Re BKR: Mental Capacity Act Application, Undue Influence, and Appointment of Deputies

The appellants, sisters of the third respondent (BKR), applied under the Mental Capacity Act (MCA) for a declaration that BKR lacked the capacity to make decisions regarding her property and affairs due to dementia, and sought the appointment of deputies. The first and second respondents, BKR's daughter and son-in-law, opposed the application. The Senior District Judge (SDJ) in the Family Court agreed with the appellants, but the High Court judge reversed the decision. The appellants appealed to the Court of Appeal, which addressed the interplay between mental impairment and undue influence, finding that BKR lacked capacity due to a combination of mental impairment and undue influence from the first and second respondents. The Court of Appeal allowed the appeal in part and remitted the case for further submissions on the scope of the deputyship and the appointment of deputies.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal Allowed in part

1.3 Case Type

Civil

1.4 Judgment Type

Written Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding a Mental Capacity Act application for a declaration of incapacity and appointment of deputies. Court of Appeal addresses the interplay of mental impairment and undue influence.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
AppellantsAppellantIndividualAppeal Allowed in partPartial
Re BKRRespondentIndividualFinding of Lack of CapacityLost
First RespondentRespondentIndividualAppeal Allowed in partPartial
Second RespondentRespondentIndividualAppeal Allowed in partPartial

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeYes
Chao Hick TinJustice of the Court of AppealNo
Andrew Phang Boon LeongJustice of the Court of AppealNo

4. Counsels

Counsel NameOrganization
Sarjit Singh GillShook Lin & Bok LLP
Terence Seah Yong GuanShook Lin & Bok LLP
Sarah Liyana binte YazidShook Lin & Bok LLP
Aw Wen NiWongPartnership LLP
Alvin YeoWongPartnership LLP
Monica ChongWongPartnership LLP
Chan Xiao WeiWongPartnership LLP
Lee Eng BengRajah & Tann LLP
Kelvin PoonRajah & Tann LLP
Wilson ZhuRajah & Tann LLP
Low Poh LingRajah & Tann LLP

4. Facts

  1. Appellants applied under the Mental Capacity Act for a declaration that the third respondent lacked capacity.
  2. Third respondent has a history of memory impairment dating back to at least 2005.
  3. Third respondent created a trust in October/November 2010, excluding her son and eldest daughter as beneficiaries.
  4. Third respondent gave conflicting instructions to her bankers regarding the transfer of her assets.
  5. Third respondent went to live with the first and second respondents in Hong Kong and became isolated from other family members.
  6. Medical experts disagreed on whether the third respondent suffered from MCI or dementia.
  7. The first and second respondents purchased a bungalow around the same time the trust was created and assets were being transferred.

5. Formal Citations

  1. Re BKR, Civil Appeal No 27 of 2014, [2015] SGCA 26
  2. Re BKR, , [2012] SGDC 489
  3. Re BKR, , [2013] 4 SLR 1257

6. Timeline

DateEvent
Third respondent's father passed away, leaving her and her siblings a legacy.
Clinical psychologist in Hong Kong found that the third respondent had “significant impairment” in memory.
Third respondent started taking “Prophylactic medication” for “Senile Dementia”.
Third respondent's late husband passed away.
Third respondent created two trusts with JP Morgan and UBS.
Third respondent’s sister informed NG that the sisters had noticed that the third respondent’s memory was “not so good”.
JP Morgan bankers described the third respondent as having “shown some signs of being forgetful and incoherent lately”.
Date on the Trust documents.
Option to purchase the Bungalow was granted to the first and second respondents.
Third respondent signed a limited power of attorney in favor of the first respondent concerning the operation of her UBS accounts.
Third respondent arrived in Singapore with the first respondent.
Third respondent signed some documents relating to the Trust and/or banking arrangements ancillary to the Trust.
UBS received a letter in which the third respondent stated that she wished to transfer all her assets that were kept or maintained with UBS to DBS within a week.
UBS contacted the third respondent, who had no recollection of the 8 November letter and instructed her not to act on the instructions contained there.
Third respondent wrote to UBS expressing her unhappiness at the bank’s failure to carry out her instructions in the 8 November letter.
The first and second respondents exercised the option to purchase the Bungalow.
Third respondent signed documents revoking her instructions to transfer all her assets held in UBS to DBS and revoking the limited power of attorney granted to the first respondent on 1 November.
Third respondent authorized UBS to disclose her account information to the appellants, CK, and her personal assistant.
First respondent arrived in Singapore.
Third respondent signed other documents relating to the Trust and/or the associated banking arrangements.
The first and second respondents paid the stamp duty on the Bungalow.
Third respondent left Singapore for Hong Kong in the company of the first respondent.
A letter signed by the third respondent was faxed to UBS containing fresh instructions to transfer all her assets held in UBS to DBS within a week.
CK wrote to the appellants informing them that the third respondent was in Hong Kong.
CK and NG visited the home of the first and second respondents in Hong Kong but were prevented from meeting the third respondent.
Third respondent replied to UBS reiterating her instructions in the 29 November letter.
CK showed up at an acupuncture clinic in Hong Kong where the third respondent was having treatment while accompanied by the first respondent.
Third respondent wrote a letter addressed to CK and NG castigating them for their attempt to enter the home of the first and second respondents on 1 December.
Bankers from JP Morgan met the third respondent in Hong Kong at the residence of the first and second respondents.
Bankers from UBS met the third respondent in Hong Kong at the residence of the first and second respondents.
CK met the third respondent while she shopped at a crafts shop.
Solicitors acting for the third respondent wrote identical letters to CK and NG demanding that they furnish undertakings not to harass their mother.
Third respondent had lunch with all her children and grandchildren.
Solicitors for UBS wrote to the third respondent setting out the chronology of events since 1 November.
Medical reports were submitted by two doctors certifying the third respondent's capacity to execute statutory declarations.
Medical reports were submitted by two doctors certifying the third respondent's capacity to execute statutory declarations.
Appellants commenced proceedings under the MCA.
Trial in the Family Court began with the examination of the third respondent.
Examination of the third respondent in the Family Court ended.
Third respondent met four of her experts for a clinical interview.
Decision Date

7. Legal Issues

  1. Mental Capacity
    • Outcome: The Court of Appeal found that the third respondent lacked capacity to make decisions regarding her property and affairs due to a combination of mental impairment and undue influence.
    • Category: Substantive
    • Sub-Issues:
      • Assessment of mental capacity
      • Undue influence
      • Interpretation of Mental Capacity Act
      • Causative nexus between mental impairment and inability to make decisions
  2. Undue Influence
    • Outcome: The Court of Appeal found that the third respondent was subject to the undue influence of the first and second respondents, contributing to her lack of capacity.
    • Category: Substantive
    • Sub-Issues:
      • Impact of undue influence on mental capacity
      • Assessment of undue influence in MCA proceedings
  3. Jurisdiction of the Court
    • Outcome: The Court of Appeal held that the High Court had jurisdiction to hear the matter, as there was a genuine dispute regarding the third respondent's mental capacity.
    • Category: Jurisdictional
    • Sub-Issues:
      • Substantial dispute in MCA proceedings
      • Interaction between mental capacity and undue influence

8. Remedies Sought

  1. Declaration that the third respondent lacks capacity to make decisions regarding her property and affairs
  2. Appointment of deputies to make decisions on her behalf

9. Cause of Actions

  • Application under the Mental Capacity Act for declaration of incapacity
  • Application for appointment of deputies

10. Practice Areas

  • Mental Capacity Applications
  • Elder Law
  • Estate Planning
  • Litigation

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Re BKRFamily CourtYes[2012] SGDC 489SingaporeRefers to the Senior District Judge's (SDJ) written decision at first instance, where the SDJ found that the third respondent lacked decision-making capacity.
Re BKRHigh CourtYes[2013] 4 SLR 1257SingaporeRefers to the High Court judge's judgment reversing the decision of the SDJ.
In re A (Capacity: Refusal of Contraception)Court of ProtectionYes[2011] Fam 61EnglandCited as an example where the court had regard to P’s actual circumstances in examining the issue of P’s mental capacity.
The London Borough of Redbridge v G and othersCourt of ProtectionYes[2014] EWHC 485 (COP)EnglandCited as an example where the court had regard to P’s actual circumstances in examining the issue of P’s mental capacity.
In re L (Vulnerable Adults: Court’s Jurisdiction)Court of AppealYes[2013] Fam 1EnglandDiscusses the legislative history of the UK Mental Capacity Act and the exclusion of vulnerable adults from its scope.
A Local Authority v DL and othersHigh CourtYes[2011] EWHC 1022 (Fam)EnglandDiscusses the court’s inherent jurisdiction over “vulnerable” individuals.
Wandsworth Clinical Commissioning Group v IA and anotherCourt of ProtectionYes[2014] EWHC 990 (COP)EnglandDiscusses the interpretation of Section 3(3) of the Mental Capacity Act regarding practicable steps to help a person make a decision.
York City Council v C and anotherCourt of AppealYes[2014] 2 WLR 1EnglandDiscusses the causative nexus required between mental impairment and the inability to make decisions under the Mental Capacity Act.
Regina v Cooper (Gary Anthony)House of LordsYes[2009] 1 WLR 1786EnglandDiscusses the Law Commission report which informed the UK MCA envisaged that the statute would cover those who could understand the nature and effects of a decision to be made but who were prevented by mental disability from using that information in the decision-making process.
Cheshire West and Chester Council v P and anotherHigh CourtYes[2011] EWHC 1330 (Fam)EnglandDiscusses the inquisitorial nature of Court of Protection proceedings.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2006 Rev Ed)

14. Applicable Statutes

Statute NameJurisdiction
Mental Capacity Act (Cap 177A, 2010 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Mental Capacity Act
  • Undue influence
  • Mild Cognitive Impairment
  • Dementia
  • Executive function
  • Trust
  • Deputies
  • Litigation representative
  • Brain scans
  • Cognitive tests

15.2 Keywords

  • Mental Capacity Act
  • Undue influence
  • Dementia
  • Elderly
  • Trust
  • Singapore
  • Court of Appeal

17. Areas of Law

Area NameRelevance Score
Mental Capacity Law95
Undue Influence80
Trust Law75
Family Law40
Evidence Law35
Banking and Finance30
Duty to Account25
Succession Law20
Corporate Law15

16. Subjects

  • Mental capacity
  • Undue influence
  • Elderly law
  • Trusts
  • Family disputes