Q My uncle and brother bought an HDB flat together as joint tenants. They paid the mortgage in full. My uncle died a few years ago, so my brother automatically became the sole owner of the flat. He married a Chinese national last year.

What can my brother do to prevent his wife from getting the flat should he suffer any mishap? He feels that she does not deserve to get the flat as she has not contributed a single cent to the household.

A It would be advisable for your brother to make a will in which he wills away his assets, including the flat, to specified beneficiaries other than his wife. It would also be advisable not to register her officially as a permitted occupier of the flat, as this could give rise to complications over her continued right of occupancy and, ultimately, the disposal of the flat after his death.

That said, as his wife, she is his dependant and would have played some sort of spousal role. Thus, it might not be fair or conscionable for him not to leave anything at all to her after his demise.

It might, therefore, be prudent to bequeath to her some part of his assets, whether in cash or other forms. If he wants to bequeath Central Provident Fund monies, he must make a specific nomination. Otherwise, these will be divided according to intestacy laws, under which his wife would have a share of his CPF.

If your brother fails to provide for her (or for any lawful children from their marriage), she is entitled as his dependant, under Chapter 138 of the Inheritance (Family Provision) Act, to apply to the courts for reasonable maintenance to be paid out of his net estate.

The court will assess her claims and other relevant factors - such as her income-earning ability, present or future sources of capital or income, and conduct towards your brother. If the court deems it appropriate, it will make provision for her reasonable maintenance from your brother’s net estate.

If your brother does not wish to bequeath to her any part of his estate and his reasons are sound - for example, he has more than adequately provided for her in his lifetime (by, say, putting some cash, assets or savings under her name), or if her conduct towards him or the marriage justifies his actions in leaving her out of the will - he should make this clear in his will.

The court will then assess the case in the light of the reasons provided in his will.

Lim Choi Ming
Partner, KhattarWong

Advice provided in this column is not meant as a substitute for comprehensive professional advice

Source : Sunday Times - 11 May 2008

PROPERTY company PropNex is dropping its lawsuit against a couple who refused to pay the seller’s agent the 1 per cent commission after buying a home.

Both sides reached an agreement after a mediation session on Tuesday, which PropNex said yielded a ‘win-win’ conclusion. They declined to disclose the terms of the settlement.

If the case had gone to trial, it would have turned the spotlight on the contentious issue of whether home buyers should pay a fee to sellers’ agents.

PropNex associate director Ricky Low Yong Sern, who was the only agent handling the sale of a terrace house in Whampoa last year, had sought about $4,000 in commission or a service fee from the buyers, marketing specialist Loh Yi Min, 29, and his wife Ariel Wee, a 33-year-old polytechnic lecturer. 

The couple bought the house - built over 30 years ago and classified as a Housing Board flat - for $400,000 in April last year. They did so without hiring an agent.

According to court documents, PropNex’s Mr Low claimed that he had provided services to them.

But the buyers refused to sign the commission agreement, saying they had not agreed to pay him a fee.

PropNex chief executive Mohamed Ismail said of the first such lawsuit initiated by his company: ‘It has been amicably settled, so we are withdrawing the case. PropNex initiated this on the grounds that a fair amount of work has been done by the agent to start off with. This negotiated settlement takes into consideration both parties’ views.’

Ms Wee, however, called for rules requiring property agents to state clearly what services they were providing independent buyers that would justify the commission.

‘And we really need to see whether the same agent can represent both the buyer and seller - it’s a complete conflict of interest,’ she added.

The issue of commissions payable by buyers who deal without agents has been hotly debated in recent years. The law does not fix agents’ fees, but most property sellers pay their agents a commission of 2 per cent of the selling price, while buyers foot 1 per cent.

Many agents marketing HDB flats also charge independent buyers a 1 per cent fee, but this is not practised for transactions involving private property.

This difference, say agents, comes from the lower prices of HDB flats, which translates into a lower commission. The sale of HDB flats involves more paperwork, they add.

Disputes arise when sellers’ agents tell independent buyers about the commission only just before sale papers are signed.

Agents, on their part, say independent buyers often leave the sellers’ agents to handle the paperwork but refuse to pay a service fee.

Source : Straits Times - 8 May 2008

Wife of man who killed himself in US jail faces off against in-laws

A FAMILY is locked in a court tussle over two properties worth millions three years after a Singaporean businessman killed himself while awaiting trial for killing his adopted son.

One house - in Margate Road off Mountbatten Road - was in the name of Charles Loo Chay Loo, who was taken off life support three months after he tried to end his life in a San Francisco prison. He was then 51.

The registered owner of the other house - in Seraya Lane off Haig Road - was Loo’s wife, Madam Wendy Chen Tsui Yu, 55.

But Charles’ mother, Madam Tan Chan Tee, 80, and his older brother, Mr Loo Chay Sit, 57, say they paid for the houses and are the actual owners.

Charles and his wife were only holding the properties in trust for them, they claim.

The case to determine who owns the properties opened in the High Court yesterday and is fixed for a 10-day trial.

Lawyer Low Chai Chong, representing the Loos, said the Margate Road property was bought by the elder brother for $195,000 in 1978. As MrLoo and his wife were going through a divorce then, the family put the property in Charles’ name instead, he said.

Noting that Charles was only 21 then, he added: ‘He did not pay for the house or make any contribution towards the purchase price.’

No formal documents were drawn up and Madam Tan kept the title deeds.

MrLoo lived on the property until Charles and his wife moved in when they got married in 1980.

As for the Seraya Lane property, Mr Low said it was acquired in 1975 by Madam Tan and her sister-in-law. In 1987, Madam Tan paid $788,000 to buy over her sister-in-law’s share.

The house was later transferred to Madam Chen’s name as Charles had convinced his mother, who already owned one property, that she would have to pay additional taxes on it.

In 1993, he and his wife left for the US. Mr Low claimed they were fleeing from the police for their roles in share transactions. But Madam Chen’s lawyer, Mr Chia Kok Khun, disputed this, saying they moved to the US to meet their son’s special education needs.

In September 2004, a depressed Charles allegedly stabbed his 17-year-old son to death.

Mr Chia said Mr Loo started court action to stake his claim on the Margate Road house in April 2005, while Charles was still in a coma.

In March 2006, he won a court declaration that the house was held in trust for him. He transferred the property to his name and sold it within six months for $4.8million.

In January last year, Madam Tan took similar steps and got a default judgment against Madam Chen for the Seraya Lane house.

Around this time, Madam Chen found out about both judgments and took court action to have them set aside.

But by then, the Margate Road house had already been sold and MrLoo failed to pay the sales proceeds into court as ordered. Only $2.4 million of the proceeds remain, the court heard.

Mr Chia argued that Madam Tan and Mr Loo have not been able to produce documentary proof that they paid for the properties.

Source : Straits Times - 6 May 2008

High Court to determine whether two properties should be returned to mother and son

Almost 30 years ago, when Mr Loo Chay Sit was going through a divorce after just a few years of marriage, he transferred a piece of newly-bought property at Margate Road near Katong to the name of his younger brother Chay Loo.

Years later, in 1986, his mother, Mdm Tan Chan Tee, registered another property - in Seraya Lane, also in Katong - in the name of Chay Loo’s wife, Madam Chen Tsui Yu.

Now, Mdm Tan, 80, and her elder son, who is 57, is suing Mdm Chen, 53, to recover the two homes, following Chay Loo’s death in San Francisco in May 2005 at the age of 51. Earlier, he had tried to commit suicide while in police custody, following an apparent murder-and-suicide bid.

Following his death, both Mdm Tan and Mr Loo secured default judgments which transferred both properties back to them. Mr Loo then sold the Margate Road house for $4.8 million.

However, a year later, both judgments were set aside.

The case is now before the High Court for Justice Judith Prakash to determine who had bought and paid for the two properties and if the properties should be returned to Mr Loo and his mother.

In his opening statement, Mr Loo’s lawyer Low Chai Chong said his client bought the Margate Road property in 1978 for $195,000 using his own funds, but later transferred it to his younger brother’s name when he was going through a divorce.

Said Mr Low: “Loo Chay Loo knew that the house was conveyed in his name only for the sake of convenience. He did not pay for the house or make any contribution towards the purchase price at all.”

In transferring ownership of the home to his younger brother before his divorce came through, Mr Loo had not broken any laws since the courts at that time would not divide assets because of the brevity of the marriage, said Mr Low.

The Seraya Lane property, he added, was transferred to Mdm Chen at her husband’s suggestion.

Countering, Mdm Chen’s lawyer, Mr Daniel Tan, said the Seraya Lane property was conveyed in his client’s name after Mdm Chen and her late husband approached Mdm Tan in 1987 for help to raise a sum of money when they were setting up a travel agency.

The mother has to-date not produced any documentary evidence to support her claim that she paid for the Seraya property, said Mr Tan.

The property, he added, had in fact been sold to Mdm Chen in April 1987 for $550,000.

The older Mr Loo has never demanded for a transfer of the Margate Road property to himself when his younger brother was alive, the lawyer added.

“It was only when the deceased fell into a coma that Mr Loo hastily commenced proceedings and claimed that the Margate Road property was held in trust for him,” said Mr Tan. “His sudden claim is not only baseless and unsupported by evidence, but also suspect and lacking in good faith.”

Both Mdm Chen and Mr Loo were in court yesterday but exchanged few glances. Mdm Tan was not in court. The hearing is set for 10 days.

Source : Today - 6 May 2008

Jurong Town Corporation (JTC) had won an appeal in a civil suit brought against it by a former sub-contractor and was awarded $8.1 million in damages. But in the latest twist to the four-year legal wrangle between JTC and sub-contractor Wishing Star, JTC will receive only $339,823.

The saga began in Nov 2003 when Hong Kong-based Wishing Star cried foul over the way JTC terminated its services after it was awarded a $54-million contract to build the glass walls of the 185,000-sq-m Biopolis. JTC argued that Wishing Star had made fraudulent misrepresentations in its tender to win the contract.

In the event, Justice Choo Han Teck ruled in favour of the sub-contractor, prompting JTC to launch an appeal in Dec 2004. In May 2005, JTC won its appeal and subsequently claimed losses of more than $8.1 million.

The bulk of the sum was accounted for by the $7.81 million difference between the value of Wishing Star’s contract and that of Bovis Lend Lease - the sub-contractor that JTC engaged after a second round of tenders.

Other costs arose from expenses JTC had incurred from travelling to Dongguan, China to inspect Wishing Star’s facilities, and fees for consultancy and surveying services.

Wishing Star countered with its own appeal. Its lawyers, led by Mr Tan Liam Beng, argued that the sum of $7.81 million JTC incurred was not a direct consequence of Wishing Star’s misrepresentations.

On Thursday, the Court of Appeal ruled that JTC had failed to give sufficient proof or evidence of this loss. It also ruled that JTC has to pay three-quarters of the costs incurred in the Appeal Court and High Court.

Source : Weekend Today - 12 Apr 2008

The Court of Appeal has substantially slashed damages granted to JTC Corporation after its 2005 victory over Hong Kong contractor Wishing Star.

The Appeal Court, on Thursday, reduced JTC’s original award of $8.14 million damages to just $339,824 - and ordered it to pay three-quarters of costs.

The case has its roots in a contract dating back to June 2002. JTC Corporation, Singapore’s biggest industrial landlord, contracted Wishing Star to provide glass facade walls at the Biopolis, the biomedical research centre at JTC’s one-north project in Buona Vista.

In September 2002, JTC terminated the deal, accusing Wishing Star of misrepresenting its facilities and capabilities when it bid for the project in an open tender. Wishing Star sued, and the High Court ruled in its favour, in 2004. But JTC appealed.

In 2005, the Appeal Court found that Wishing Star had made fraudulent misrepresentations that were material to the award of the contract by JTC - and held Wishing Star liable to JTC for damages due to the termination of the contract.

In 2007, the High Court deemed Wishing Star to be liable to JTC for some $8.14 million damages - of which, $7.8 million was the difference in the value of Wishing Star’s contract and the value of contract between JTC and another sub-contractor, Bovine Lend Lease, which was hired to carry out the facade works after Wishing Star’s termination. Wishing Star appealed against the award of damages.

The Appeal Court on Wednesday dismissed Wishing Star’s appeal against all other claims - but allowed it against the $7.8 million.

The court looked at whether the $7.8 million was the loss suffered by JTC as a direct result of fraudulent misrepresentations by Wishing Star.

In the first tender, Wishing Star was the lowest bidder at $54 million, followed by SB Facade Pte Ltd at $54.07 million and Liang Huat Aluminum Industries Pte Ltd at $63.46 million.

JTC did not consider SB Facade’s bid because of its past experience with the contractor - which made Liang Huat’s the next lowest bid, after Wishing Star’s.

After JTC terminated the contract with Wishing Star, it invited parties to submit a tender - and Bovine Lend Lease won with its lowest bid of $61.81 million.

The Appeal Court noted that in the original tender exercise, if JTC had not contracted with Wishing Star it would have hired Liang Huat. And Liang Huat’s contract value at $63.46 million would have been more than that of Bovine Lend Lease’s at $61.81 million.

The court ruled that, given the principles governing the award of damages for tort, there was no loss proven by JTC.

Wishing Star was represented by Tan Liam Beng, Eugene Tan and Ling Vey Hong of Drew & Napier, while JTC was represented by Ho Chien Mien and Sheik Umar Bin Mohamed Bagushair.

Source : Business Times - 12 Apr 2008

THE Court of Three Judges is deliberating over how three lawyers should be taken to task for their roles in making a court wrongly pay out $4.27million.

In hearing the matter last Thursday, Chief Justice Chan Sek Keong said it was clear the court had been ‘made use of’.

The question though, said the CJ, was the intent of the three lawyers - Ms Nor’ain Abu Bakar, Ms Ruby Tan and MrPeter Chua.

In 2005, Justice V.K. Rajah had a disciplinary committee look into their conduct. He also referred the case to the Attorney-General’s Chambers.

The lawyers’ passports were impounded by commercial crime investigators but have since been returned. No criminal charges were filed.

Still, the disciplinary committee found the case serious enough to be referred to the Court of Three Judges, which hears cases on errant lawyers and has the power to suspend or strike lawyers off the rolls.

Ms Nor’ain and Ms Tan were acting for Indonesian company JAK Alhadad & Co, in a complicated battle over properties left by an Indonesian millionaire who died in 1953.

In July 2004, $4.6 million from the sale of the properties was handed over to the courts, pending a decision on how it should be split. Two months later, the two women lawyers applied to a court for $4.27 million to be paid to JAK.

However, they made this application under a different lawsuit between JAK and MrChua’s clients, two Indonesian lawyers acting for some of the beneficiaries.

None of the three lawyers told the assistant registrar about the competing claims. The assistant registrar ordered the release of the money to JAK.

Justice Rajah has ordered JAK to return the money to the courts but that may prove to be an uphill task as it has been split among multiple parties, including lawyers and various parties in Indonesia.

After a four-hour hearing on Thursday, the Court of Three Judges reserved judgment. It will give its decision later.

Senior Counsel Andre Yeap, representing the Law Society, called it a classic case of lawyers ’saying things they know are false, not saying things they should - all with a view to depriving other people of benefits and entitlement’.

Ms Nor’ain’s lawyer, Mr N. Sreenivasan, conceded that her non-disclosure amounted to grossly improper conduct, but said it did not constitute fraud and deceit.

Ms Tan’s lawyer, Mr Shashi Nathan, said his client, who now lives in Austria, was ‘naive’ and was acting on MsNor’ain’s instructions. MsTan, who received $64,000 in legal fees for the case, has repaid $15,000 and will pay $1,000 more each month, he said.

Mr Chua’s lawyer, Senior Counsel Deborah Barker, argued that he did not think he had any duty to feed the court ‘background’ information.

She said that even if the court found that he had a duty to inform, his failure to do so could not be seen as fraud or deceit. She also pointed out that MrChua got nothing out of the $4.27 million paid out.

Q I am the executor and trustee for the estate of my mother, who died in April 2006. Her estate is worth less than $600,000, and I have a certified true copy of her will.

Soon after my mother’s death, my father and I engaged her lawyer to prepare and file duty returns. However, it has been almost two years and we still have not obtained the grant of probate.

In the two years, the lawyer switched to another law firm without informing us. My father later managed to trace her to her new firm.

More recently, some shares that form part of my mother’s estate dropped in price. And a cheque worth $3,700, which was issued to my father by an insurance company, cannot be banked in as my mother was the trustee.

This long process of waiting has created a lot of distress for my father. He and I have urged the lawyer to speed up the process on many occasions, but we are still waiting for the grant of probate.

We wish to know what we can do to help reduce the waiting time. We are also concerned that the legal and court fees and the drop in value of shares owned by my mother will increase as the process lengthens. Can you suggest what we should do?

A I note that you did not mention the cause(s) of the delay. If you are unsure of the actual cause(s), you should ask your lawyer and try to understand what are the obstacles she faces so as to take appropriate measures to solve the problem.

As there is no dispute over the validity of the will, I assume that the delay is due to an inability to obtain the certificate from the Commissioner of Estate Duties, which enables you to obtain the grant of probate from the court.

Generally, the entire procedure for obtaining the grant of probate for deaths before Feb 15 can be divided into three stages:

1. Apply to the court and obtain a tentative order of grant of probate. (This takes about two weeks to one month.)

2. File the estate duty affidavit, cooperate fully with the Estate Duty Branch (Inland Revenue Authority of Singapore) if it has queries or requires documentation. (This takes about one month onwards depending on whether you are able to address inquiries made by the Commissioner of Estate Duties.)

3. If no estate duty is payable, the Commissioner will issue a certificate to confirm this. If the Commissioner’s assessment is that estate duty is payable, there will be a request for payment, after which a certificate will be issued to confirm that estate duty has been paid. With the certificate, you can return to court to obtain the final grant of probate. (This takes about one month.)

I believe the delay in your case is because it was held up at the second stage. You need to know why the Commissioner of Estate Duties is not able to issue the certificate. Even if your mother’s estate does not attract estate duty because it is worth less than $600,000, you still need to address the Commissioner’s queries so as to obtain a certificate stating that no estate duty is payable.

Before issuing such a certificate, the Commissioner needs to be satisfied, among other things, that your mother did not make any gift within five years of her death. Such gifts might attract duty. The Commissioner also needs to be satisfied that the sum of $3,700, which you say is due to your father, should be excluded from the assessment of estate duty because your mother was only the trustee.

To reduce the processing time, you need to cooperate fully with the Commissioner of Estate Duties. Attend to all the queries that have not been satisfactorily addressed. Locate and deliver all the documents the Commissioner has requested. If you are unable to supply the answers or documents, you should inform the Commissioner, who might then make certain assumptions so as to proceed with the assessment.

Source : Sunday Times - 6 Apr 2008

Q I AM a 29-year-old executive with no assets except for some small savings, several insurance plans that will pay out on my death and an HDB flat that I will eventually co-own with my older sister.

I am estranged from my father, who divorced my mother more than 10 years ago and has not supported us since. I do not wish to leave a cent to him, my step-siblings or my step-mother.

I have nominated beneficiaries for the payouts from my insurance plans, and I have excluded my father.

If I do not make a will, is this enough to ensure that my father cannot get a share of my money when I die?

A IF YOU die intestate, that is, without a will, your estate will be distributed to your parents in equal shares if you are single at that point. If you are married without children, half will go to your parents and the other half to your spouse.

Thus, you should make a will if you do not wish to leave anything to your father.

The death proceeds from your life insurance policies will go to the beneficiaries you have named. In the unlikely event that your named beneficiaries do not file a claim with the insurance companies, your executor (if you die with a will) or administrator (if you die without one), or any legitimate claimant under insurance laws (such as your father), can seek to have the proceeds paid to them.

The recipient would then be legally obligated to distribute the proceeds in accordance with the law, that is, as specified under your will, in accordance with intestacy laws or to your named beneficiaries, as the case might be.

If your co-owned HDB flat is held under a joint tenancy, your share would go to the surviving joint tenants. If it is held under a tenancy in common, your share would be distributed in accordance with your will, or intestacy laws if you die without a will.

Leong Sze Hian
President, Society of Financial Service Professionals

Advice provided in this column is not meant as a substitute for comprehensive professional advice.

Source : Sunday Times - 30 Mar 2008