Avoiding Property Tussles

Source : TODAY, Thursday, February 19, 2009

Reduce risk of bargains turning into legal liabilities:

IN THE current recession, people with ready cash are looking to pick up good bargains. However, tread with care.








Reported cases that I took on over the years showed that property investors unwittingly fell into costly legal tussles because they failed to take the necessary safeguards before putting down their money.

What seem like simple and standard procedures in a property transaction can lead to expensive, drawn out legal battles. Here are four tips for minimising your risks.


Tip 1: Do on-site approval checks

The year was 1991, just after the Gulf War. Property values had dived sharply here.

My client, who owned a Lornie Road home, was faced with a lawsuit from a buyer wanting to back out of the deal.

The buyer claimed that the seller had not disclosed substantial unauthorised additions and alterations to the property, which affected its title.

At stake was the recovery of a $250,000 deposit from the buyer.

Fortunately for my client, the Appellate Court was persuaded that a seller’s obligation to disclose in a conveyance did not extend to unauthorised structures where no order or notice had been issued by the Building Control Division, as that relate only to an issue of quality and not title.

In a sale and purchase of property containing unauthorised alterations and additions, caveat emptor *applies.

This means it is for the buyer to protect himself by checking that the property is free of illegal additions and alterations before buying the option, or to include in the option to purchase, a clause enabling the buyer to exit the purchase before completion if there are illegal or unauthorised alterations and additions.


Tip 2: As a buyer, ensure you have exit or compensation clause

Last year, I represented a couple that had contracted to sell their Changi terrace house, which had an unauthorised second storey.

The buyers wanted the couple to restore the unauthorised structure, claiming they would suffer huge financial damages if they were to buy a property which required regularisation of unauthorised works.

They further argued that if the works could not be regularised, and had to be removed, this would reduce the built-in area.

It seemed like a case that was plainly in favour of the buyers.

As it turned out, the couple won the case on the argument that the contract was inadequate and did not provide for an exit or compensation clause for the buyers, where there were unauthorised works on the property.


Tip 3: Think carefully before SIGNING ON THE DOTTED LINE

Beware of buying on a whim and then changing your mind.

A caveat cannot be filed willy-nilly and unless a party has an interest in the property, he can be liable for damages and costs for wrongful filing.


Tip 4: IF YOU HAVE TO SUE, DO IT BEFORE THE time warranty LAPSES

In a case where a developer was suing an architectural firm for professional negligence, the claim failed because it was not filed within six years from the act of negligence.

An injured party must pursue a claim with diligence. Otherwise, it may fail because of the time bar.

The writer is director of Bernard & Rada Law Corporation. She has 22 years’ experience in property and commercial litigation.

Can Foreigners Inherit Landed Property?

Source : The Sunday Times, Feb 8, 2009

Q My boss is a Singaporean but she lives in Malaysia as she's married to a Malaysian. She has a few landed properties in Singapore. In the event of her death, can her children and/or husband legally own the properties if willed, as they are not Singapore citizens or permanent residents (PRs)?

A In general, only Singaporeans are allowed to own land and landed properties in Singapore.

The following descriptions of land/landed property in Singapore are classified as restricted residential property:

# Vacant residential land;

# Landed property (that is, detached house, semi-detached house, terrace house including linked house or townhouse); and

# Landed property in strata developments which are not approved condominium developments under the Planning Act.

Foreigners and PRs are allowed to own restricted residential properties only if they have obtained the prior approval of the Land Dealings Approval Unit (LDAU).

Your boss may will her landed property to her husband and/or children even if they are not PRs or Singaporeans. However, upon her death, a foreign beneficiary will have to obtain LDAU approval before he is eligible to legally own such landed property.

If the foreign beneficiary is not granted approval to acquire the landed property, the trustee of the estate of the deceased person will have to sell the foreign beneficiary's share in the landed property within 10 years of the date of death of the deceased person.

If, for some reason, the trustee is unable to sell the property within the 10-year time limit, he will have to apply to LDAU for a time extension.

Lim Choi Ming
Partner
KhattarWong

Developer Wins Right To Newton land

Source : The Straits Times, Dec 31, 2008

Judge gives his ruling based on concept of 'adverse possession', abolished 14 years ago

AN AGE-OLD legal concept which was abolished 14 years ago has crept its way back to influence a court case involving a multi-million dollar dispute over a plot of land in Newton.

Before 1994, in a legal concept known as 'adverse possession', a party which had used a plot of land for over 12 years without the owner's permission could lay claim to the land.

But the Land Titles Act, which came into effect in 1994, was enacted to remove such claims unless the plot of land was held for a continuous 12 years before then.

The current court dispute centres on a 234 sq m strip of sloped land on the fringe of Buckley Mansions. The plot is said to be worth at least $2 million.

Property developers City Developments (CDL), which bought over Buckley Mansions in September 1999, wanted to re-develop the estate and the land around it.

But CDL then learnt that the plot was not part of the property they had bought over.

Their initial checks showed that the late Mr Syed Allowee Ally Aljunied was the last known owner but a study they commissioned also showed four others had bought an interest in the property.

The company applied to the High Court to declare that the plot belonged to them and advertised in the press for any claimants to come forward.

Two people, businessman Harun Aljunied and housewife Sharifah Fatimah Aljunied, declared their interests, claiming they were trustees of the land which belonged to the late Mr Syed Allowee.

A third person, Mr Syed Noah Aljunied, also came forward, as the great-grandson of Mr Syed Allowee, to stake his claim on the land.

However, CDL's lawyers, Mr Kenneth Pereira and Mr Rajaram Muralli Rajan, argued that their clients could still benefit from the old legal concept of 'adverse possession'.

They said that CDL had bought Buckley Mansions from Kerr Leong Heng, a firm which had developed the site and had fenced in the disputed strip as part of the private estate for more than 12 years before 1994 when the change in law was made.

The lawyers also argued that the claimants were neither direct descendants of Mr Syed Allowee nor had any links with his estate.

This plot of land in Newton had apparently belonged to the Aljunied family since the 1900s.

Justice Tay Yong Kwang noted that a long-standing neighbour Lee Jit Seam had testified that since 1971, there had been a fence enclosing the plot as if it was part of the property.

The judge said that in any case, the personal representatives of the rightful owners which historical records show were four persons to whom the plot was sold, never came forward to stake their claim.

Justice Tay said that any claims by the rightful owners did not matter as CDL had a right to the land as a result of 'adverse possession'.

Lawyers The Straits Times spoke to said the argument of 'adverse possession' had not been raised in such disputes for a long time since the law was changed 14 years ago.

Mr Harun and Madam Sharifah Fatimah, who were defended by lawyers Leslie Netto and Bevin Netto, are appealing against Justice Tay's decision.

“房事”纠纷 一天解决

Source :《联合早报》November 9, 2008

根据条例，发展商须承担新居入伙首12个月有关建筑缺陷的责任。

发现簇新洋房或公寓有‘缺陷’的买主，自然而然找发展商理论。

目前，双方如对‘房事缺陷’未能达致和解共识，

在闹上法庭对簿公堂之前，可寻求新加坡调解中心或房地产发展商公会的调停。

新加坡调解中心透露，高达九成的纠纷可在一个工作日内成功达致和解协议。

有买主用灯光把地砖照个仔细，还近距离观察上面有无裂缝。

也有买主要求，厨房所安装的不锈钢洗碗盆，不可以看到有一丝一毫的刮痕。

新加坡调解中心调解员江春彣在受访时披露，这些都是一些新公寓及私宅买主，“挑”出来的“缺陷”。

结果，因为买主对建筑材料不了解而引起纠纷。不过，另一类纠纷则可能是由于发展商、建筑商的不够专业。

江春彣是亿玖科技私人有限公司董事经理，也是一组公司的集团董事经理，从事建筑业已有25年。

他认为，买主的挑剔，显示他们对于建造过程和建筑材料并不了解。以第一个例子来说，根据建筑业标准，只要一个人站在1.5公尺的距离看不到任何裂缝，就属于可接受范围。

江春彣说：“只要是人工打造的东西，就不能期望它是完美无瑕。在建筑行业即有所谓的公差（Tolerance，即指实际参数值的允许变动量）。”　

买主新居入伙的首12个月至18个月，发展商和承包商会为他们进行一些小维修。建筑完成后，建筑材料对气候产生反应，可能会有移动现象，造成微细裂痕出现。

另外，好些买主及管理委员会也不明白维修的重要性。江春彣指出，公寓的外墙需要定期检查及维修。一旦有裂缝就要修补，以免雨水渗入而导致墙壁的石灰爆开。

他说：“就连时常驾驶的汽车，都需要定时维修。可是很多买主却不明白这一点。其实，一些小缺陷如果能尽早进行维修，就能够获得补救。”

“抄捷径”建筑商惹纠纷

话虽如此，成品出现状况，有时跟建筑工人的手艺也有很大的关系。过去，建筑工人的手艺很好，但到八九十年代房屋市场出现热潮时，却有很多建筑商在建造过程中“抄捷径”。

以墙面抹灰来说，抹上三层石灰，须等一层稳定后再抹另一层，前后要9天时间。可是，有些建筑商为了赶工，同一天内分别在早上、中午、傍晚抹上三层石灰，根本没遵照行规做事。

江春彣指出，结果，房地产引发的纠纷一般与建筑商没有遵照建造程序有关。在这项理由下，买主即使隔上五年、十年甚至是“永远”，都能够向发展商追究。

一些建筑商没有遵照标准建造方式来造房子，公寓三四年后就会出现问题，引发索偿纠纷。

他披露，一些大型发展商还能令买主满意。不过，本地在达到行内标准方面，还是未达发展国家水平，这关系到对工作的自豪感问题。

本地建筑业者不像英国、美国、斯堪的纳维亚国家（Scandinavian countries，包括挪威、瑞典和丹麦）的建筑业者，对自己的工作充满自豪感。

尽管新加坡政府及建筑同业都积极提倡“零缺陷”和“高素质成品”，一些中小型承包商的老板本身是商人出身，在专业性方面比较缺乏。另一方面，一些建筑业的专才认为这一行难赚，转行当顾问，担任管理职务。

他认为，建筑业是需要累积经验的行业。专业文凭或大学毕业生入行后得经过10年历练，才能对整个建筑过程有完整的认识。

尽管如此，由于人们对高素质成品的需求增加，鞭策建筑商把工作做得更好。本地建筑业如今更注重创新、高生产力和高度可建造性（即容易建造、无须定制）。

很多建筑商如今都致力于提高专业水平，不少邻近国家同行也纷纷到本地取经。

新加坡调解中心：和解两造须遵守协议

买主（或公寓管理委员会）和发展商等谈妥和解条件后，会签署协议书。由于双方是自愿签下的，因此很少发生违反协议的事情。

新加坡调解中心执行理事长龙承安指出，房屋缺陷的纠纷双方在谈妥和解条件后，会签署协议书。协议内容可包括钱财上的补偿，或者让发展商去进行某些工作。

因此，如果一方违反协议的话，另一方就可以入禀法庭起诉对方。不过，由于协议都是双方自愿签下，因此违反协议的情况很少会发生。

双方取得和解后，须遵守调解协议中的保密条款。保密条款也是为了避免万一案件闹上法庭，一方会以另一方在调解过程中说过的话来反咬一口。

如果其中一方对于补救不满意而向媒体告状，也不能提到跟调解有关的事情。

因此，如果一方在未获得另一方的同意下向他人披露案件的内容及和解条件，后者就可以起诉他违反合约。

速战速决

设在最高法院四楼的新加坡调解中心自1997年成立以来，所处理的与建筑业相关的纠纷占40％，约580多起，和解率为76％。跟法庭诉讼案不同的是，调解中心处理的案件的索偿额不设限。

涉及这类纠纷的各造，可能是公寓管理委员会和发展商、发展商和建筑师，或承包商和二手承包商。

至于公寓买主或公寓管理委员会和发展商之间的纠纷，占上述建筑业纠纷中的多少起，则未有确切的统计数字。

调解中心的特点是可以速战速决，一般在一两个星期内安排调解。如果情况紧急，在各造提出要求的同一天就能够展开调解。在一个工作日内就达成和解的纠纷，占中心所处理纠纷的90％。

中心调解员来自各领域的资深专才，还有前法官和高级律师。中心评估情况后根据需要，决定是否由两名调解员联合调解，不另收费。不过，如果各造主动提出要由两名调解员联合调解的话，则需要支付更多费用。

此外，如果律师在场，对于调解过程也有帮助。除能给当事人建议及说明当事人的权利，律师还可帮拟协议书。

由第三方调解的和解率高

新加坡调解中心发言人指出，纠纷双方由第三方调解，较容易达致和解。第三方也能确保双方不被情绪冲昏头。

此外，旁观者清，当局者迷，调解员可以协助闹纠纷双方认识到怎么做才符合利益，并看清大局。

该中心调解员江春彣在分析房屋缺陷引发的纠纷时说，以发展商及建筑师等这一方而言，多涉及建筑业的专业问题，例如是否提供高素质工程。

从买主一方来说，则关系到对建筑材料的认知问题。很多买主认知不足，期望与现实有落差。

他碰过最棘手的情况，是公寓管理委员会的成员太多，以致进行调解后仍不能做出任何决定，干扰了调解过程。因此，参与调解的代表必须是决策人。

新加坡调解中心提供个案 ① ② ③

●个案 ①

甲公寓管理委员会向发展商、承包商、建筑师及二手承包商提出索偿。虽然委员会没有列明索偿额，但估计介于100万元至250万元。

所列出的缺陷包括屋顶渗入雨水、电梯等候处油漆剥落和地下停车场渗水；另外，园林造景、网球场与游泳池也都有问题。

纠纷最后以59万元和解。

●个案 ②

乙公寓管理委员会指参与建造发展项目的结构工程师（structural engineer）违反职责。委员会没有列明索偿额，但估计高达25万元。

委员会指工程师没有确保他提呈给当局的绘图是正确的；另外，在设计及监督地下停车场防水系统的安装工作、拟定游泳池底下范围结构方面的规格及设计图等，都未行使“合理的谨慎与技术”（reasonable care and skill）。

这起纠纷以6万元取得和解。

●个案 ③

丙公寓委员会指公寓内的共用设施（common property）有缺陷，向发展商、建筑师和主要承包商提出索偿。

委员会并未详细列出有哪些缺陷。索偿额估计介于100万元至500万元。双方无法取得和解。

房地产发展商公会：纠纷两造须遵守裁决

私宅缺陷引发的纠纷，房地产发展商公会（REDAS）去年只处理一起；今年至今为止也仅仅一起。

房地产发展商公会受询时透露，这些公寓的缺陷包括墙壁渗水、木地板下洋灰不足及地砖铺设不平。它认为，买主和发展商无法和解，是因为买主的标准定得太高。

私宅建筑出现缺陷引发纠纷，若发展商属于房地产发展商公会会员，纠纷可提交发展商公会调停委员会（Conciliation Panel）处理。房地产发展商公会共有280个会员，当中半数是发展商。

发展商会在首12个月承担私宅缺陷责任，而调停委员会处理的就是这段时期在手艺、材料品质和买卖合约下有关责任方面的纠纷。

调停委员会成员会到私宅现场检查，并提呈报告和建议。委员会的裁定分三类：一、发展商没有过错；二、发展商须修补缺陷；三、发展商须做出赔偿。

如果委员会认为调查还不足够，就会进一步调查或再次前往私宅现场查看。

调停委员一般在两三个星期内就能够解决买主和发展商之间的纠纷。据知，这类纠纷都能够成功和解。

房地产发展商公会指出，委员会的裁决将是最后的决定，买主和发展商不能提出上诉或要求重审。如果一方不遵守委员会的裁决，另一方则可使用有关裁决加上双方所签订表明接受裁决的协议采取行动。

新加坡调解中心经过调解后会定出和解款项，房地产发展商公会则不会这么做，而是让发展商自行纠正缺陷。

寻求调解须付费

●房地产发展商公会的收费

申请让房地产发展商公会调停委员会（Conciliation Panel）听审，买主须支付500元的处理与行政费。这笔费用不退还。

提出申请时，发展商和买主另须交1000元押金，这可用来支付临时费用或在委员会裁决时抵消一些可能涉及的费用。押金会退还给买主和发展商。

●新加坡调解中心的收费

除了250元一次性行政与服务费，不同争议金额所须支付调解费（每日）如下：　

· 10万元或以下：每造付900元。

· 10万元以上至25万元：每造付1200元。

· 25万元以上至50万元：每造付1800元。

· 50万元以上至100万元：每造支付2200元。

· 100万元以上至250万元：每造支付2600元。

· 250万元以上至500万元：每造支付2800元。

· 500万元以上：每造一天支付2900元，另加按比例分配的500万元以上款额的0.05％。　　

调解中心所处理的纠纷，高达90％在一个工作日内和解。

双方撤销调解，可能须缴付罚金，款额视情况而定。以临时撤销调解来说，罚金可达当天调解费的一半款额。

Builder's Appeal Thrown Out

Source : The Straits Times, Sep 9, 2008

SINGAPORE'S highest court has thrown out a lawsuit from a contractor that claimed its reputation was damaged by a woman who sent an angry email complaining about leaks in her condo.

The three-judge Court of Appeal called the defamation lawsuit by Hytech Builders a 'tempest in a teacup' on Tuesday and said the firm's beef was 'completely blown out of proportion'.

The decision upheld a lower court ruling and ended a 20-month legal battle between Hytech and stockbroker Goh Teng Poh.

The feud was sparked in Jan 2007 after Ms Goh, frustrated that leaks in her year-old condominium in Ipoh Lane had not been fixed, shot an e-mail message to the building's developer.

In it, she called into question the contractor's financial health.

Hytech, the main contractor for the condominium, sued her for damages. Through lawyers from Rajah & Tann, it claimed the letter tarnished its reputation with CDL, a major real estate player here.

When the case was first heard in the High Court last year, Justice Judith Prakash agreed that the statement was defamatory.

But she said Ms Goh sent the email with the intent of getting the leak fixed, and not to damage Hytech's reputation. Ms Goh was not liable for damages as she was driven by a duty to pass on the information, not malice, the judge ruled. Her defence of qualified privilege applied.

In his submissions before the Appeals Court, Senior Counsel Andre Yeap argued Hytech was hurt by the accusations and urged the judges to imagine themselves in the company's shoes.

The judges dismissed those arguments, saying the e-mail had to be seen in context and was the result of Ms Goh's frustration.

Step Up Scrutiny To Curb Illegal Renovations

Source : The Straits Times, July 03, 2008

I refer to last Friday's report, 'Illegal storey in house: Buyers lose case', about the couple who lost their case against the sellers of a 1 1/2-storey property.

The Building and Construction Authority (BCA) had informed the parties that the property had an illegal storey added to it.

This was a case that was in the making for a long time.

Innocent parties have wasted resources when they are not familiar with the building rules and regulations and believe that the property they are purchasing has duly complied with such regulations.

The illegal structure may not be a mere transgression of building rules - where a backyard shed is built right up to the rear perimeter wall.

Situations may arise where neighbours are so much nearer to you because walls and roof eaves are being built with less than the permitted distance set back from the boundaries of the property.

Or your property is now less private because your neighbour is looking down at you from his third-storey bedroom window.

If rectification work is required for these transgressions, it could be very costly.

In the last 10 years or so, there have been a lot of renovation work all over the island. I have seen many renovations or reconstruction of houses which do not seem to abide by BCA rules.

I believe this may be attributed first to inconsistent application of these rules by the regulators.

Second, too much reliance on certification by the architect/engineers who submit the building plans and endorse that the plans have conformed with all aspects of building regulations.

Third, too little groundwork by regulators to confirm that the actual construction adheres to these regulations.

As an example, in certain housing estates, properties can be redeveloped but the new structure should not exceed 2 1/2 storeys.

However, it is evident when you drive around the housing estates that several of these renovated structures are actually three-storey buildings.

Brunei Prince Fights To Keep Nassim Mansion

Source : The Straits Times, June 27, 2008

Worth at least $120m, it was used by the prince up to year 2000

THE fight between Brunei's national investment firm and the sultan's brother, Prince Jefri Bolkiah, has reached Singapore's courts.

The prize in this legal battle: the prince's now-unoccupied Nassim Road mansion, worth at least $120 million and believed to have housed valuable artworks and other assets.

HOUSE OF CONTENTION: The Brunei Investment Agency (BIA) is seeking court order here to compel the prince (2nd image) to hand over the title to this Nassim Road mansion. The Registrar of Titles here requires a Singapore court order for the BIA to be registered as the legal owner of the mansion. -- ST PHOTO: LIM WUI LIANG

The prince, the younger brother of Sultan Hassanal Bolkiah, is already mired in tussles with the Brunei Investment Agency (BIA) over his assets elsewhere, including those in London and New York.

The BIA, which the sultan oversees, is the main agency holding and managing the Brunei government's General Reserve Fund and its external assets.

In the fight for the Nassim Road property, the BIA is represented here by Senior Counsel Vinodh Coomaraswamy.

According to court documents filed in the Supreme Court, the BIA is seeking a court order to compel the 53-year-old prince to hand over the title to the premises.

The Registrar of Titles here requires a Singapore court order for the BIA to be registered as the legal owner of the mansion.

Prince Jefri, defended here by lawyer George Pereira, is contesting the application.

A hearing has been fixed for October.

The plush Nassim Road premises, named Arwaa mansion, were understood to have been used by Prince Jefri up to the year 2000.

The house, having been developed as a single structure from two back-to-back properties with different addresses, has entrances on two roads.

Although unoccupied, it is guarded round the clock by private security staff; cleaners are also there regularly.

In a bid to keep it in his possession, Prince Jefri is expected to argue, among other things, that Arwaa mansion was excluded, and therefore separate, from matters heard before the Brunei courts as part of the enforcement proceedings started there against him in 2004.

The prince, who left Brunei that year and now lives in France, is expected to ask the courts here to return Arwaa mansion to him.

His assets in London are still the subject of court enforcement.

Over in New York, a court ordered in March that he hand over ownership of the plush New York Palace hotel in Manhattan to the Brunei government.

It has been reported, however, that the court has barred its sale because the prince is disputing the order for a chance at ownership.


The legal battle

BILLIONS of dollars are alleged to have gone missing while Prince Jefri Bolkiah was Brunei's finance minister.

He signed an agreement out-of-court with Brunei's government in May 2000 to hand over several of his properties and valuables from around the world, but apparently failed to comply fully with the terms.

Legal action began against him in Brunei in 2004, and ended last year at London's Privy Council, the oil-rich kingdom's highest court of appeal, which ruled that he had to comply with the deal.

Earlier this month, the London court issued an arrest warrant against him for not showing up to answer charges that he had violated a court order to hand over £3 billion (S$8 billion) to the Brunei government.

Judge: Will Is Absurd, Unusual

Source : The Electric New Paper, May 16, 2008

BATTLE OVER LATE TYCOON'S $7M ESTATE

# Man appoints son as trustee in will
# Leaves entire estate on 'trust to be distributed' to same son
# Family sue son, who was found not 'entirely truthful' by court

A BUSINESSMAN's strange will, over which his family is feuding, has raised the eyebrows of judges in Singapore's highest court.

Judge of Appeal V K Rajah said of the late Mr Ng Teow Yhee's last testament: 'In my years in (law) practice, I have never seen a will of this sort.

'It is a highly unusual will where the beneficiary is also the sole trustee.'

Later on in the hearing, he again commented: 'It has a highly unusual form. There are aspects of it that border on the ridiculous. How can someone be the trustee for himself? It's absurd!'

Mr Ng had built up his fortune in the stevedoring and shipping business.

He died in April 2001 at the age of80.

And his will, made on 27 Nov 2000, left everything to his 'favourite' son, Mr Sebastian Ng Hock Guan, 51.

This has led to a bitter division in the family, with the late Mr Ng's wife, Madam Low Ah Cheow, 82, two of her eight children and two grandchildren in one camp. They sued Mr Sebastian Ng for a share of the estate.

They argued that Mr Sebastian Ng was supposed to hold part of the money given to him by the late Mr Ng in 'secret trust' for them.

His estate, which includes an East Coast bungalow on Wiltshire Road, and shares in his company, is estimated to be worth more than $7 million.

35-DAY TRIAL

After a 35-day trial in the High Court last year, Justice Woo Bih Li said Mr Sebastian Ng had not been 'entirely truthful', but that the other side's evidence was also fraught with inconsistencies and was unreliable.

He ruled that Mr Ng had given his entire estate to his son Sebastian, in the expectation that he would do right by his family.

Mr Sebastian Ng, he said, would have to be dictated by his conscience, though there was no legal obligation.

Madam Low's group, who subsequently changed lawyers, appealed against the decision.

Yesterday, Chief Justice Chan Sek Keong and Judges of Appeal V K Rajah and Andrew Phang expressed their doubts over the way the will was worded, and the lack of witnesses to how it had been interpreted by the lawyer to the Hokkien-speaking Mr Ng before he put his thumbprint on it.

The questionable part of the will was that Mr Sebastian Ng would hold 'on trust' the late Mr Ng's residuary estate (after paying all debts and expenses), to be distributed to himself.

Of this, Justice Rajah said: 'You don't distribute to one person. If it's going to one person, why use the word distribute?'

CJ Chan added: 'In a normal will, when you want to give everything to a beneficiary, you simply appoint an executor, give everything to (the beneficiary) absolutely.

'There's nothing to hold on trust.'

The judges also questioned how the will had been interpreted to the late Mr Ng.

Justice Rajah said: 'What troubles me is that there's no line-by-line interpretation (by lawyer Alan Lee to Mr Ng).'

As it also turned out, Mr Lee has been handling matters for Mr Sebastian Ng and his wife for a long time.

CJ Chan pointed out about the will: 'The draft was never produced, the associate who drafted it never gave evidence. We don't know what was interpreted.'

To which, Mr Sebastian Ng's lawyer, Mr Ling Tien Wah, replied that this was because the associate had suffered a stroke and gone into a coma, so could not be called as a witness.

Justice Phang also noted that Mr Ng leaving everything to his son Sebastian, thus cutting the rest of his family off, would result in a 'disconnect' with the way he treated them when he was alive.

They were drawing salaries from the company's subsidiary and a couple of them even lived with him in the same house.

Justice Rajah said the judges had many unresolved questions about the case, in which 'there are no angels'.

CJ Chan said: 'There are many question marks, can you assist us?'

The judges also pointed out to the lawyer for Madam Low's camp, Mr Lim Joo Toon, to consider the possibility of a 'failed trust' and asked him to address that point.

SPLIT EQUALLY

A 'failed trust' would mean that the intestate succession law will kick in, which could result in half the money going to Madam Low, with the remainder split equally among the late Mr Ng's eight children.

In which case, Mr Sebastian Ng might end up worse off.

That's one way in which the appeal court may decide, said Justice Rajah.

But, said CJ Chan: 'This case need not necessarily be decided on an all or nothing basis.'

Justice Rajah told Mr Ling: 'Do you get what we are saying? That your client may be better off trying to resolve this amicably.'

He added: 'We were trying to be delicate. Let me be more direct.

'Now that everything is so stark, it could be all or nothing.'

Mr Ling then asked the court to adjourn the case, so that he could speak to his clients and the lawyers for the other side on how to proceed.

When The New Paper checked last night, the parties had yet to settle the case.

Tussle Over Katong Houses

Source : TODAY, Tuesday May 6, 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.















Mr Loo Chay Sit(left) and Madam Chen Tsui Yu(right)

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 S$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 S$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 on Monday but exchanged few glances. Mdm Tan was not in court. The hearing is set for 10 days. - TODAY/ar

THE CASE:

Loo Chay Loo and his wife, Taiwan-born Chen Tsui Yu, moved to San Francisco after they were involved in a Commercial Affairs Department probe in 1993 regarding shares transactions.

Mr Loo took on the name Charles, and his wife, Wendy.

The couple adopted a son, Benson, and years later, Mdm Chen gave birth to Jackson six years later. The family reportedly lived in the posh beachfront district of Hillsborough.

In September 2004, Mr Loo was arrested for the murder of Benson, who was found at home with stab wounds. Mr Loo, who was under severe depression, had also tried to commit suicide by slashing his wrist, but failed.

While in custody, he attempted to take his life again. This time, he fell into a coma. According to his wife, Mdm Chen, Mr Loo had signed a living will that stated he did not wish to be placed on a life support system.

The plug to his life support system was pulled and he died on May 16, 2005.

PropNex Takes Home Buyers To Court Over Fee Dispute

Source : The Straits Times, Apr 29, 2008

Case hangs on whether flat buyers who deal without agents should pay a commission, too

A COUPLE who bought a home and refused to pay the seller's agent the 1 per cent commission are being taken to court by a property company.

PropNex associate director Ricky Low Yong Sern is seeking about $4,000 in commission or a service fee in a case that is likely to turn the spotlight on the issue of whether home buyers should pay a fee to sellers' agents.

He was the exclusive agent handling the sale of a terrace house in Whampoa built over 30 years ago and classified as a Housing Board flat.

Marketing specialist Loh Yi Min, 29, and his wife, polytechnic lecturer Ariel Wee, 33, bought it for $400,000 in April last year. They had acted on their own without engaging an agent.

In documents submitted to court, Mr Low claimed that he had a right to collect a commission as he had exclusive rights to market the property. He also claimed that he had provided services to the buyers.

However, the couple refused to sign the commission agreement when they inked the sale last year. They claim they had made no deal to pay him a fee in the first place.

Both sides will attempt to reach an agreement when they attend a court dispute resolution session next month.

This is the first lawsuit of its kind started by eight-year-old PropNex.

The issue of commissions payable by independent buyers, or buyers who deal without agents, has been hotly debated in recent years.

While there is no law fixing the fees payable, property sellers typically pay their agents a 2 per cent fee, while buyers pay their agents a 1 per cent fee.

Many agents marketing HDB flats also charge independent buyers a 1 per cent fee, but this is not practised in private property deals. Property veterans said this disparity was due to the lower prices of HDB flats, which amount to a lower commission for agents.

Some independent buyers have complained that sellers' agents inform them that they have to pay a commission just before the purchase documents are signed, leaving them with little time to find out about their rights.

Once the buyers sign the commission agreements, they are bound to pay the fee.

However, agents have countered that independent buyers often leave the paperwork to the sellers' agents but refuse to pay a service fee.

Major real estate agencies contacted by The Straits Times have varied responses to such situations, although all maintain that independent buyers of HDB flats should pay a fee.

HSR property group chief executive Patrick Liew said his company takes three to four independent buyers to the Small Claims Tribunal each year for similar claims and has won payment each time.

ERA Singapore's assistant vice-president Eugene Lim said his company does not take independent buyers to court when no commission agreements are signed.

Meanwhile, the Consumers Association of Singapore has, in recent years, questioned the practice of agents taking commissions from both buyer and seller in the same transaction, citing a possible conflict of interest.

JTC To Get Less Than 5% Of Awarded Damages

Source : TODAY, Weekend, April 12, 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 (picture). 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.

Court 'Made Use Of': Lawyers' Intent Queried

Source : The Straits Times, Apr 07, 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.

Mum Dead For Two Years, But No Sign Of Probate Yet

Source : The Sunday Times, Apr 6, 2008

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.

How To Deny My Father A Share Of My Assets After I Die?

Source : The Sunday Times, Mar 30, 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.

Will I Be Forced To Sell Home Upon Divorce?

Source : The Sunday Times, Mar 23, 2008

Q MY husband and I have been separated for nine months. He has moved out of our home, but my children and I are still living in the condominium, which is under both his name and mine.

When we divorce, what will happen to the condo? Will I be forced to sell it and split the money 50:50? What are our options if my children and I want to continue living in the condo? My husband is currently paying half of the mortgage loan.

A THE fate of your matrimonial home can be affected in two scenarios - if there is a default in the mortgage repayments and upon divorce.

If there is a default in the mortgage payments, the mortgagee bank would be entitled to recover possession of the property and sell it off.

In the event of a divorce, the division of the matrimonial home will be adjudged by the court if the parties are unable to reach an amicable settlement. When it falls to the court to decide, there are various factors that it takes into account.

The starting point is the parties’ respective direct financial contributions to the initial payments and the monthly mortgage. Payments for these through Central Provident Fund (CPF) monies are also taken into account. The court then takes into account indirect financial contributions such as renovations, payment for furniture, fittings and furnishings, monthly maintenance charges, utilities bills and other outgoings on the home.

Finally, the court takes into account indirect non-financial contributions such as looking after the children and the welfare of the family, cooking, housekeeping, looking after an aged or disabled member of the family.

In raising your children and looking after them, you would have earned an additional equity or share in the matrimonial home that would be added to your share due to your financial contributions.

The court also takes into account that if you have the care and control of your children, you would continue contributing towards their upbringing and welfare. If there was an agreement, its terms (for instance in a separation deed) would also be a factor to be considered.

However, the court does not embark on a detailed calculation of mathematical precision. Instead, it adopts a ‘broad brush’ approach and understandably so, as no one keeps such neat and precise accounts as in a business.

The court is also not compelled to order an equal division as the law requires the division to be just and equitable, although in some cases, an equal division may be the most just and equitable one.

In short, the court will be fair to both parties. Having arrived at your share or equity in the home, the next issue is to decide how to satisfy that equity, for instance whether you have the financial means and capability to buy out your husband’s share.

Depending on your age and the amount of funds available in your CPF account, you may be able to use some of those funds to buy out your husband’s share. You may also be able to find a bank willing to enter into a fresh loan agreement with you for the apartment.

If your husband is agreeable, you may also be able to postpone the sale until, say, when the youngest child reaches 21 years of age or completes his or her education, whichever occurs later.

The apartment may have to be sold as a last resort, and after deducting the outstanding loan, the refund to your respective CPF accounts and expenses of the sale, the rest of the money will then be distributed according to you and your husband’s shares as determined by the court.

While it is true that it is possible to maintain the standard of living that both parties have been used to during marriage, it is also true that upon a divorce, there will almost always be a lowering of the standard. You may have to find alternative affordable accommodation for yourself and your children and look to your husband to contribute towards the expenses as part of his monthly maintenance obligations.

With the recent amendments to the CPF Act, you may be able to persuade the courts to transfer the apartment to you without having to refund your husband’s CPF account first, but it may not be reasonable for you to insist on living in a private condo when there is ample affordable public housing available.

Amolat Singh
Lawyer, Amolat & Partners

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

Will Dependants Be Liable For My Debts When I Die?

Source : The Sunday Times, Mar 16, 2008

Q What happens to a person’s liabilities when he dies? For example, if he is in debt to a bank for his personal credit line, will his dependants - say, his wife - be required to repay the debt even though she has no interest in the account, which is held in his name only?

A YOUR dependants, such as your wife, are not liable for your debts unless, for instance, they were joint-account holders with you, or acted as guarantors for your loan.

Your estate is liable for your debts. The estate includes your assets other than an HDB flat, the balance in your CPF account, and any life insurance expressed for the benefit of your spouse or children at the inception of the policy.

As the CPF Dependants’ Protection Scheme (DPS) was transferred to two private insurers about two years ago, and CPF nominations are no longer applicable to DPS, DPS death proceeds will also form part of your estate.

While the balance in your CPF account is protected from creditors, any CPF used for investment will not be protected from creditors on death. You should therefore consider liquidating any CPF investments before death.

As in the high-profile case of former NKF chairman Richard Yong, when someone, while in a state of insolvency, makes any asset transfers that could be construed as an attempt to defraud creditors, those assets may be recovered by creditors too.

Leong Sze Hian
President, Society of Financial Service Professionals

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

Who Inherits Flat Depends On Type Of Home Co-Ownership

Source : The Sunday Times, Mar 9, 2008

Q I HAVE a Housing Board (HDB) flat that I had applied for together with my father before my marriage. Should anything happen to me, will the flat go to my wife or my father, who is a co-owner of the flat?

My wife has her own income but ever since we got married, she has not contributed a single cent to the household. I feel she does not deserve to get anything should I suffer any mishap.

What can I do to protect my assets from her? I want my father to at least have the bigger share of my assets, including the flat.

A IT IS important to first ascertain how the HDB flat is co-owned by your father and you. Co-ownership can be in the form of a joint tenancy or a tenancy in common.

Joint tenancy basically means the owners own the whole flat together. Tenancy in common would mean that each owner has a stipulated share in the said flat, for example, you might own 70 per cent while your father owns 30 per cent.

In the case of a joint tenancy, upon the death of one owner, the other, surviving joint owners will retain the flat in their own names. This is the right of survivorship.

Joint tenants cannot will their share in the flat. If they do so, the will becomes ineffective.

In the case of tenants in common, the share of the deceased owner will not go to the surviving owner but will instead be inherited by the estate of the former.

If you and your father own the flat as joint tenants, then should you die before your father, your share will go automatically to your father and he will become the absolute owner of the flat. Your wife will not get any share.

Similarly, if your father dies before you, you will become the absolute owner.

Should you die later on, your estate will inherit the flat. If you have made a will, the flat will be inherited by the person to whom you have willed it.

If you die without a will, your flat will go to your estate under the laws of intestacy. In other words, your wife and children, if any, will inherit the said flat, in accordance with the Intestate Succession Act Cap 146.

If you do not want your wife to inherit the flat, you can make a will stating whom you want the property to be inherited by, if your father dies before you.

If your father and you own the flat as tenants in common, you can make a will to state who is to inherit your share of the flat, should you die.

If you die without a will, then your share of the flat will go to your estate under the laws of intestacy, that is, your wife and children, if any, would inherit the said share of the flat, in accordance with the Intestate Succession Act Cap 146.

Sharanjit Kaur
Partner, Khattarwong

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


Who gets the flat?

In a joint tenancy, upon the death of one owner, the other surviving joint owners will retain the flat in their own names. In the case of tenants in common, the share of the dead owner will be inherited by his estate.

How Can I Make Uncle Honour Dead Grandpa’s Self-Made Will?

Source : The Sunday Times, March 2, 2008

Q I AM from Malaysia. My grandfather, a Malaysian, died six years ago.

According to his self-made will, his properties were to be distributed among his six sons. His eight daughters were not given a share in the will.

My grandfather signed this self-made will and so did his six sons. There were no signatures from the daughters.

However, immediately after my grandfather died, one of his sons, who is my third uncle, declared that he did not agree with the will. Because of his refusal to accept the will, all my grandfather’s properties are at the moment still under my grandfather’s name.

My third uncle is the one who manages the plantation and the company. He took all the income and did not distribute any to the shareholders.

My father was older than my third uncle and could have challenged my uncle, but unfortunately, he died in June last year.

According to my father’s will, which has been certified by a lawyer, I am the executor.

I want to get back what belongs to my sister, my brother and myself, and I have approached my third uncle. But he told me that, as his nephew, I have no right to ask for anything.

I personally feel that the only way to retrieve what is rightfully ours is to make my grandfather’s self-made will valid in the eyes of Malaysian law. But I have only a photocopy of the will and it was written in Chinese.

In your opinion, is the will of any use in the eyes of the law? Is there a solution to my problem?

A I MIGHT not be able to help very much. As your grandfather and father were Malaysians, Malaysian law would apply.

My advice as follows is based on Singapore law as I am not conversant with Malaysian law. You may wish to seek the advice of a Malaysian lawyer.

There are many dangers in relying on a self-made will. In this instance, it is not clear, based on what you have said, whether the will was properly executed and witnessed.

Also, when the six sons put their signatures on the will, it is not clear in what capacity they did so. Were they witnesses to the will? If so, the gift to them under the will is void as they were also the named beneficiaries under the will.

Under the Wills Act, a beneficiary of a will cannot also be a witness to it; the same applies to his or her spouse. Otherwise, the gift to that person under the will is utterly null and void. If the will includes other gifts and an appointment of executors, it is still valid where these are concerned.

In your grandfather’s case, if the will is void with regard to the gifts to the six sons, you will need to see whether there are other gifts stated in the will. For example, if your grandfather left the residuary estate to all his children, then all his sons and daughters would get a share.

If nothing else is said in the will, intestacy laws would apply. Under Singapore law, when a widower dies (assuming your grandmother died before your grandfather), all his assets will be divided among all his children. In this case, this would include the six sons and eight daughters. You and your siblings would inherit your father’s portion of your grandfather’s estate.

You might wish to get one or more of the other uncles or aunts to apply for letters of representation from the Malaysian court.

You might apply - as executor for your father’s estate - together with them.

You would need to produce the original will to the court when applying for the letters of representation. You would need to get a translation as well.

After the letters of representation have been extracted from the court, the personal representatives can request that your third uncle give an account of the income earned and expenses incurred by your grandfather’s estate during the time your uncle managed the assets.

Ang Kim Lan, Goodwins Law Corporation

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

Getting A Divorce Without Losing Her Home

Source : The Sunday Times, March 2, 2008

Recent CPF changes allow for a more eqitable distribution of the matrimonial home and let the ex-wife keep a roof over her head.

DIVORCING couples come under even greater emotional strain when they try to sort out who gets what.

Last October, measures were put in place that tilt the balance towards divorced women who would otherwise get little from the sale of the matrimonial home - or could even lose the roof over their heads.

Under the revised Central Provident Fund (CPF) rules, retirement funds will be distributed more equitably when coupples split their matrimonial property .

In a nutshell, the changes allow CPF assets such as property or unit trusts, or sale proceeds from these assets, to be transferred immediately to the ex-spouse’s account.

Most Singaporeans use CPF monies to buy the matrimonial home. In some cases, the husband is more willing to transfer it to his former wife, says lawyer Amolat Singh of Amolat Singh & Partners, especially if she can show she’s entitled to a big share.

CPF rules

The old system

The property could not be transferred to the wife until and unless all the monies used by her ex-husband for the mortgage had been fully reimbursed into his CPF account, together with the accrued interest.

Often, the parties did not have the funds to do so, so they were left with no choice but to sell the flat.

This could place them in financial straits, especially if they’d paid a high price for the home. Also, the spouse with the kids would probably have to find alternative accommodation.

This was what happened to Madam Shirley Chong (not her real name), who downgraded to a three-room flat from a four-roomer. Her two kids had to move to a new school as well.

The court had ruled that the flat should go to her, but she did not have the money to make the reimbursement, so the transfer could not take place. The flat was sold and a charge placed on her ex-husband’s account.

He is not yet 55 years old and it remains to be seen whether she will get her money when he reaches that age, as a mandatory Minimum Sum has to be retained in his CPF account.

The new system

The property can be transferred immediately from one spouse to the other even if the funds have not been fully reimbursed into the CPF account.

A charge is placed on the account so as to secure the refund of the CPF monies in the event of a sale.

If the wife sells the property , she must make a reimbursement equivalent to the total amount of the CPF monies used by her ex-husband, into her own CPF account.

This ensures that there is no leakage of funds from the CPF system.

The refund is just postponed until there is a sale, and the refund or reimbursement is made into her own account.

Madam Chong would be far better off under the new rules as the court could order an immediate transfer of the flat to her with or without a reimbursement.

Here are three real-life cases where divorced couples have benefited from the new rules.

Couples who have benefited

Case 1

MARRIED for six years, Mr and Mrs Victor Lee (not their real names) bought a three-room HDB flat now worth $200,000 on the resale market. He owed her $9,000 for maintenance in arrears.

Finally, they divided the flat in such a way that she took over his share by paying $60,000 into his CPF account. This represented the CPF monies he had withdrawn to buy the flat, plus accrued interest, less the debt of $9,000.

Said Ms Lie Chin Chin, the managing director of law firm Characterist: ‘Without the revised ruling, the $9,000 would have remained an outstanding debt. This ruling permits a partial refund of CPF monies into the ex-husband’s account, so Mrs Lee managed to offset the debt with the sum that was supposed to be refunded into his CPF account.’

When she sells the flat, however, she is required to refund any CPF monies she used for the property , plus the sum of $9,000, into her CPF account.

Case 2

AFTER 10 years of marriage, Mr and Mrs David Lim (not their real names) called it quits. At the point of divorce, she had no income and was thus unable to secure a housing loan. She had custody of a child and they needed a roof over their heads.

The Lims agreed that he would transfer his share in their five-room flat worth $400,000 to her without making any refunds into his CPF account. She managed to take over the flat in her sole name and continued living there with her child.

Without the revised CPF ruling, the division of the matrimonial flat could have posed a financial burden. The flat would have had to be sold or she would have had to take it over.

If the flat had been sold, most of the proceeds would have been refunded into his CPF account. There would have been little cash left over to be distributed. She would not have had the funds to buy another flat.

If she had taken over the flat, she would have had to get a loan so she could refund the monies into his CPF account. But she had no income, so her chances of getting a loan would have been practically non-existent.

Case 3

WHEN Mr and Mrs Joseph Ang (not their real names) bought their matrimonial home for $550,000 more than 10 years ago, they put in equal contributions using CPF monies.

The property is now worth $1.8 million. She paid for the renovation costs of $450,000.

They agreed to divide the house 80:20 in her favour. This meant he should receive $360,000.

But the sum due to be refunded into his CPF account was about $420,000 as the refund had to include the accrued interest on the CPF monies used. They agreed that she would take over his share by paying only $360,000 into his account.

Court order needed

Lawyers point out that the new CPF rules do not automatically apply in all divorce cases. A court order must first be made.

The onus is on the court to explicitly state that one spouse can transfer his or her share of the property to the other without having to refund the monies used. Only then can the transfer take place.

If the court does not make such an order, and it is purely the couple’s decision to buy over each other’s share of the property , the old rules still apply. The transaction must be done at fair market value and the monies must go back to the respective CPF accounts.

Dividing the assets

IN DECIDING who gets what, the law requires any division of matrimonial assets to be just and equitable.

Courts weigh certain factors when determining how assets should be split.

Matrimonial home

Contribution of each spouse: The starting point is the financial contribution that each party has made to initial payments and monthly mortgage payments.

Any payments made through the Central Provident Fund are also taken into account, said lawyer Amolat Singh.

Non-financial contributions: The court looks at who paid for the renovations; who bought the furniture, fittings or furnishings; who settled the monthly maintenance charges; and who paid the utility bills.

Also covered are expenses incurred for the welfare of the family and while looking after children or an aged or disabled family member.

Other assets

Efforts and contributions made by each party towards their acquisition: For example, for a business, the party making a claim must prove he or she has contributed to its success. One way is to show he or she has been involved in its administration or operations.

The court might not divide up these assets in the same proportion that it would the matrimonial home. For instance, the home might be split 50:50, but not the other assets.

Other factors: The court will consider the length of the marriage, the age and health of each spouse, and the couple’s standard of living during the marriage.

Dividing Assets After Divorce Easier Now

Source : The Sunday Times, March 2, 2008

Recent CPF rule changes will help divorced women get their fair share from sale of matrimonial home.

DIVORCED couples have benefited from recent changes in Central Provident Fund (CPF) rules, which allow for a more ‘equitable’ distribution of their CPF monies when they divide their matrimonial assets.

Previously, divorced women often got very little from the sale of the matrimonial home. The changes, which came into effect on Oct1 last year, are an attempt to help them get more money and not face financial hardship.

One of the changes allows a member to transfer money from his or her CPF account into the CPF account of his or her former spouse.

For instance, under the old ruling, if $100,000 had been used out of a member’s CPF account to buy the matrimonial property , the $100,000 would have had to go back into his CPF account together with the accrued interest once the property was sold. This was the case even if the court had awarded his ex-spouse half the proceeds, or $50,000. The reason was that members were not allowed to withdraw their CPF money until the age of 55.

With the change, the court can order the transfer of $50,000 from the member’s CPF account into his ex- spouse’s account.

Another change allows for the immediate transfer of a piece of property to the former spouse.

In the past, when a member had used his CPF money to buy property and the court ordered ownership to be transferred to his ex-spouse, the member had to return the due amount to his CPF account.

In cases where a wife had no money to make the refund to her ex-husband’s account, the transfer could not take place. The court might then have to order a sale of the property , which might not be ideal in a weak property climate.

With the rule change, the member or his former spouse no longer needs to put back into his CPF account whatever money had been taken out for the property .

But should the former wife wish to sell the property later, she will be required to refund her own CPF monies withdrawn, as well as what her ex-husband had withdrawn.

So far, five divorce cases handled by law firm KhattarWong have benefited from the revised rulings. So too four handled by another law firm, Characterist.