When a ‘mysterious’ new will is used to claim a million-dollar inheritance

There have been some epic court battles here, but the most dramatic was surely when the key witness in a million-dollar inheritance fight broke down in tears and confessed in court that his testimony had been written entirely by a lawyer.

The man, a driver for his late employer, and his Malaysian lawyer both claimed to have witnessed the employer signing a new will that effectively disinherited his three children and gave everything to two grandchildren instead.

But the driver’s confession that he was “parroting” the lawyer cast serious doubt on the validity of the new will, which “mysteriously surfaced” after the businessman died.

The man, a divorcee who moved to Johor in December 2017 before he died in 2019, made a will in May 2017 that distributed his wealth equally to his two daughters and son. He also nominated that his Central Provident Fund (CPF) monies were to be shared by his three children.

So when the new will – supposedly made in the same month that he moved to Johor – was produced after his death, the son cried foul because only his elder sister would gain from it as her two children were named as the new beneficiaries.

He sued his elder sister and her “good friend”, a former administrative employee of the family business. This friend had lived with and cared for their father in Johor, and was also involved in the making of the new will.

The son challenged the new will “at every turn” as it was riddled with controversies.

For instance, the main witness, the driver who claimed to have driven his late employer to make the will in Johor, raised eyebrows in court by being unable to identify his late employer’s three children and their mother.

His account about accompanying his employer to the lawyer’s office many times also did not gel with the account of another driver, who said he had never once driven their employer to see the lawyer.

The driver’s nervousness under questioning eventually gave way – he broke down in tears and admitted he was testifying based on a statement that the Malaysian lawyer had drafted entirely.

Not surprisingly, the new will was ruled invalid by District Judge Shobha Nair, who “was openly critical of the lawyer’s conduct” in respect of the will, his connections with the defence witnesses, and his testimony that he did not even have a copy of the will.

When Justice Choo Han Teck, the High Court judge, heard the appeal, he agreed entirely with Judge Nair that a lawyer who drafted a will for his client was expected to retain a signed copy.

“This lawyer did not, and seems unable to account for this oversight, if indeed it was an oversight,” Justice Choo said, noting that the lawyer also ought to have known better than to draft the statement for his fellow witness.

“Had the lawyer been a lawyer in Singapore, he would have been reported to the Law Society of Singapore for disciplinary investigation,” he said.

In dismissing the elder sister’s case on the new will, Justice Choo made four observations on the dos and don’ts of legacy planning.

Will must be genuine

Just because there is a new will does not mean it must be upheld because it is the last in line.

The court must still be satisfied that it is properly signed and attested to by at least two people who are not beneficiaries.

More importantly, the testator, or the maker of the will, must be of sound mind at the time the will is made.

The court must also be satisfied that the will is indeed that of the testator. The onus of proving this and that it was properly made lies with the party wishing to prove its validity. In this case, that would be the elder sister as her family stood to gain from the new will.

Reason for the will

The sister’s good friend claimed that the late businessman made a new will because he was upset his son had stolen the title deeds of his properties – a fact disputed by the son.

But Justice Choo noted that even if this was true, there was no reason for the elderly man to disinherit his two daughters.

He added that the friend’s evidence betrayed the lie that the businessman had changed his will because he was upset and was bent on not giving a cent to his son. If so, the judge questioned why the man left his CPF nomination intact because doing so would allow the son to own a third of the money there.

The elder sister sought to tell another story – that it was “not remarkable” for her father to leave everything to her two children because he was close to them.

If so, this could not explain why the doting grandfather left both the children’s names out of his original will, which was made just seven months before the new one.

The parties’ conduct

While some people may think it is easy to spin stories to support their case, getting a judge to believe them is a different story altogether.

For instance, the trial judge did not believe the friend’s evidence that she had told the elder sister about the existence of the new will only after the businessman died.

If this was true, it meant that the new will was drawn up and signed in the presence of the driver, the friend and the lawyer without anyone in the family knowing about it.

Justice Choo noted the trial judge was perplexed by some of the actions of the elder sister that “seemed obviously incongruous with the conduct of an honest person”. He said that when he examined the case carefully, the evidence seemed to suggest that the story and circumstances of the new will were created by her.

Her story, the judge said, had gaps that “yearned for explanations that never came”. For example, why did she apply for the grant of probate for the original will when she already knew of the existence of the new one?

After having obtained such an order, she then chose not to proceed with it. Her lame explanation that she decided to honour the new will was roundly dismissed by the trial judge.

“The real reason remains hidden, as did the reason why she did not tell her mother and her brother that the deceased had executed another will in Malaysia,” Justice Choo said.

Choice of executor

In this case, the elder sister was named as the executor of her late father’s original will and would be tasked with managing an undisclosed amount of his assets that would be shared equally among her and her two siblings.

Her brother, who was named as the substitute executor, had filed an application to remove his sister from her role after they fought over the new will. But Justice Choo saw no reason to remove her simply because the two could not get along.

After all, the estate’s assets had been clearly identified and the sister would need only to work with the family’s lawyer to get the rest of the paperwork done.

“(She) is clearly on notice that she has to discharge her duties faithfully as she will, no doubt, be watched at every step,” Justice Choo said.

Although having a will might not be the silver bullet to stop families from slugging it out in court, not having one certainly increases the risk of rightful beneficiaries being deprived of their share.

As this case shows, it is not easy to supplant a genuine will because you need more than just mere words to prove you have the real deal.

Source: The Straits Times © SPH Media Limited. Permission required for reproduction.

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