Ng Foong Yin v Koh Thong Sam: Accounting of Estate on Basis of Wilful Default

In Ng Foong Yin v Koh Thong Sam, the High Court of Singapore heard a claim by Ng Foong Yin, a beneficiary of the estate of Mdm Tan Tian Kwee, against Koh Thong Sam, the executor and trustee of the estate, for an account of the estate taken on the basis of wilful default. The court, led by Judith Prakash J, found in favor of the plaintiff, ordering Koh Thong Sam to provide a full accounting of his administration of Mdm Tan's estate, including what was due from the estate of Koh Thong Tee, taken on the footing of wilful default. The court also ordered Koh Thong Sam to pay the plaintiff such sums of money as may be found due to her under the terms of Mdm Tan’s will and to personally pay the plaintiff’s costs of the action.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Judgment for Plaintiff

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Beneficiary Ng Foong Yin sues executor Koh Thong Sam for an account of Mdm Tan's estate based on wilful default. The court ordered a full accounting on the basis of wilful default.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Ng Foong YinPlaintiffIndividualJudgment for PlaintiffWon
Koh Thong SamDefendantIndividualAccount of Estate OrderedLost

3. Judges

Judge NameTitleDelivered Judgment
Judith PrakashJudgeYes

4. Counsels

Counsel NameOrganization
Edwin Lee Peng KhoonEldan Law LLP
Lai Yan TingEldan Law LLP
Ng Chin Foong CharlesEldan Law LLP
Lim Hong KianLim & Bangras

4. Facts

  1. Mdm Tan died in 2010, leaving a will appointing the defendant, Koh Thong Sam, as executor and trustee.
  2. The plaintiff, Mdm Ng Foong Yin, is a daughter-in-law of Mdm Tan and a beneficiary of her estate.
  3. The plaintiff claimed the defendant failed to properly account for a debt owed to Mdm Tan by the estate of her son, Koh Thong Tee.
  4. The defendant claimed the debt was recovered during Mdm Tan's lifetime and either spent or gifted to him.
  5. The court found the defendant's evidence unreliable and his accounts suspect.
  6. The court found the defendant was in wilful default of his duties as trustee.

5. Formal Citations

  1. Ng Foong Yin v Koh Thong Sam, Suit No 426 of 2011, [2013] SGHC 87

6. Timeline

DateEvent
Koh Thong Chye died
Koh Thong Tee died
Mdm Tan made her will
Mdm Tan made a statutory declaration
Probate of Koh Thong Tee’s will was granted to the defendant
Shares re-registered in the defendant’s name
Koh Thong Meng died
Mdm Tan Tian Kwee died
Schedule of Assets of the estate of Mdm Tan filed in court
Probate of Mdm Tan’s will was granted to the defendant
Defendant's lawyer's explanation to the plaintiff
Suit filed
Judgment reserved

7. Legal Issues

  1. Breach of Trust
    • Outcome: The court found the defendant in wilful default of his duties as trustee and ordered a full accounting of the estate.
    • Category: Substantive
    • Sub-Issues:
      • Wilful Default
      • Failure to Account
      • Improper Distribution of Assets
    • Related Cases:
      • [2001] NSWSC 6
      • [2005] SGCA 4
  2. Entitlement to Accounting
    • Outcome: The court held that the plaintiff, as a beneficiary, was entitled to an accounting of the estate administration.
    • Category: Procedural
    • Sub-Issues:
      • Beneficiary's Right to Information
      • Sufficiency of Accounts Provided
    • Related Cases:
      • [1998] Ch 241
  3. Non-Joinder of Parties
    • Outcome: The court held that the plaintiff was entitled to act severally in bringing the action for accounts and there was no requirement for her to join the other beneficiaries in order to proceed with the action.
    • Category: Procedural
    • Sub-Issues:
      • Necessity of Joining All Beneficiaries
      • Impact on Declaratory Relief
    • Related Cases:
      • [2002] 2 SLR(R) 359
      • [2012] 1 SLR 105
      • [2012] 1 SLR 733
      • [2006] 1 SLR 112

8. Remedies Sought

  1. Full Accounting of Estate
  2. Administration of Estate by Court-Appointed Administrator
  3. Payment of Sums Due to Beneficiary

9. Cause of Actions

  • Breach of Trust
  • Failure to Account

10. Practice Areas

  • Trust Litigation
  • Estate Litigation

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Regenthill Properties Pte Ltd v MCST Plan No. 2192N/AYes[2002] 2 SLR(R) 359SingaporeCited regarding waiver of irregularity due to taking fresh steps in proceedings.
Oh Chun Moy & Ors v Oh Bee BeeN/AYes[2012] 1 SLR 105SingaporeCited to support the argument that the merits of a case can be decided even if other beneficiaries are not joined in the proceedings.
Ong Wui Swoon v Ong Wui TeckN/AYes[2012] 1 SLR 733SingaporeCited to support the argument that the merits of a case can be decided even if other beneficiaries are not joined in the proceedings.
Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and Another AppealN/AYes[2006] 1 SLR 112SingaporeCited for the requirement that any person whose interests might be affected by a declaration should be before the court.
London Passenger Transport Board v MoscropN/AYes[1942] AC 332N/ACited for the rationale of requiring all interested parties to be before the court when a declaration is sought.
Glazier v Australian Men’s Health (No 2)N/AYes[2001] NSWSC 6AustraliaCited for the law relating to an account of administration on the basis of wilful default.
Ong Jane Rebecca v Lim Lie Hoa and OthersCourt of AppealYes[2005] SGCA 4SingaporeCited as an authority showing the difference between a common account and an account on the basis of wilful default.
Partington v ReynoldsN/AYes[1858] EngR 461N/ACited for the principle that an order for an account on the basis of wilful default requires the defendant to account not only for what he or she has received, but also for what he or she might have received had it not been for the default.
Armitage v NurseN/AYes[1998] Ch 241N/ACited for the principle that the rights of a beneficiary to monitor and protect his interest by obtaining accounts from the trustee is at the very core of the trust concept.
Re TebbsN/AYes[1976] 1 All ER 858N/ACited for the test of whether the past conduct of the trustees gives rise to a reasonable prima facie inference that other breaches of trust have occurred.
Russell v RussellN/AYes[1891] 17 VLR 729N/ACited regarding the test of whether the past conduct of the trustees gives rise to a reasonable prima facie inference that other breaches of trust have occurred.
Pit v CholmondeleyN/AYes[1754] EngR 174N/ACited regarding settled accounts.
Sleight v LawsonN/AYes[1857] Eng R 462N/ACited for the rule that in order to obtain an inquiry on the basis of wilful neglect and default against an executor or trustee, it is necessary for the plaintiff to allege and prove at least one act of wilful neglect or default.
Coope v CarterN/AYes(1852) 2 De G McN & G 297N/ACited for the rule that, if wilful neglect or default was alleged in the plaintiff's bill but the facts only raised a case of suspicion in the mind of the Court without proving any instance of such default, the Court could direct a preliminary inquiry to clarify the particular facts alleged.

13. Applicable Rules

Rule Name
Order 15 r 4(2) of the Rules of Court
Order 15 r 6(1) of the Rules of Court
Order 80 r 3 of the Rules of Court

14. Applicable Statutes

Statute NameJurisdiction
Estate Duty Act (Cap 96, 2005 Rev Ed)Singapore
Rules of Court (Cap 322, R 5, 2006 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Wilful Default
  • Executor
  • Trustee
  • Beneficiary
  • Estate
  • Accounting
  • Inter Vivos Gift
  • Residuary Estate

15.2 Keywords

  • trust
  • estate
  • accounting
  • wilful default
  • beneficiary
  • executor

17. Areas of Law

Area NameRelevance Score
Estate Administration95
Trust Law70
Succession Law60
Civil Procedure30

16. Subjects

  • Trusts
  • Estates
  • Civil Litigation