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Collars Muriel Esther de Jesus and Another v Sandra Audrey Jude Collars
[2008] SGHC 110
| Case Number | : | |
| Decision Date | : | 11 July 2008 |
| Tribunal/Court | : | |
| Coram | : | Judith Prakash J |
| Counsel Name(s) | : | Peter Madhavan and Parveen Kaur Nagpal (Madhavan Partnership) for the plaintiffs; Chandra Mohan s/o K Nair (Tan Rajah & Cheah) for the defendant |
| Parties | : | Collars Muriel Esther de Jesus; Collars Marina Bernardette Das Dores Alias Marina Bernardette Das Dores Collars — Sandra Audrey Jude Collars |
|
11 July 2008 |
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Introduction
1 The late Mrs Maria Dolores Figureireo Collars (“the deceased”) died on 19 October 2001. She left behind a substantial estate and a number of grown up children to dispute over how it should be divided. The plaintiffs and the defendant in these proceedings are three of the deceased’s daughters. The plaintiffs are also the executrices and trustees named in the will of the deceased. In March 2002, they were granted probate of the will.
2 By the terms of the will which was made on 1 January 1984, the deceased devised and bequeathed her real and personal property to the plaintiffs and the defendant in equal shares. She did not provide for her three other children. One of these children, Ms Collars Maria Leonor Charlotte Das Dores, subsequently challenged the will and brought a suit in the District Court (DC Suit 5031 of 2002) against the plaintiffs. This suit was settled between the parties thereto in March 2004. Thus, by the time of these proceedings, the validity of the will was not in issue.
3 These proceedings concerned the distribution of funds held in an account with Lombard North Central PLC (which uses the business name “Lombard Banking Services”) (“the Bank”) known as Fixed Account No. 11XXXXXX (“the Lombard account”). The issue was whether the funds in the Lombard account formed part of the estate of the deceased and therefore had to be distributed between the three beneficiaries or whether they belonged to the plaintiffs to the exclusion of the defendant. I decided this issue in favour of the plaintiffs and the defendant has now appealed.
Background
4 In March 1983, the deceased opened a fixed time deposit account with the Bank (account no. 10XXXXXX) (“the first account”) on the basis that the funds in the account could be withdrawn upon giving six months notice. The named account holders were the deceased, the first plaintiff, the second plaintiff and the defendant. Although there were four account holders, it was not disputed that all the funds in the account had been provided by the deceased. In the account opening form, the signing instructions specified that the Bank was authorised “to pay any money, now or hereafter standing to the credit of the deposit account in my/our names including all interest or income thereon to or to the order of … any one of us …”. It was also provided that the correspondence address for the account would be No. 1 Lengkok Merak, Singapore (“the Lengkok property”) which was the deceased’s home and address. The terms of the first account provided for the application of the right of survivorship.
5 The deceased executed her last will and testament some months later. Apart from the bequest to the three beneficiaries that I have mentioned above, the will contained the following important clause:
I hereby declare that monetary savings belonging to me are in Bank Account with my name as the first Titular. The name of the second Titular is only to facilitate the transactions. I also declare that my name as a second Titular in any Bank Accounts (sic) is only to facilitate the transactions and the money belongs exclusively to the first Titular of the respective Bank Accounts.
6 In February 2001, the deceased decided to make some changes in the first account. By that time, the defendant was living and working in Richmond, British Columbia, Canada and had become a Canadian citizen. The deceased was still living in Singapore at the Lengkok property and the plaintiffs were residing with her.
7 On February 26, 2001, the deceased wrote to the Bank and asked it to close the first account and transfer the proceeds to a new two year Sterling Premier Account paying a gross interest of 4.5% per annum. She asked that the new account be designated as “Mrs M.D.F. Collars & Others”. The account established pursuant to these instructions was the Lombard account. Attached to her letter were two completed forms, the “Application Form” and the “Not Ordinarily Resident Declaration Form”. The Application Form gave the names of the proposed joint account holders and the names given were those of the deceased and the two plaintiffs. The defendant’s name was not included. The deceased and the two plaintiffs signed the Application Form and the signing instructions contained in the Form were that payment orders could be given by any one of the account holders and any one of the account holders would also be able to receive the funds in the Lombard account. It also provided that as a joint account the funds in the Lombard account were to be paid to the surviving party or parties to the account.
8 On 6 March 2001, the Bank acknowledged receipt of the deceased’s letter of 26 February and confirmed that the existing account had been closed and that the funds from it had been placed in the Lombard account (the attached statement of account showed that the credit balance of the Lombard account was £149,651.65). The letter went on to say:
I note from our records that the above account [ie the first account] was in four names. However I note from the completed forms, the name of Sandra Collars is not included. I shall therefore be grateful for your confirmation whether her name should be included or deleted. If her name should be on the account, I will require the completion of the enclosed joint mandate, by all parties, and a new declaration form showing all four names, which can be signed by yourself. However if her name is to be deleted, I will require her written confirmation to that effect.
9 On 2 April 2001, the first plaintiff wrote to the defendant and informed her that the deceased had asked the Bank to close the first account. She stated that because of banking policy, the defendant’s signature was required to confirm the closure. Attached to her letter was a draft letter for the defendant to sign which could be returned to the Bank. The defendant did not sign the draft as requested. Instead, in a telephone conversation with the plaintiffs, she expressed doubts over the conduct of the closure of the first account and wrote directly to the Bank for clarification. On 30 April 2001, the plaintiffs wrote to her again saying that the closure of the first account had been delayed and asking her to write to them if she had doubts.
10 On 4 June 2001, the Bank wrote to the deceased and the other account holders and stated that the first account had been closed but the Lombard account had been opened in all four names as they required confirmation from the defendant before they were able to remove her name from the account. The situation was that the Bank was still awaiting such written confirmation and would remove the defendant’s name immediately upon receipt of her written instructions. The deceased replied to the Bank on 14 June 2001 and, referring to a telephone conversation that she had had with one of the bank officers, confirmed her instructions to block any withdrawals from the Lombard account until further notice. On the same day, she wrote to the defendant asking her to sign the letter to the Bank confirming that the first account was to be closed. She sent a further letter addressed to the defendant giving some information that the defendant had asked for because the defendant had said that she needed to sort out the situation with the Canadian tax authorities before she could sign the account closure form.
11 The defendant did not sign the account closure form. In subsequent correspondence she informed the deceased that she needed to get advice from a lawyer and an auditor before she could do so and she also asked for a draft for CAD250 to help defray the expenses of this advice. The deceased replied that she was not willing to pay these costs as she considered that the defendant was incurring them unnecessarily when she could have obtained clarification and explanations from the deceased. The deceased attached an improved version of the letter of consent to that reply and asked the defendant to sign it. This draft read:
The Manager
LOMBARD Banking Services
UNITED KINGDOM
Dear Sir
CLOSURE OF ACCOUNT NO: 10XXXXXX
To facilitate the above Account closure, I hereby confirm my agreement. Please remove my name as a bank account signatory.
Yours faithfully
The defendant did not sign that draft although in July 2001 she wrote that she would sign a letter to the Bank “discharging my liability as one of your signatories”. At the time of the deceased’s death, no such letter had been issued.
12 Thereafter, the plaintiffs appointed the law firm of Madhavan Partnership (“MP”) to act for them in relation to the estate. On 2 April 2002, MP wrote to the Bank giving it the history of the Lombard account and asking why the Lombard account had been opened in four names when the instructions given in the account opening form were for it to be opened in three names only. The Bank then reviewed the position and rectified the Lombard account by removing the defendant’s name from it so that the Lombard account was held in only the names of the plaintiffs and the deceased. The Bank tried to notify the defendant of this change by writing to her. Unfortunately, its undated letter was sent to the Lengkok property instead of to the defendant in Canada. This letter was received by the plaintiffs on 30 August 2002. According to the defendant, the plaintiffs never sent this letter on to her. The letter stated, inter alia, that the Lombard account was no longer in the defendant’s name; that the Bank would not withhold the funds in the Lombard account from the plaintiffs; and that the defendant would not be allowed to operate the Lombard account.
13 The defendant herself appointed Messrs Ash, O’Donnell, Hibbert (“AOH”), solicitors in Canada, to advise her in connection with her rights in respect of the deceased’s estate. There was correspondence between AOH and MP with regard to the Lombard account and also the defendant’s rights in respect of the estate generally. MP also kept AOH advised of the administration of the estate from time to time and sent them various documents in that regard.
14 In October 2005, the plaintiffs as trustees of the will of the deceased made an interim cash distribution to the beneficiaries under the will in respect of the moveable properties of the estate. Each beneficiary, including the defendant, received a sum of approximately $14,790. It should be noted that a substantial sum had been paid out of the estate in order to settle DC Suit 5031 of 2002. On 21 November, MP sent AOH the trustees’ Final Report and a bank draft for the sum of CAD 5,831.88 being the final distribution of the moveable properties of the deceased. On the basis that the Lombard account did not form part of the moveable property of the deceased, all that remained to be distributed was the immoveable property ie the Lengkok property.
15 In late 2005, some negotiations took place for the purchase by the plaintiffs of the defendant’s interest in the Lengkok property. The plaintiffs claimed that an agreement was reached in this point but that in mid 2006, the defendant reneged on it. The defendant disagreed that there had been a concluded agreement. She appointed solicitors in Singapore, Messrs Tan Rajah & Cheah (“TRC”) to advise her on her rights. By letter to MP dated 26 July 2006, TRC indicated that the defendant’s position was that she was entitled to a one-third share in the Lombard account as one of the three equal beneficiaries of the estate of the deceased. Further correspondence followed but the disputes between the parties could not be resolved as the plaintiffs maintained their stand that the Lombard account did not form part of the estate.
16 On 24 April 2007, the plaintiffs filed the originating summons in these proceedings by which they asked for the court to declare:
(i) For purposes of distribution in accordance with the Last Will & Testament of Maria Dolores Figueiredo Collars dated 1 January 1984 (“the Will”), that the Lombard Banking Services Sterling Premier 2-Year Fixed Account No. 11XXXXXX (“the Account”) and the funds therein do not form part of the Estate of Mrs Collars Maria Dolores Figueiredo @ Maria Dolores Figueiredo Collars @ Mrs Maria Dolores Figueiredo Collars, deceased (“the Estate”).
(ii) That the Defendant is not a joint holder of the Account and the funds therein;
(iii) The Defendant has no right, title or interest to the Account and the funds therein, whether legal or beneficial;
(iv) The Plaintiffs, as joint holders of the Account, are legally and beneficially entitled to the funds therein in equal shares, absolutely.
The submissions
17 The plaintiffs’ submission was straightforward. The plaintiffs said that the deceased had shown by her actions in 2001 that she wanted to give the moneys in the Lombard account to the plaintiffs on her death to the exclusion of the defendant. She had therefore taken steps to close the first account and transfer the moneys to the Lombard account which she intended to be held in the names of herself and the plaintiffs only. When the Bank had made the mistake of thinking that the defendant’s consent was required for this change, the deceased had done all she could to obtain that consent.
18 Prior to her demise, the deceased and thereafter the plaintiffs, had consistently taken the position that the defendant was not a joint holder of the Lombard account. At the material time in 2001, the defendant had accepted that the deceased intended to exclude her as joint holder of the Lombard account. She stated in her letter of 12 July 2001 to the deceased that she would “sign a letter to [the Bank] discharging [her] liability as one of [the] signatories … [and that the deceased] need not fear that [she is] intending to make any claims of this or even to pocket any of the proceeds”.
19 The plaintiffs submitted that the defendant’s conduct over the years was consistent with that position. With the benefit of legal advice, the defendant had accepted the plaintiffs’ interim and final distribution of all moveable properties of the estate – including all moneys in bank accounts that fell within the estate – in October and November 2005. No objections or queries were raised by the defendant or her solicitors. It was only on 26 July 2006 that the defendant asserted that she had a one-third share in the funds in the Lombard account. The Bank itself had reviewed the position and stated equivocally on 1 October 2007 that the defendant “was never entitled to be a party to the account”.
20 The plaintiffs, while asserting that as joint holders they had legal title to the funds in the Lombard account, were at pains to show that they were also the beneficial owners of the same. The funds in the Lombard account had come solely from the deceased and they submitted that she had intended to keep the Lombard account separate from her estate and distribution in accordance with her will. She made considerable efforts, despite her deteriorating physical health at the time, to set up the account in such a manner that the funds would devolve to the joint holders only, ie the plaintiffs, and not the beneficiaries under her will, ie, the plaintiffs and the defendant. If the deceased had intended for the funds in the Lombard account to devolve to her estate and be divided between the plaintiffs and the defendant in accordance with the provisions in the will, then there would have been no need for her to go to such great length to have the defendant’s name removed from the Lombard account. The deceased took positive steps to exclude the defendant from the benefit of the funds therein.
21 The plaintiffs also submitted that their beneficial and legal interest in the funds was created during the lifetime of the deceased and vested in them at the inception of the Lombard account. The deceased had intended to make an inter vivos gift of the funds in the Lombard account to the plaintiffs.
22 The defendant in her submissions relied on the intentions of the deceased as disclosed in her will. She submitted that if the deceased had intended to exclude the defendant from the Lombard account, she could have amended the will. There was no motive or reason to exclude the defendant from the proceeds of the Lombard account.
23 The defendant made particular reference to the clause in the will dealing with the way that her bank accounts were to be construed. This clause is reproduced in [5] above. Pointing out that all the moneys in the Lombard account had come from the deceased, the defendant argued that the clause in question showed that the money in the Lombard account belonged to the estate of the deceased. The deceased’s name had been the first name or “the first titular” on the Lombard account. There was no gift to the plaintiffs from the deceased. Instead, there was a trust created in favour of the estate and therefore all the beneficiaries under the will would be equally entitled to the moneys in the Lombard account. There was no intention to give the moneys to the plaintiffs and no trust was created in favour of the plaintiffs. Nor was there a presumption of advancement in favour of the plaintiffs.
24 It was noted that the change from the first account to the Lombard account took place in February 2001, a few months before the deceased’s death and at a time when she was ill. The plaintiffs had concealed information from the defendant because although they had told her that the deceased wanted to close the first account, they did not tell her that a new account was being opened in three names only. Further, the plaintiffs had concealed the letter of August 2002 from the Bank. They had not sent it on to the defendant because they did not want her to know of the plan to exclude the defendant as an account holder.
25 It was pointed out that when the plaintiffs had prepared the estate duty affidavit in support of their application for grant of probate, they had disclosed various joint accounts which had been held in the names of the deceased and various of her children and had conceded that the funds in these accounts belonged to the estate. In respect of the Lombard account, however, they had declared that this account was jointly held in the name of both plaintiffs. They had not shown how the Lombard account differed from the other joint accounts in which the deceased’s name appeared as the first titular and therefore it should not have been treated differently. Further, the defendant contended that it was wrong to say that the account was held jointly in the name of both plaintiffs because the Bank had issued a statement of account showing that the Lombard account was held in the name of the deceased and others and had stated that this could not be changed until the deposit matured on 6 March 2003. The plaintiffs had failed to provide any evidence of the fact that they were joint holders of the Lombard account when they filed probate on 11 March 2002. The defendant asserted that the plaintiffs ought to be viewed with suspicion for making this false declaration irrespective of what transpired later.
26 The defendant drew my attention to the following statement in para 22 of the second plaintiff’s first affidavit filed on 24 April 2007:
During her lifetime, my late mother was clear in her instructions that the 1st Plaintiff and I were named as joint account holders of the DBS Account and the POSB Account solely to facilitate transactions on her behalf. The monies therein belonged to my late mother and were used towards her maintenance and medical expenses. Accordingly, upon my late mother’s demise, it was clear to both the 1st Plaintiff and I (sic) that the monies in the DBS Account and the POSB Account should devolve to her Estate.
The submission was that no distinction could be drawn between the two accounts described as the DBS Account and the POSB Account, and the Lombard account. The application form to open the Lombard account clearly indicated the deceased as the first titular and the Bank had confirmed that from the outset the deceased had been the first titular.
27 The defendant pointed out that the plaintiffs had not produced the first letter (dated 13 February 2001) which the Bank had sent to the deceased in relation to the closure of the first account. She argued that it could be assumed that the content of this letter could be related to the earning of a higher rate of interest since a new two-year Sterling Premier Account was opened by the deceased in place of the first account. If so, it could be assumed that the deceased decided to remove the defendant’s name from the new account because the defendant was no longer living in Singapore (having left in October 1993). The deceased and the plaintiffs were still living in Singapore and therefore it would be easier to maintain the account if it was only in their three names. Nowhere in the exchange of correspondence did the deceased indicate to the defendant that she would not be entitled to benefit from the money in the Lombard account. On the contrary, her only written request to the defendant was that she agreed to remove her name as a signatory to the first account in order to facilitate the closure of the first account.
28 The defendant contended that the plaintiffs were taking inconsistent stands in regard to the Lombard account and other joint accounts held by the deceased. She pointed out that the account with Westpac Bank in Australia which had been held in the joint names of the deceased and her son, Mr Cedric Collars, had been included as part of the estate of the deceased. Similarly, funds in accounts in DBS Bank and the POSB which had been held jointly by the deceased and one of the plaintiffs had been treated as part of the estate. The defendant failed to understand why, in relation to the Lombard account, the plaintiffs were not fulfilling the deceased’s wishes as set out in her will and instead were asserting that these funds belonged to them solely.
29 Another submission made by the defendant was that the plaintiffs were involved in forcing the deceased to remove the defendant’s name from the Lombard account so that they could inherit the proceeds after the death of their mother. She said “the mother’s signature … appears to be frail at the bottom of the first reminder letter dated 30 April 2001” and her condition was confirmed by the first plaintiff when she had written on 2 April 2001 that the deceased was “recovering well post-surgery”. The defendant’s reasons for making the allegation about the deceased being forced to change the account holders were that:
(a) the plaintiffs had not sent to her the undated letter from the Bank which they had received around the end of August 2002;
(b) both plaintiffs were fully aware that had the defendant received this letter at that time, she would have contested the contents of the letter with the Bank as the Bank had made it clear that the Lombard account could not be closed until it matured on its second anniversary ie 6 March 2003;
(c) the letter was only brought to the defendant’s attention when it was attached to the second plaintiff’s first affidavit in April 2007 and, as could be seen from the affidavit, the Bank had renewed the account on the maturity date to include the names of both the plaintiffs. When the defendant brought this matter up with the Bank in 2007, it was too late as the plaintiffs had withdrawn the funds in July 2005;
(d) the plaintiffs had, as already alleged, treated the Lombard account differently from the other joint accounts held by the deceased; and
(e) the last will of the deceased had clearly reflected the mother’s intention that all her properties be divided equally among the defendant and the plaintiffs and that monetary savings belonging to her were in bank accounts with her name as the first titular.
My reasons
30 In Tan Seng Pow v Tan Seng Hock
31 In this respect, there was little evidence for the defendant to go on apart from the provisions of her mother’s will. It was clear from the will that at the time it was made, the deceased wanted to reinforce her claim to all moneys which she had put into joint accounts with her children. She took the trouble to specifically declare that if she was named as the first titular in such a joint account, that would be an indication that the moneys in the account had come from her and belonged to her. The use of the word “exclusively” in this context was significant. At that time, too, there was no dichotomy between the effect of the will and the effect of the first account since whether the will or the rights of survivorship were followed, the funds in the first account would be divided among the plaintiffs and the defendant.
32 The deceased, however, had the right and ability at all times to change her mind as to how her money should be distributed. While she could have achieved any change of intention by changing her will, that was not the only course open to her. If she decided to give the plaintiffs more money than the defendant, there were other ways of doing this, for example, by making an inter vivos gift. In this case, I accepted the plaintiffs’ argument that in 2001, the deceased had decided that, after her death, only the plaintiffs should get the moneys in the Bank. She therefore took steps to close the first account and to establish the Lombard account in the names of herself and the plaintiffs only. I agree that when she opened the Lombard account and instructed that the plaintiffs should be joint holders of the account with her, it was the deceased’s intention to give the moneys in the account to the plaintiffs on her death by operation of the right of survivorship which was clearly stated as part of the mandate on the Application Form. Although she retained the right to withdraw these moneys in that it was agreed by all account holders that anyone of them could give instructions for payment out of the funds and could receive payment of the funds, by putting the moneys into the Lombard account in the three names and closing the first account which was held in four names, the deceased showed that she was making a gift to the plaintiffs, to the exclusion of the defendant.
33 It is significant that when the Bank wanted to obtain the defendant’s consent to these changes, the deceased tried her best to get the defendant to sign the letter consenting to the closure of the account. She did not tell the defendant that she was opening the Lombard account and the defendant had to find out about the new account from the Bank itself. The deceased, however, as can be seen from the account of the facts above, was insistent that the defendant agree to the closure of the first account. That insistence demonstrated her intentions with regards to the funds in the Lombard account. Additionally, when she found out that the Bank had named all four parties as holders of the Lombard account, the deceased immediately gave instructions to block withdrawals from the Lombard account. The obvious inference is that she did not want the defendant to take out that money.
34 The defendant argued that the change to the Lombard account was made to take advantage of a higher interest rate and further that the account was opened in three names only because it was no longer convenient for the defendant who was then living in Canada to continue as an account holder. Whilst the higher rate of interest offered by the Sterling Premier Account might have motivated the deceased to close the first account which was a six-month deposit account, if she only wanted to take advantage of the better interest rate, she would have opened the Lombard account in the same four names as the first account. If the deceased had not changed her mind in relation to the interest that the defendant was to have in the funds, she would have made arrangements to have the Lombard account put in the same four names. She made no effort to do this. It was not a question of convenience because she was able to write to the defendant and give her a draft of the letter that she wanted the defendant to sign to close the account. If the deceased had wanted the defendant to continue as a joint account holder, she could easily have sent the defendant a copy of the application form for the Lombard account and asked the defendant to sign it. Not only did the deceased not do this but she never at any time let on to the defendant that the moneys were going into a new fixed deposit account.
35 I noted the defendant’s arguments with respect to the wording of the will. The will was made in 1984 and it disclosed the deceased’s general intentions at that time. The deceased had taken pains to indicate that moneys in joint accounts in which she was the first titular belonged to her. That did not preclude her from forming and giving effect to an intention to benefit the other persons who jointly held an account with her. The circumstances in which the first account was closed and the Lombard account was established indicated to me such a change of intention on the part of the deceased. The fact that the deceased had other joint accounts that were treated as part of the estate could not override the circumstances that existed in regard to the Lombard account.
36 I did not find any merit in the argument that the plaintiffs were involved in forcing the deceased to remove the defendant’s name from the Lombard account. No evidence of such duress was produced. There was no evidence either that the deceased was not in full possession of her mental faculties at the time she closed the first account, opened the Lombard account and corresponded with the defendant on it. The deceased had been ill and that might have accounted for her rather wavery signature but no evidence has been produced that her illness impaired her mental faculties. It is not good enough for the defendant to complain that the plaintiffs did not produce the deceased’s medical records. She would have to produce some evidence to support her allegation and without any such evidence, her allegations were bare and could not be considered.
37 Whilst the plaintiffs should have forwarded the letter from the Bank to the defendant at the time they received it in August 2002, their failure to do so could not affect the outcome of this case. By the time the Bank wrote that letter, the relevant events had all occurred and the interest of the plaintiffs in the Lombard account had been long established. The letter could not have changed the legal position. The Bank itself realised that it had made a mistake initially and put the Lombard account in the plaintiffs’ names even though it never received any consent from the defendant. That was the correct course as the mandate for the first account was that any one of the account holders could operate the account. If the Bank had simply acted on the deceased’s instructions at the very beginning without asking for a consent letter from the defendant, a lot of trouble could have been avoided.
Conclusion
38 I concluded that the defendant had not been able to discharge the burden on her to prove that the deceased did not intend the plaintiffs to receive the money to the exclusion of her estate by virtue of the operation of the right of survivorship. I was also satisfied that the circumstances of the case showed a positive intention on the part of the deceased to give the moneys in the Lombard account to the plaintiffs. I therefore made an order in terms of prayer 1 of the plaintiffs’ summons. I also ordered the defendant to pay the plaintiffs costs of the application fixed at $8,500 plus disbursements.
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This judgment text has undergone conversion so that it is mobile and web-friendly. This may have created formatting or alignment issues. Please refer to the PDF copy for a print-friendly version.
Version No 0: 11 Jul 2008 (00:00 hrs)