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BHR and Another v BHS - [2013] SGDC 149 (21 May 2013)

21 May 2013

District Judge Foo Tuat Yien:

1 This is an application filed on 24 April 2010 by a daughter, BHR (1st Plaintiff), a xxx in a company and another son (2nd Plaintiff), a xxx in Singapore, for:

i) a declaration under the Mental Capacity Act (“MCA”) that their mother P lacks capacity to handle her personal welfare, property and affairs because of an impairment of or a disturbance in the functioning of her mind or brain; and

ii) an order that they be appointed her deputies to act for P on her behalf in respect of her personal welfare, property and affairs.

2 P is an 87 year old widow, who is wheel-chair bound and suffers from dementia and arthritis. She is dependent on family members for her basic needs and personal matters including help with bathing and moving around the house. P was party to this action and represented by counsel until 21 December 2011, when her counsel withdrew. She was withdrawn as a party on 3 April 2012.

3 Their sister, BHS is defendant, who contests this application. She works in the education field and she used to run a child tuition centre in one of P’s properties at Property A. On 19 September 2012, she gave the court an application for her to be appointed as deputy for P, should the court find that P lacks capacity. She was represented by counsel until 5 March 2012, when her counsel filed a Notice that she intended to appear in person.

4 In the course of proceedings, parties: i) agreed that P had capacity to decide matters relating to her medical treatment and her personal welfare including whom she might want as her care-giver; ii) agreed that P lacked capacity to handle her financial affairs; but iii) disagreed on whether P had capacity to deal with and dispose of her properties, being her estate, title and interest in Property B and Property A (the two properties), whether P had testamentary capacity, whom should be appointed deputy and the powers to be given to a deputy.

5 The Plaintiffs also raised allegations that the Defendant was exercising undue influence on P causing P to act to her detriment. This point is relevant on the issue of whom should be appointed deputy and whether the court should order the making of a statutory will for P.

6 P’s children - P has 6 living children (including the two plaintiffs) and a son, who predeceased her. Three of P’s other children, support the plaintiffs’ application. The Defendant is the only child opposing the application.

7 The relationship between the Defendant and P’s other 5 children (“siblings”) is extremely strained and acrimonious. P lived at the family home at Property B with the Defendant and a maid. P’s eldest living son, F and his family and 1st Plaintiff, BHR also lived there until after this action was filed, when they moved out. They say that they left their home fearing for their personal safety because of the Defendant’s threatening conduct and behaviour.

8 Assets - P has the following assets: i) a half share in the family home, being a bungalow, Property B, as beneficiary of the estate of her late husband G, who died intestate (the other half share being held in trust for G’s children) – this property is still registered in the names of the two plaintiffs in their capacity as administrators of the estate of G; ii) a bungalow at Property A given to her by her late husband; and iii) money in 4 bank accounts, that is a United Overseas Bank (UOB) Savings Account, a UOB Unit Trust Account and a UOB Time Deposit Account held jointly with 1st Plaintiff (until it was withdrawn on 10 March 2010) and a Post Office Savings Bank (POSB) Savings Bank account in her sole name. The first three accounts were opened in 2007 jointly with the 1st Plaintiff.

9 P’s Will - In 1996, P made a will appointing the Plaintiffs as her executors and leaving all her assets equally to her 6 children and the issue of a deceased son. P had, on 3 March 2010, made a new will, after the Defendant, without the prior knowledge of her other children, brought her to see a lawyer to execute a new will. The Defendant, who has possession of the 2010 will, has refused to produce this will despite a court order. The contents of the will are not known save that the Defendant has said that the probability of P willing “the thing in favour of me is very very high”.

10 P’s liquid assets and jewellery - It is not disputed that on or about 10 March 2010, P, assisted by the Defendant, withdrew all moneys ($58, 395.69) in the 3rd account to transfer to another UOB account and thence to a POSB account in the joint names of P and the Defendant. The Defendant admits that the money in this account has been depleted but says that she used the money for P’s expenses. When asked on the withdrawals of $20,015 and $4,173 from this account, the Defendant said that it could have been of payment of P’s legal bills but has failed to produce the evidentiary documents despite saying that she would do so. The remaining moneys in P’s bank accounts are estimated at about $38,000. P has jewellery, some in the 1st Plaintiff’s possession and some in the Defendant’s possession.

11 On 14 August 2012, the Plaintiffs applied to amend their Originating Summons to ask the court to order the execution of a statutory will, under section 23(1)(i) of the MCA as they dispute the validity of the 3 March 2010 will.

11 On 7 February 2013, I found and declared that P lacked capacity within the meaning of sections 4 and 5 of the Mental Capacity Act (Cap 277A) to make decisions for herself relating to her property and affairs, including her financial affairs. I appointed the 1st and 2nd Plaintiffs as P’s deputies to act jointly. I made the following orders:

i) the deputies be authorised to take possession or control of P’s property and affairs (including P’s property at Property A, Singapore 458101 and P’s 50% beneficial interest in Property B, Singapore 458098) and to exercise the same powers of management and investment as P has as beneficial owner subject to the terms and conditions of my order;

ii) the deputies be empowered to rent and lease Property A and in respect of P’s estate, title and interest in Property B, to do all that is necessary for the rental and leasing of the properties including renovations and matters ancillary and related to the rental and leasing thereof subject to the condition that P be allowed to stay at Property B during her lifetime with her caregiver/s;

iii) the deputies be empowered to open a new bank account in P’s name for and on behalf of P and to withdraw all moneys from all bank accounts of P, whether held in P’s sole name or jointly with others, including the bank accounts mentioned in paragraphs 8 and 10 and to deposit the moneys into P’s new bank account;

iv) the deputies to deposit all moneys of P into the new bank account and to use P’s moneys for P’s medical expenses, maintenance, use, benefit and the discharge of P’s debts and obligations;

v) the deputies be empowered to conduct legal proceedings in P’s name or on P’s behalf as may be appropriate to trace and recover her assets; and

vi) The execution of a statutory will for P with the Plaintiffs to be her executors and trustees and for her estate to be distributed equally amongst her 6 children and the issue of her deceased son. The terms of the statutory will are similar to P’s 1996 will. It provides that after payment of P’s debts and expenses, the executors and trustees (the Plaintiffs) are to hold P’s property on trust to sell the same with power in their absolute discretion to postpone sale and to hold the proceeds of such sale, all unsold property and ready money to divide equally amongst all of P’s children including the Defendant and the estate of P’s late son.

12 The statutory will was executed and sealed on 8 February 2013. I called parties back on 13 February 2013 to address a concern that the Plaintiffs might wish to apply for another person to be appointed as deputy solely to execute the statutory will for P, to obviate possible issues relating to the appointment of the deputies to execute the statutory will as they are also the executors and beneficiaries under the statutory will. Unlike England, Singapore does not have a system of professional deputies, who can be appointed to act for the estates of mentally incapacitated persons. On 20 February 2013, pursuant the plaintiffs’ application filed on 18 February 2013, I made an order for P’s granddaughter to execute a new statutory will for P, similar to the earlier statutory will.

13 On 19 February 2013, the Defendant appealed against all my orders.

14 In making my decision, I considered the medical evidence, my observations and assessment of P, including her oral evidence and the evidence of her family members. When P gave evidence, she was then represented by counsel.

15 Our Mental Capacity Act is substantially modelled on the English Mental Capacity Act of 2005, which came into operation on 1 October 2007.

Section 4 of the MCA provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to that matter because of an impairment of, or a disturbance in the functioning of the mind or brain. The parties and medical experts agree that P has mild dementia, which is an impairment of or a disturbance in the functioning of the mind or brain

16 Section 5 of the MCA sets out the test for determining whether a person is unable to make a decision in relation to a matter and thereby lacks capacity for that matter. A person is unable to make a decision if he is unable to: i) understand the information relevant to the decision; ii) retain that information; iii) use or weigh that information as part of the process of making the decision; or iv) communicate his decision. A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make that decision.

17 There is no issue with P’s capacity to communicate. The issue is whether she is able to understand relevant information, retain that information long enough for her to be able to use and weigh that information in her decision.

18 On 19 July 2010, by agreement of parties, I made an interim order to appoint two independent medical experts to assess P’s capacity. I directed that P be provided 24-hour nursing care to obviate or minimise occasion for one party or the other to “influence” or “coach” P before the medical examination. Plaintiffs and Defendant were to share the costs 50:50. Parties agreed to appoint Dr Calvin Fones, a consultant psychiatrist and Dr Chan Kin Ming, a geriatrician. This order was made without my knowing or the Plaintiffs’ knowing that there had been an earlier doctors’ report provided to the Defendant on 24 May 2010.

19 When the Defendant took P and the maid to Chinatown on 3 March 2010, she told the maid during lunch to go shopping and return later. On her return, the maid noticed ink marks on P’s thumb and told this to the 1st Plaintiff and also that a Dr Edward Foo, a surgeon, had visited P that afternoon. Dr Foo also provided a letter dated 5 March 2010, that P was competent to make a will. When cross-examined, Dr Foo said that he was primarily a surgeon, not P’s primary doctor and he treated her only for acute illnesses such as a foot ulcer or when her primary doctor was not available. He did not conduct a detailed assessment of her mental capacity and would have opted out if there was a legal dispute. He confirmed that P’s primary doctor had recorded on 28 May 2009, that P had multi-infarct dementia. He described this as one, where there could be multiple small strokes, not big enough to cause paralysis but enough to affect judgment and intellectual capacity.

20 This execution of the 3 March 2010 will started a sequence of events leading to:

i) the 1st Plaintiff taking P on 11 March 2010 to see a geriatrician at Raffles Hospital;

ii) the Defendant taking P on 15 and 29 March 2010 to see a psychiatrist and psychologist at the SGH;

iii) A visit by P on 1 April 2010 to an SGH psychologist;

iv) The Plaintiffs filing their application on 24 April 2010, under the MCA for a declaration on P’s capacity and for an order for them to be appointed as P’s deputies;

v) A visit by P on 14 May 2010 to an SGH Senior Consultant Psychiatrist and Head, Psychiatrist Department, Dr Ng Beng Yeong; and

vi) The issue of a 20 May 2010 report by the SGH doctor in (v) above that P had moderate to severe dementia.

i) Although the Defendant had in her possession the 20 May 2010 medical report by Dr Ng, stating that P had moderate to severe dementia and that given the chronic and severe nature of her mental condition, P was not capable of managing herself or her affairs, the Defendant concealed this report. This report was not disclosed to P’s counsel, the Plaintiffs or this court until 1 April 2011. In Dr Ng’s report of 20 May 2010, he said: “Our psychologist evaluated her on 1 April 2010 and found that she had significant impairment in several domains of the brain functions including auditory and visual memory, executive functioning, attention as well as language. The neuropsychological test profile was consistent with a diagnosis of dementia. The SGH neuropsychological tests also showed that P’s ability to retain and evaluate information as part of the decision making process was severely impaired. It must also be noted that Dr Ng had recorded in his notes of 14 May 2010, that he told the Defendant that it was the common view of three SGH specialists that P had moderate dementia. Although Defendant had Dr Ng’s report as early as 24 May 2012, she lied in her affidavit of 2 June 2010, that she had been informed by the two SGH psychiatrist and psychologist that P had mild dementia but was definitely capable of making decisions of her own accord.

21 Sometime in September or October 2010, Dr Fones repeatedly asked parties to provide the results and any reports from the SGH medical examinations, in particular any psychometric tests, including any other reports or investigations done previously for P. The Defendant did not provide this report to Dr Fones, who was led to assume that no reports had been issued by the SGH doctors.

22 First reports of independent medical experts - In Drs Fones and Chans’ first reports filed on 25 Jan 2011, they shared the view that: i) P lacked capacity to handle or manage her financial affairs; but ii) P had capacity to make decisions relating to her medical treatment or welfare, to deal with or dispose of her property and to decide who her caregivers or deputies should be.

23 Narrowing of Issues - The Plaintiffs then chose not to pursue their application relating to P’s personal welfare. The Defendant, who was then represented by counsel, agreed with the Plaintiffs that P lacked capacity to handle her financial affairs. Parties disagreed on whether P had capacity to deal with or dispose of her property, which are: i) her 50% beneficial share in Property B; and ii) her property at Property A. There was no issue with her jewellery, which was relatively small in value.

24 At the first tranche hearing on 31March 2011, the Plaintiff’s raised the 20 May 2010 medical report that they had come to know about only around 19 November 2010. It was then that P’s counsel knew of the report. The Defendant claimed legal privilege in respect of Dr Ng’s medical report, although she had no right. I reject Defendant’s claim that P did not want to produce the report. It was in Defendant’s interest to conceal Dr Ng’s report as she had taken P on 3 March 2010 to make a new will and she did not want evidence that might show that P lacked capacity to make that will. The report was produced on 1 April 2010.

24 The evidence of all the doctors is that P was not oriented to time. She had poor memory and recall of items and numbers, on which she was tested. According to Dr Fones, she was able to recall only one out of 4 numbers after 1 minute and after 3 minutes. She recalled 2 out of 3 objects after 1 minute and 3 minutes. She was unable to deduct 7 from 100 and struggled to deduct 3 from 20, albeit that she was able to do simple subtractions when given an example of a budget.

25 Faced with this 20 May 2010 report, I directed Dr Fones and Dr Chan to review their opinion. Both doctors confirmed their earlier views save that Dr Fones also confirmed in evidence that it was possible that P had moderate dementia. Dr Fones, in his report filed on 24 May 2011, said that he was of the same opinion, that P had the ability to make gifts and had testamentary capacity. She had been able to describe clearly and consistently her property holdings, which comprised the bulk of her estate. She could not state the approximate value of the properties. She was fully aware of the shares she had in each of the properties and who the other owners of Property B were. She was aware of having bank accounts but was unable to state the exact amount and which banks had her deposits. She was able to state accurately her potential beneficiaries including her children and siblings. She had testamentary capacity.

26 Dr Fones was of the view that P did not have the capacity to manage her financial affairs as she had never managed financial affairs beyond a marketing budget given by her late husband. Whilst she still understood and appreciated the price of vegetables and meat and was able to do simple calculations for payment of such purchases, it was obvious that she had little understanding of how to do financial transactions like banking procedures or transactions involving large sums of money. P had explained that in recent years, she had trusted her daughters to assist her and that she intended to continue to ask for their help for substantial financial transactions.

27 Dr Chan, in his first report filed Jan 2011, said that he saw P on 3 and 17 September 2010. She was able to recall setting up joint account with the Defendant but did not know the amount in the account or name of bank but knew it was in the Siglap area. She was unable to tell or estimate the value of 5 or 8 Frankel Drive, although she said that both were worth a lot of money. She said that Property B was worth more than Property A because the former was a double storey building whilst the latter was a single storey building. She was able to subtract $3 from $20 but not $3 from $17.

28 Both Drs Fones and Chan agreed that P did not know the value of her two properties, how many bank accounts she had, the banks involved or the money in the accounts. She could not gauge the value of her properties and according to Dr Fones, thought that the two properties cost the same, whilst according to Dr Chan, P told him that she thought that Property B was worth more than Property A, as the former had a two storey building whilst the latter had a single storey building. This somewhat simplistic reasoning shows that P had little or no idea of the extent or value of her assets. The medical reports of the doctors at Raffles Hospital and SGH, which were produced, confirm that P did not know the value of her properties or the money in her bank accounts.

29 When cross-examined, Dr Chan Kin Ming agreed that if P were, hypothetically, to sell her interest in her two properties and receive the sales proceeds, she would not have capacity to deal with the sales proceeds. He did not think that P could understand money relating to her expenses and she could not make a will relating to money. However property was tangible and she seemed to appreciate that better. I find this to be too fine a distinction to draw. P’s substantive wealth was locked up in her 50% share of Property B and her ownership of 8 Frankel Drive. By comparison, her cash assets were minimal in comparison. If however, her two properties were sold her cash assets would be very substantial.

30 I agree with Plaintiffs’ submission that there is an inconsistency in the Defendant agreeing that P has no capacity to deal with and manage her financial affairs amounting to around $38,000 but that P has capacity to deal with and dispose of her estate and interest in the two properties, which are worth many more times her liquid cash assets. To be able to make a decision on what to do with an asset, for example, whether to sell or give, a person would need to know and be aware of the extent and value of what she has and what she can choose to sell or give away to a potential pool of beneficiaries. It would be anomalous to say that P has the capability to give away her property or choose to sell her property but not the capability to decide what to do with the sale proceeds, if she chooses to sell her property. For P to decide what to do with Property B and Property A, she would need to know the value of these two properties to understand the financial implications of her decision whether it be to give away a property during her lifetime or by will or to sell a property and give the sales proceeds in her lifetime or in her will and to decide on the beneficiaries and their shares.

31 P’ evidence in court raised issues on her memory and her capacity to understand dealings with her property and assets.

32 Withdrawal of monies from P’s bank account – I start first with issues relating to P’s memory. P, in her oral evidence on 1 April 2011, said she had withdrawn monies from her UOB Time Deposit Account held jointly with 1st Plaintiff – just a little bit of money not much and not more than $10, 000. She thought that there was still some money left. In fact, she had, with Defendant’s assistance, withdrawn the entire sum from this joint bank account to deposit into another UOB and thence to a POSB account opened jointly with the Defendant. The moneys in the POSB account were subsequently depleted. P could not remember the substance of the transaction.

33 Sale of Property A - Dr Chan said that P had told him that she did not want to sell Property A although her son, H wanted her to sell and she had received an offer. P’s recollection is not correct. I accept H’s evidence that sometime in 2009, when the Defendant called to tell him that P wanted to sell Property A, he met them. P was confused and unsure. When P said that she wanted to sell Property B, he clarified where she wanted to stay; whereupon when she replied Property B, he then explained that she should sell Property A. P then said that Property A be sold. The Defendant was always present when he spoke to P. The Defendant would constantly interrupt whenever he asked P anything during the meetings, and she would answer for or instruct P what to say. P would then repeat the answers. After finding a potential buyer, he spoke to P and Defendant on the distribution of the sale proceeds. P said she wanted to distribute the sale proceeds equally to her children. A few weeks later, when Defendant told him that P did not want all her children to share in the sale proceeds, he did not believe her because P had, all along, expressed her intention to share her property equally amongst her children. Shortly thereafter, Defendant told him to abort the sale as P did not want to sell because her children did not need the money.

34 Rental Document - P was not able to recognise or remember a document that the Defendant alleged that P had signed in December 2007 in the presence of a lawyer, waiving payment by Defendant of a monthly $2,000 rent for Property A. P should have been able to remember this, as P had alleged to the doctors, who examined her, that the Defendant had been paying her rent, which the 1st Plaintiff had taken away.

35 Wills - She could not recall what was in her 1996 will. She gave different accounts to the SGH doctors and the two independent medical experts on to whom she wished to leave Property A.

36 Other matters - P was not able to remember when she had converted to Christianity and did not think that it was different from her original beliefs, when she would pray before two altars at home, one with a deity in her kitchen and another altar for her husband and ancestors in her dining room. On her conversion, she said: “It does not mean anything,” “My daughter BHS (Defendant), since she is a Christian and I followed her.” Although not correct, she maintained in evidence that only the Defendant had paid for the household and her expenses. She could not remember holidays taken with her children and a recent visit to one of the doctors. P could not give any reason why she could not trust her children, simply that they had not visited her. Whilst this would have been true for Chinese New Year 2011 and 2012, when the children had difficulty in doing so, it was clearly not true for Chinese New Year 2010, as there are photographs of their visit with the grandchildren.

37 One of P’s son–in-laws said that P did not recognise him. This is consistent with Dr Ng’s medical report of 20 May 2010, that P’s daughters (Defendant and another daughter) had told him that P had memory deficits and difficulties in recognising her family members over 2-3 years. She also required assistance in activities of daily living such as eating and bathing.

38 P’s family members also gave evidence, that whilst in earlier days, P delighted in betting on 4 Digit numbers which she would get from car licence numbers of her children and their friends and in checking the numbers on television, she lost this ability later. She was wheel-chair bound from 2007, was unable to differentiate between night and day and was not able to remember if she had eaten, even though she had just had a meal. Around the period in May 2009, when her doctor had recorded that she had multi-infarct dementia, she had hallucinations and screamed at night.

39 Their evidence was that P, from being a strong family matriarch, who ran the family with a stern hand brooking no nonsense from family members and the Defendant, had been reduced to a frail elderly person, subject to manipulation by Defendant. One of P’s granddaughters recounted the events one day, when Defendant, after an argument with P, had left P at a clinic to find her own way home. When P came home by taxi later, she was very upset and gave instructions for the keys of the family car to be removed and not to allow Defendant to drive the car. Family members had also financially supported P, contrary to assertions by P and Defendant.

40 I would discount the evidence of P’s two sisters. One sister said that she did not know why she was in court and that the Defendant had asked her to come. In essence, they repeated what would seem to be prepared answers to questions posed by the Defendant to elicit such answers.

41 In weighing Dr Fones’ and Dr Chan’s evidence, I considered the information they had and the context. They did not have before them information and evidence placed before this court in the form of Ps oral evidence and the evidence of family members. P’s memory of events is poor. This coupled with her lack of knowledge and understanding on the extent of her assets especially the value of her two properties at Property B and Property A, render her unable to understand relevant information and use and weigh relevant information in deciding on the disposition of her assets.

42 In the case of Richmond and Richmond (1914) 111 TLR 273 at 274 , Neville J states that the loss of immediate memory is in itself a fact which broadly speaking must disable the person so afflicted from properly conducting his or her own affairs:

“In my opinion, the mere fact that the immediate memory is lost is in itself a fact which broadly speaking must disable the person so afflicted from properly conducting his or her own affairs. It is a question of whether the patient can be made to understand the nature of the act which he or she is asked to do.

Her memory being a blank as to what happened yesterday and the day before, how can such a person exercise judgment upon an affair which is placed before her ? If that were to be held compatible with the conduct of business in the ordinary sense, a person might sell the same estate day after day for a month and might and would continually repeat the operation because on each occasion he or she would be entirely ignorant from forgetfulness of having done the same thing before.”

43 Paragraph 4-010 of Heywood and Massey further states:

“ Retention of the relevant information can only be established if it can be recalled. This is particularly important for those with a degenerative mental condition such as dementia.”

44 The degree of the patient’s ability to recall information is correlated to the magnitude of the decision to be made relying on that information. Jones at page 27 of the Mental Capacity Manual stresses that the more significant the decision to be made, the longer the necessary information must be retained:

“The person must be able to retain the information for the time that it takes to make the decision. Most decisions will therefore require the information to be retained for a brief period only. Significant or difficult decisions might require the person to retain the information over a number of days before the decision is made.”

45 While the first case deals with immediate memory, the principles are no less applicable to deficits in memory in general.

46 The evidence shows that P is unable to recollect events or evaluate matters and make decisions relating to her property. She is also unable to recall past care and contribution from her other children as well as her misperception that Defendant pays for all of her expenses intrudes upon P’s power of insight, judgement and decision making. Applying the test laid out in the MCA, I declared that P lacks capacity to handle her property and affairs, including her financial affairs and the disposition of her assets.

47 The Defendant had, on 19 September 2012, given the court an application for the court to appoint her as deputy instead of the Plaintiffs, in the event the Court finds that P lacks capacity to handle her property and affairs. This application was not in the Electronic Filing System or served on the Plaintiffs. I nonetheless deal with the issue of the Defendant’s conduct and behaviour and her suitability to be appointed deputy as it also relates to why I made an order for the execution of a statutory will for P.

48 Appointment of the Plaintiffs as co-deputies - I appointed the Plaintiff’s as co-deputies to act jointly for P in her property and affairs (including her financial affairs). They were clearly best suited.

49 P had trusted the Plaintiffs to act responsibly as Administrators of her late husband’s estate since 1986. She had opened joint bank accounts with the 1st Plaintiff in 2007 and entrusted her money to the 1st Plaintiff’, who kept the trust as was the case with P’s jewellery given to 1st Plaintiff for safe-keeping. In P’s 1996 will, she appointed the Plaintiffs her executors and trustees. There was no reason for P’s sudden change of heart beginning from 2010 towards the Plaintiffs, her other children and grandchildren, save for her lack of mental capacity and her increasing susceptibility to the Defendant’s adverse influence.

50 The deputies are to act jointly. They have no power to dispose of P’s assets. They are empowered to take possession and control of P’s assets, primarily her property at Property A and her 50% share in Property Band her bank accounts. They can renovate the properties, rent out Property A and they are to allow P to stay at Property B during her lifetime with her caregiver

51 Personal Welfare – As parties had agreed that P had capacity to decide on matters relating to medical treatment and personal welfare, including who should be her care-give, there were no arguments or submission on the issue of whether P had capacity to decide on her personal welfare. This is consistent with the evidence of Dr Chan and Dr Fones.

52 The Defendant is wholly unsuited to be P’s deputy. She has an unfortunate propensity to fabricate evidence and lie. These are some examples:

ii) P’s capacity - she lied in her 2 June 2010 affidavit on what she had been told by the SGH doctors on P’s medical condition when it was clear that she had in her possession an SGH doctor’s report with statements to the contrary;

iii) Withdrawal of monies from P’s joint account with 1st Plaintiff – the Defendant lied that a UOB Bank representative had called P on 9 March 2010 to ask if P wished to withdraw money from that account. The bank confirmed in writing to the contrary.

iv) Inability to account for use of P’s money - The Defendant said that she had used P’s money withdrawn from P’s joint account with 1st Plaintiff and deposited subsequently into a joint POSB account with the Defendant for P’s expenses. She failed to produce evidence to show that she had used the money to pay for P’s legal and other expenses. She produced receipts for many other things, such as payment for a set of tables and chairs for children, numerous boxes of pencils, disposable panties for the Defendant’s use, office chairs and meals in Indonesia, which showed that the money was used for her own expenses.

v) Abortive Sale of Property A – The Defendant said that it was her brother, H, who wanted P to sell Property A. I accept his evidence to the contrary.

vi) 2010 Chinese New Year ang pows – Contrary to Defendant’s assertion that she and P had visited the 2nd Plaintiff on 15 Feb 2010 to ask why, unlike previous years, he had not given P any ang pow money to give to her grandchildren, a tape and transcript of the conversation visit show that there was no mention of any ang pow money. 2nd Plaintiff produced 2010 pictures showing P giving ang pows, which he had prepared in advance;

vii) Document waiving rental for Property A - Defendant’s production of a document purportedly signed by P in the presence of a lawyer in December 2007, acknowledging payment of a monthly rental of $2, 000 for Property A from 1989 but waiving payment with effect from “Year 2007”, was not supported by her own payments records, that showed that she did not pay $2,000 per month but smaller amounts of $1, 700 and $1, 900 over some months.

53 The Defendant does not have P’s interest at heart. She deliberately isolated P from her other children and grandchildren with intent to further her own ends. These are some of the more serious instances:

i) Defendant’s suicide threat made to P – To frighten and cower P into accepting her demands, the Defendant threatened suicide in May 2010 and reduced P to tears and despair. This was verified by one of P’s nieces. This was uncaring and callous causing P extreme distress and pain and forcing P to listen to and abide by Defendant’s demands. Dr Fones had said that if the Defendant excluded other family members from access to P, this would increase P’s reliance on the Defendant and lead P to believe that the other family members did not and would not care for her. From 1 April 2010, Defendant had moved into P’s room and physically locked P’s door at night to prevent other family members from seeing her;

ii) Campaign of intimidation against her siblings to isolate P , after leading P to believe that her other children did not care for her. Family members including Defendant’s sister-in-law and the latter’s daughter (Defendant’s niece) gave evidence of P’s remarks to them and her distortion of facts, showing Defendant to be mean spirited. Her niece gave evidence of the Defendant telling her when she was a teenager, that she was not wanted by her parents, thereby causing a rift with her parents. I accept the evidence of P’s other children, that to drive the 1st Plaintiff and F and his family from Property B, she resorted to shabby acts such as hiding bamboo poles so that they could not hang up their clothes to dry and locking up the refrigerator and kitchen door. She would stalk some family members in her car – all acts calculated to instil fear and drive them out of the house. She installed a close circuit camera system in the hall and in P’s room so she could monitor P’s actions. Essentially, she drove away her siblings and isolated P so that P was forced to completely rely on her.

iii) Abortive Attempt on or around 29 February 2012 to withdraw further moneys from P’s joint bank account with 1st Plaintiff - Defendant’s attempts to procure P to withdraw further sums of money from P’s joint bank account were foiled when the bank called 1st Plaintiff. Defendant admitted that she had accompanied P to the bank. This particularly serious as Defendant had conceded in court in April 2011, that P did not have capacity to handle her financial affairs;

iv) Abortive visit to see P - Although Defendant had agreed at a mediation on 31 January 2012 not to obstruct her siblings and their children from seeing P every Sunday from noon to 6pm without Defendant around, she, in effect, arranged matters to frustrate the first attempted visit on 5 February 2012, when the gate and front door were padlocked with P being misled into thinking the worst of her children for seeking to exclude Defendant from their meeting; and

v) Interfered with the deployment of nurses for the 24 hour care of P before medical examination by the independent medical experts - Whilst some adjustment in the deployment of nurses can be expected, Defendant interfered so that she could have access to P in the period before the medical examination to influence and coach P. This included her demands to: i) transfer a nurse, who understood Hokkien, from the evening to morning shift, so that the night nurse would not understand Defendant’s exchanges with P; and ii) remove a nurse, who had reported to 1st Plaintiff of her difficulty in managing P because Defendant would go to P’s bedroom to whisper to P, who would then cry. This undermined the independent nursing care arrangements for P.

54 The defendant is intellectually intelligent. Although she would seem able to keep meticulous records to produce when she wanted, she consistently failed to produce documents that she said she would produce, when they proved inconvenient to her case. She did not comply with court directions to produce P’s 2010 will and documents evidencing her expenditure of P’s money (over $58,000) for P’s benefit on P’s legal expenses. She also refused to pay her share of the 24 hour nursing care expenses for P. She is strident in her approach, believing herself to be right and everyone else to be wrong. She will, without hesitation, justify her actions by dishonestly invoking P’s name and wishes without compunction.

55 I also directed that a statutory will be executed for P with the Plaintiffs to be her executors and trustees and for P’s estate to be distributed equally among her 6 children and the issue of a deceased son, following the terms of P’s 1996 will.

56 In directing that a statutory will be executed for P, I was guided by P’s best interests. I make no finding on the validity of P’s 2010 will and I deal with the circumstances surrounding the 2010 will and Defendant’s conduct and behaviour primarily to explain my decision to order a statutory will for P. I find however that P does not have testamentary capacity in that she does not have the mental capacity to make a will and she is susceptible to undue influence. The case law on statutory wills is drawn from decisions of the English courts as the MCA is substantially modelled on the English Mental Capacity Act 2005. In essence, the cases provide that consideration of the best interests of a protected person or patient is as provided for in section 6 of the MCA ^{[note: 1]} . Each case depends on its own facts. There are certain “magnectic factors” in a case which have a decisive influence on its determination. While P’s best interests would be served by giving effect to P’s wishes, best interests do not cease at the moment of death. What will live on after P’s death is his memory and for many people, it is in their best interests that they be remembered with affection by their family and as having done the right thing by their will. In some cases, it can be the “right thing” in a protected person’s best interest to order the execution of a statutory will, rather than leave him to be remembered for having bequeathed a contentious probate to his relatives and beneficiaries named in a disputed will. The English Court of Protection would not refrain, as a matter of principle, from directing the execution of a statutory will in any case, where the validity of an earlier will was in dispute. However the existence and nature of the dispute, and the ability of the Court of Protection to investigate the issues which underlie it, are clearly relevant factors to be taken into account when deciding, whether overall, it is in the protected person’s best interest to order the execution of a statutory will.

57 Section 6(1) to (7) of the MCA ^{[note: 2]} provides:

“(1) In determining for the purposes of this Ac t what is a person’s best interests, the person making the determination must not make it merely on the basis of –

(a) The person’s age or appearance;

(b) A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the steps specified in subsections (3) to (8).

(3) He must consider –

(a) Whether it is likely that the person will at some time have capacity in relation to the matter in question; and

(b) If it appears likely that he will, when that is likely to be.

(4) He must, so far as is reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment, he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) Where the determination relates to the disposition or settlement of the person’s property, he must be motivated by a desire to ensures, so far as is reasonably practicable, that the person’s property is preserved for application towards the costs of the person’s maintenance during his life.

(7) He must consider, so far as is reasonably ascertainable –

(a) The person’s past and present wishes and feelings (and in particular, any relevant written statement made by him when he had capacity);

(b) The beliefs and values that would be likely to influence his decision if he had capacity; and

(c) The other factors, that he would be likely to consider if he were able to do so.

(8) He must take into account, if it is practicable and appropriate to consult them, the views of –

(a) Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;

(b) Any done of a lasting power of attorney granted by the person; and

(c) Any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (7). “

58 In re M (Statutory Will) [2009] EWHC 2525 (Fam), Munby J directed that a statutory will be made. M was a childless widow, who had lived under the care Z and his family. During that time, she executed a will in favour of Z and also transferred to Z very significant sums of money, being substantially the whole of her savings and capital with the exception of her house. Despite court orders, Z failed to give a full and proper accounting of what had become of the moneys, The court then removed M from Z’s care and authorised Ps deputy to start proceedings to recover M’s money.

59 The statutory will, in effect, reinstated M’s 2001will, that provided for a pecuniary legacy for a neighbour with the residue to be left to 9 charities. Munby J outlined the “magnectic factors” why Z should be excluded from benefitting from M’s will, notably: i) the change in circumstances since the execution of the 2004 will by M done in the expectation that she would continue to stay with Z; ii) the sums of money already transferred by M to Z and the propriety of his receiving such funds; iii) the serious findings he had made against Z’s conduct and Z’s failure to comply with his court order to account for the use of M’s money. He referred to “Z’ s defiance of court orders and “ prevarication, obfuscation and time-wasting delay”. He said: “How can it possibly be in M’s best interests to make testamentary provision for someone who has shown himself so unwilling or so unable to act for her best interests and who has acted in defiance of orders of the court made for her protection and in furtherance of her best interests ?” In explaining the factors he took into account, he said:

(32) .......(1) The first is that the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s “best interests”. (2) The second is that the weight to be attached to the various factors will, inevitably, differ depending on the individual circumstances of the particular case. A feature or factor, which in one case may carry great, possibly even preponderant weight may in another, superficially similar, case carry much less, or even very little weight. (3) The third, following on from the others, is that there may, in the particular case, be one or more features or factors which as Thorpe LJ had frequently put it, are of “magnectic importance” in influencing or determining the outcome: see, for example Crossley v Crossley [2008] 1 FLR 1467, para 15 (contrasting the peripheral factors in the case with the “factor of magnectic importance”) and White v White [1998] EWCA Civ 1046; [1999] Fam 304 (affirmed[2000] UKHL 54; , [2001] 1 AC 596), where he said at p 314:

“ Although there is no ranking of the criteria to be found in the statute, there is as it were a magnetism that draws the individual case to attach to one, two, or several factors as having a decisive influence on its determination. “

Now that was said in the context of section 25 of the Matrimonial Causes Act 1973 but the principle, as it seems to me, is of more general application. “

(36) I add only one point, which is perhaps obvious but may bear emphasis. Material which falls outside the defined provisions of section 4(6) and 4(7) of the 2005 Act does not on that ground alone fall out of account altogether, for it may, notwithstanding that it does not precisely fit within the language of section 4(6) and 4(7), still be a “relevant circumstance” within the meaning of section 4(2).

60 Munby J then went on to say “Best Interests do not cease at the moment of death.” and that he agreed with everything Lewison J said on the topic of P’s best interests in In re P (Statutory Will) [2010] Ch 33 at para 44:

“There is one other aspect of the “best interests” test that I must consider. In deciding what provision should be made in a will to be executed on P’s behalf and which ex-hypothesi, will only have effect after he is dead, what are P’s best interests ? Mr Boyle stressed the principle of adult autonomy; and said that P’s best interests would be served simply by giving effect to his wishes. That is, I think, part of the overall picture, and an important one at that. But what will live on after P’s death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done the right thing by their will. In my judgment, the decision maker is entitled to take into account, in assessing what is in P’s best interest, how he will be remembered after his death.”

61 In the case of In re D (Statutory Will) [2010} EWHC 2159 Ch, D, an elderly widow, had made a will in 1995 giving the bulk of her estate equally to her 3 children. In 2004, she made a second will leaving her entire estate to her younger daughter. In 2006, she made a third will dividing her estate equally between her younger daughter and son. The elder daughter applied to the Court of Protection for an order for a deputy to make a statutory will for P. By then, D’s 3 children had agreed on the execution of a statutory will dividing her estate among them equally. In ordering for a statutory will for equal division, Judge Hodge QC took into account that the time of his decision, D lacked testamentary capacity with no prospect that she would have such capacity in future; the terms of her 1995 will afforded a clear, coherent, rational, sensible, responsible and realisable expression of her then wishes, which were maintained until after she suffered her stroke in 2003, which was then followed by the 2004 and 2006 wills, that the 2006 will was made without involvement of a lawyer and there was no question of D’s commitment to all three of her children prior to the deterioration of her mental faculties. He said:

“The applicable law

12. I am satisfied on the evidence that D lacks testamentary capacity. Whilst all relevant parties consent to the terms of the proposed statutory will, that cannot be conclusive because the execution of a will for a protected person is a decision that must be made by the court itself, and cannot be entrusted to a deputy: see section 20(3)(b). In determining whether to order the execution of a statutory will for and on behalf of a person, who lacks capacity, the court must act in that person’s “best interests”: see section 1(5). That concept is explained in section 4, which requires the court to consider all the relevant circumstances and in particular, to apply a structured decision-making process. The court is required to consider, so far as is reasonably ascertainable, (a) the protected past and present wishes and feelings (and in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity and (c) the other factors that he would be likely to consider if he were able to do so. The court must also take into account, if it is practicable and appropriate to consult them, the views of (amongst others) anyone engaged in caring for the person or interested in his welfare, and any deputy appointed for the person by the court, as to what would be in the person’s best interests.”

(16) ............Like Lewison J in In re P [2010] Ch 33 para 41, I would prefer not to speak in terms of presumptions. Under section 4(6)(a), one of the relevant factors to be considered by the court in determining the protected person’s best interests are that person’s past and present wishes and feelings (and in particular, any relevant written statement made by him, when he had capacity), A previous will is obviously a relevant written statement which falls to be taken into account by the court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made when the protected person lacked capacity, no weight at all should be accorded to it. Moreover Parliament has rejected the “substituted judgment” test in favour of the objective test as to what would be in the protected person’s best interests. Given the importance attached by the court to the protected person being remembered for having done the “right thing” by his will, it is open to the court, in an appropriate case, to decide that the “right thing” to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and beneficiaries named in a disputed will. I therefore hold that the Court of Protection should not refrain, as a matter of principle, from directing the execution of a statutory will in any case, where the validity of an earlier will is in dispute. However the existence and nature of the dispute, and the ability of the Court of Protection to investigate the issues which underlie it, are clearly relevant factors to be taken into account when deciding, whether, overall, it is in the protected person’s best interests to order the execution of a statutory will. “

62 It is also useful to note the case of Re: Davey [1981] WLR 164, a pre- Mental Capacity Act 2005 case decided by the Court of Protection under section 103(1) the Mental Health Act 1959 as added by section 17(1) of the Administration of Justice Act 1969. A 92 year old patient entered a private nursing home in June 1979, made a will in September leaving her estate to beneficiaries, who were relatives by blood with one exception. In October, unknown to her relatives, she married a 48 year old employee at the nursing home. In December, the Official Solicitor, who had been appointed receiver of the patient’s assets, applied to court for a statutory will to be made for P in terms similar to the September 1979 will, that had been revoked upon her marriage. In an appeal against the order of the Deputy Master of the Court of Protection for the execution of that statutory will, Fox J ruled that the deputy master had jurisdiction to make the order because he had reason to believe that the patient was incapable of making a valid will. The order right or wrong was not a nullity. As the patient had died (she died a few days after the order and execution of the will), the will was irrevocable. The powers of the Court of Protection would end on a patient’s death. If he had jurisdiction to entertain the appeal, he would not interfere with the deputy master’s conclusion on the case, which was a sensible and fair conclusion reached in exceptional and difficult circumstances.

63 I decided that it was in the best interests of P to order for a statutory will be executed in terms similar to P’s 1996 will, which divided her estate equally among her 6 children and the issue of a deceased son. It was clear to me that when I decided this case that she lacked testamentary capacity. My main reasons are as follows:

(i) P had stated in her oral evidence on 1 April 2011, that she wanted to treat all her children equally and that if she were to make a will, she would ensure that her children were treated equally. I see no reason to doubt her wish;

(ii) P’s 1996 will provided for the equal distribution of her assets among her 6 children and the issue of a deceased son, whilst Defendant’s evidence is that under P’s 2010 will, Defendant is likely to benefit substantially at the expense of her siblings. Given the potential risk of undue influence of P by Defendant and existence of a 1996 will that provides for equal distribution to her children, any departure from an equal distribution of P’s assets to her children is a decision to be examined carefully;

(iii) The execution of P’s 2010 will was arranged by Defendant, who took P to a lawyer. This is a classic oft-cited example of suspicious circumstances, where a party, who stands to benefit under a will, procures the execution of that will under furtive and clandestine circumstances, by taking the testator to see a lawyer to sign a will, whilst taking care that no one in the family should know;

(iv) P’s sudden change of heart in 2010 to benefit Defendant in her will to the detriment of P’s other children cannot be explained other than in terms of Defendant’s undue influence of P. In her oral evidence, P could not give any reason for no longer trusting her other children other than that they had not visited her for Chinese New Year. This was not true for 2010. This arose because of misinformation from Defendant arising out of P’s increasing isolation from other family members;

(v) Defendant’s conduct, albeit subsequent to the execution of the 2010 will, in threatening to commit suicide knowing full well the pain and distress caused to P, which was done selfishly and callously to secure P’s acquiescence to Defendant’s demands and wishes;

(vi) Defendant’s withdrawal of P’s money (over $58,000) and Defendant’s failure, despite her own statement that she had used the money for P’s expenses including paying P’s legal expenses, to produce documentary proof especially of the latter;

(vii) Defendant’s failure to comply with court orders and directions to produce the 2010 will, the documents evidencing payment of P’s legal expenses from P’s money, which Defendant procured P to withdraw and to produce her Notices of Assessment of Income Tax for the last two years

Context

^{[note: 1]} Section 4 of the English Mental Capacity Act 2005, which came into effect on 1 October 2007

^{[note: 2]} In pari material with section 4(1) to (7) of the English Mental Capacity Act 2005, which came into effect on 1 October 2007

Context