the information he relied upon and found in his clinical notes was not completely accurate. For example, WYC was still driving independently in June 2005 despite what was recorded in the clinical notes of 1 June 2005. Hence, I rejected the plaintiffs’ Expert’s Reports and attached no weight to the opinions expressed therein. I only took into account the factual aspects of the evidence of Dr Auchus and Dr Chen.
The first defendant’s expert’s evidence
[76] PL’s expert, Dr Chong Piang Ngok (“Dr Chong”), provided a more useful expert’s report. Dr Chong opined that although WYC had mild dementia, he was unlikely to be suffering from Alzheimer’s disease in December 2004, and that it was highly unlikely that WYC was incapable of understanding the nature of the Transfer. In his report and at trial, he carefully explained how he came to his conclusion. Dr Chong first showed why the plaintiffs’ experts’ opinions on WYC’s medical condition and functional ability were not supported by the objective medical evidence such as the neuropsychology reports and other scan results. He then elucidated why a clinical assessment of WYC in December 2004 also should not have diagnosed WYC with Alzheimer’s disease.
The objective medical evidence
[77] In September 2000, WYC had undergone magnetic resonance imaging (“MRI”) and positron emission tomography (“PET”) scans of the brain, and also consulted one Dr Tommy Chan (“Dr Chan”), a clinical psychologist in Hong Kong. Dr Chan found WYC to be weak in short-term memory but did not consider it to be pathological for his age. WYC was assessed to have exceptional performances in comprehension of social conventions, abstract thinking, integration and perceptual ability. Dr Chan found no significant signs of dementia in WYC and concluded that the findings did not fulfil the full diagnostic criteria for dementia (Alzheimer’s type or vascular) as defined by the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). The MRI scan results were interpreted by one Dr Hector T G Ma to show that “[t]he total changes are consistent with normal aging process with atherosclerosis of the brain. Serial follow-up is worthwhile to see if the pace of deterioration is quicker than in a normal aging brain or not.” The report of the PET scan results prepared by one Dr Kevin K M Tse stated, “In a patient presented with dementia-like picture, the possible diagnosis may include an early case of Pick’s disease.”
[78] Dr Chong reasoned that since Dr Chan had ruled out dementia at that point in time, the “possible diagnosis” of Pick’s disease was inapplicable. Dr Chong then highlighted the aforementioned deficiencies in the analysis of the plaintiffs’ experts and how the plaintiffs’ experts’ opinions were inconsistent with the objective medical evidence. He testified that due weight should be given to formal objective and quantifiable information in this case.
[79] I accepted Dr Chong’s reasons for placing emphasis on the objective medical evidence. First, the neuropsychological tests were conducted by specialised professionals in an unrushed environment as opposed to a brief examination by a doctor in a busy clinic. Dr Chen, for example, admitted that he was in a rush during WYC’s consultation with him on 23 March 2005. Dr Auchus also conceded under cross-examination that the 2002 neuropsychological tests were performed after WYC’s consultation on 3 December 2002. Hence, whilst Dr Auchus wrote “mild [Alzheimer’s disease] likely” in his clinical notes, little weight should be given to that because he co-signed the 2002 Neuropsychology Report which contradicted this possibility. Secondly, evidence from the various factual witnesses showed that different people had arrived at opposing conclusions on WYC’s mental state. Patsy Graieg and WMS who had made periodic visits to WYC gave differing descriptions of his mental state. Unlike Dr Auchus, Dr Chen said that WYC only had mild cognitive impairment. In the face of these disagreements, the neuropsychological test results had to be given greater weight. Above that, given the relationships between the plaintiffs’ experts and the plaintiffs and the instances of bias I had found in the plaintiff’s Expert’s Reports, it was only correct for a fact-finder to rely more heavily on the objective medical evidence.
The criteria for a diagnosis of Alzheimer’s disease were not satisfied
[80] Dr Chong also testified that based on the contemporaneous clinical notes, a subjective approach would similarly turn up no valid grounds for diagnosing WYC with Alzheimer’s disease in December 2004.
[81] The DSM-IV criteria for the diagnosis of Alzheimer’s disease were described in the Ministry of Health’s 2007 clinical guidelines for dementia with which both Dr Auchus and Dr Chen were familiar. In order to satisfy the DSM-IV criteria for Alzheimer’s disease, a patient must have memory impairment and deficits in one other cognitive domain (ie aphasia, apraxia, agnosia and executive dysfunctioning) of sufficient severity to cause impairment in occupational or social function. Dr Chen’s claim at the trial that WYC fulfilled these criteria because he avoided taking on complicated cases in his medical practice and drove only on familiar routes was incorrect. As noted above at [45], the evidence showed that WYC was handling fetch cases by himself in 2004 and driving from Changi Airport to Club Street in 2005. Even if WYC could only drive on familiar routes, it indicated a loss of memory and not apraxia since WYC retained the ability to drive and apraxia was a condition characterised by an inability to perform a learnt function. WYC did not suffer from aphasia as he could hold coherent discussions with Dr Chen about his social and professional activities. He could not have suffered from agnosia since he had no difficulty recognising familiar faces or items.
[82] Dr Chong was fair to note that by 15 September 2005, WYC’s condition could have progressed to clinical Alzheimer’s disease. In the light of the objective medical evidence and Dr Chong’s opinion, I did not think WYC was suffering from Alzheimer’s disease at the time when he executed the Transfer. I also found that it was more probable than not that Dr Auchus had made the diagnosis of Alzheimer’s disease retrospectively, when he wrote the 3 September 2005 Medical Report, while Dr Chen merely embraced that incorrect diagnosis in the 15 September 2005 Medical Report without evaluating the facts himself.
Immaterial even if WYC had Alzheimer’s disease
[83] Even if I was wrong and WYC had Alzheimer’s disease or any other impairment of mind such as mild dementia at the material time, I was satisfied that the impairment did not cause him to lose the functional ability required for him to execute the Transfer.
[84] All three expert witnesses agreed that someone with Alzheimer’s disease may still be capable of making a decision for himself. For example, Dr Chen recorded in his clinical notes of 23 October 2003 that WYC was competent to make a will. This was also consistent with Dr Chong’s evidence that WYC’s short-term memory deficits would not have affected his ability to understand the nature of the Transfer. With respect to the Transfer, however, WYC’s patchy forgetfulness was immaterial against the context of Balakrishnan’s evidence that WYC could remember his own instructions more than a fortnight later and Patsy Graieg’s evidence that WYC recounted proudly to her during the Chinese New Year period the following year about having executed the Transfer.
[85] WYC’s executive functioning was also the subject of Dr Chan’s report dated 18 October 2000 and the 2005 Neuropsychology Report. Drawing from their findings, Dr Chong said that WYC’s higher order thinking was unimpaired on 23 March 2005, and it was highly unlikely that WYC was incapable of understanding the documents relating to the Transfer. The 2005 Neuropsychology Report showed that WYC achieved a maximum score on the FAB test in March 2005. Dr Auchus acknowledged that this indicated that WYC’s executive functioning was intact. Dr Auchus explained that executive functioning referred to the ability to make decisions, to follow through, to stay focussed and to shift topics. During re-examination, Dr Auchus elaborated on how “executive dysfunction” was related to the ability to make decisions. He said, “executive function is … largely a result of proper functioning of the frontal lobes of the brain … it is important in decision-making and in this case, Dr Wong scored, ah, well on this test.”
[86] Dr Auchus also testified that he would not have waited till the last moment in his patient’s decline to stop him from treating patients of his own; and as at 28 February 2003, Dr Auchus did not feel a need to stop WYC from practising medicine. Notably, none of the doctors who had dealt with WYC, including Dr Ngui and the plaintiffs, had reported to the Singapore Medical Council in 2004 that WYC was unable to practise medicine although they were under a professional and ethical duty to report such doctors to the authorities. Instead, WMC prevailed upon WYC to postpone his retirement. WMC clearly did not think WYC was going to bungle the patients’ treatments at ARHPL and jeopardise the PHH deal.
[87] Dr Chong stated that the ability to practise medicine, administer treatments and prescribe medication required WYC to understand, distinguish and analyse difficult issues. Dr Auchus stated that a doctor who attended to a fetch case such as the ones WYC did would have been required to make judgment calls on how best to manage the patient in a dynamic environment.
[88] The factual and medical evidence together left me with no doubt that WYC was able to understand the nature and consequences of the Transfer which he executed on 7 December 2004. I found that the plaintiffs had not discharged their burden of proving their allegations to the contrary.
Was the Transfer was procured by undue influence?
[89] The plaintiffs argued that even if WYC was competent to execute the Transfer at the material time, it should still be set aside because it was procured by undue influence exerted by PL. At law, the plaintiffs bore the burden of proving that actual undue influence was exercised. But they sought to have the burden of proof reversed by relying on presumed undue influence. Before there can be presumed undue influence however, the plaintiffs must first show two elements existed: (i) a relationship of trust and confidence and (ii) the transaction concerned was inexplicable; neither was proven.
[90] With respect to the first element, there is ordinarily no presumption of trust and confidence applicable in a husband and wife relationship: Howes v Bishop and wife [1909] 2 KB 390 and Barclays Bank plc v Khaira and another [1992] 1 WLR 623 at 632. As the plaintiffs had repeatedly stressed, the relationship between WYC and PL was not even one of husband and wife even though they did live together as a couple. The plaintiffs were also unable to convince me that WYC reposed actual confidence in PL or that she had acquired “domination” over him: Goldsworthy v Brickell and another [1987] 1 Ch 378 at 404. This was evident from the way WYC consistently prioritised his own financial security ahead of his wish for PL to have a share of 5CHR. Even if I was wrong on the first element, the Transfer was readily explicable in the light of the long-held intention of WYC that PL should eventually have 5CHR. This was an intention which had its roots in the purchase of 5CHR itself. Hence, I rejected the contention that the plaintiffs could rely on presumed undue influence.
[91] The plaintiffs failed to show that PL had exercised any undue influence or exerted illegitimate pressure on WYC to execute the Transfer. Conversely, the evidence showed that it was the plaintiffs who had mounted a sustained campaign which stretched from 2002 until the date of the trial, to prevent any interest in 5CHR from being transferred by WYC to PL in any way, whether via an inter vivos transfer or a will. They blocked WYC from instructing Tan Yah Piang to execute a transfer of 5CHR; forced WYC to worry about his fiscal fitness; counselled him on the seeming prudence of keeping 5CHR under his sole ownership; caused him to believe that PL might leave him once she had 5CHR; persuaded WYC to revoke his will in late 2003 which had left 5CHR to PL; and tried to prevent WYC from instructing Balakrishnan on the execution of the Transfer.
The plaintiffs’ pleadings
[92] In any case, the plaintiffs’ pleadings on this issue were insufficient to support a claim of undue influence. The only reference to any alleged pressure exerted by PL on WYC was in paragraph 23 of the statement of claim which reads:
[93] The allegations in relation to the insurance premium payments and the policies’ beneficiaries bore no connection to the issue of whether WYC had executed the Transfer due to PL’s alleged undue influence. PL also provided a reasonable explanation why WYC took over the payments of her insurance premiums – she had lost her job at that time. The sole allegation of undue influence that could be identified in the statement of claim was that PL had threatened to leave WYC if he did not give in to her. However, in the further and better particulars furnished by the plaintiffs, they were unable to state what PL had allegedly demanded from WYC. The plaintiffs said they “were not present when [PL] made demands to WYC. However, from the heated quarrel between [PL] and WYC, the plaintiffs understood [PL’s] threat to be related to [PL’s] demand for assets”. Therefore, they had no personal knowledge of the substance of any alleged demands made by PL. They did not call any other witness with personal knowledge of the alleged demands to testify.
The alleged undue influence exerted by PL
[94] Quite apart from the deficient pleadings, the plaintiffs’ allegations were not founded on any credible evidence. WML described the quarrel referred to in the plaintiffs’ further and better particulars as having taken place in 2003. He claimed to have received a telephone call from WYC to go to 5CHR, and when he arrived, he inferred from the tense atmosphere that WYC and PL had just quarrelled. Even if I were to accept WML’s word at face value, the problem was that he did not witness the quarrel and had no inkling of what had transpired. PL testified that the quarrel arose because of the stress she experienced from the plaintiffs’ unrelenting pursuit of information on her finances. She naturally felt aggrieved at repeated intrusions into her privacy. Her subsequent decision to leave 5CHR that evening to cool down was therefore unrelated to the Transfer. I accepted her explanation. WYCPL was facing financial pressures at that time and that caused the plaintiffs to attempt to identify which of PL’s assets they could take from her if they deemed necessary.
[95] WML attempted to show that the Transfer was inexplicable by alleging in his AEIC for OS 648 of 2010 that WYC had expressed the intention to always retain 5CHR in his name. But this was contradicted by WYC’s attempts to transfer an interest in 5CHR to PL over the years. It was also contradicted by several notes WYC wrote in 2003. WML, however, claimed that those notes written in 2003 revealed the pressure PL was putting on WYC to transfer 5CHR to her. In cross-examination, WML was forced to admit that none of the notes demonstrated what he asserted at all. They only reflected WYC’s clear intention that PL should have 5CHR at some point in time. In the note dated 19 January 2003 (see above, at [20]), WYC had written that PL “deserve[d]” 5CHR because he was moved by a scene he had witnessed of PL reading to his grandchildren. In another note dated 3 September 2003, WYC penned, “Transfer house through will to Pat + MR. Pat’s worry: if will is ‘changed’ she gets nothing.” WML conceded that this only indicated that PL was worried and did not display any pressure being applied on WYC. WML also agreed that a third note dated 10 September 2003, where WYC had jotted down, “Spoke with ML that I give No. 5 to Pat + Rong. Will effect it on Saturday” did not reveal any pressure exerted by PL. A fourth note dated 20 September 2003 exhibited a rational thought process applied by WYC to deal with his assets and showed that he was capable of making decisions about his affairs in September 2003.

The judgment continues past this page. Read the rest at eLitigation.

Wong Meng Cheong and another v Ling Ai Wah and another

Laws this judgment relies on

Grounds of decision

Introduction

Whether PL was the sole beneficial owner of 5CHR

Whether the Transfer was valid

Did WYC have the mental capacity to execute the Transfer?

The law on mental capacity

WYC’s functional abilities to make decisions around the time of the Transfer

WYC’s conduct in the period surrounding the Transfer

WYC understood and signed many complex corporate and financial documents up till 2006

WYC practised successfully as a psychiatrist until he retired in mid-2005

WYC continued to drive, swim and engage in social activities until 2008

The plaintiffs’ allegations with respect to their father’s functional abilities

WYC’s medical condition at the time of the Transfer

The plaintiffs’ experts’ evidence

The first defendant’s expert’s evidence

The objective medical evidence

The criteria for a diagnosis of Alzheimer’s disease were not satisfied

Immaterial even if WYC had Alzheimer’s disease

Was the Transfer was procured by undue influence?

The plaintiffs’ pleadings

The alleged undue influence exerted by PL