There are many holdings that can be gleaned from the Court of Appeal case of Cheo Yeoh & Associates LLC and another v AEL and others [2015] 4 SLR 325 (“Cheo Yeoh”). 

 

Brief facts of the case:

The deceased had executed two wills. One in 1990 and another in 2005. His supposed intention was for the latter will in 2005 replace the earlier one in 1990. He died in 2010.

After he died, the executor stated in the 2005 will attempted to obtain the grant of probate. However, it was discovered that the 2005 will was invalid as there was only one witness. For a will to be valid, there had to be at least 2 witnesses (section 6 of the Wills Act 1838). Therefore, the deceased died without a valid will. Hence his estate would be distributed via the laws of intestacy. The result of such a distribution was that certain beneficiaries would obtain less than what they would have under the 2005 will. These beneficiaries sued the lawyers who were engaged to draft and execute the 2005 will.

The High Court found the lawyers liable for the difference between what the beneficiaries would have inherited under the 2005 will and what the inherited under the laws of intestacy. The lawyers appealed to the Court of Appeal. One of their points of contention was that the the old will was still valid based on the doctrine of conditional revocation.

 

Presumption of revocation

If the will is:

  • missing at the time of the testator’s death or
  • was found torn or mutilated in the testator’s possession,

a presumption of revocation would apply (Cheo Yeoh at [50]-[53]).

This means that if at the time of the testator’s death, the will cannot be found or it was found to be torn or mutilated in the testator’s possession, then it is presumed that the testator had revoked the will.

 

The presumption of revocation can be rebutted by the doctrine of conditional revocation

The presumption of revocation can be rebutted by the doctrine of conditional revocation which applies in Singapore (Cheo Yeoh at [56]).

This doctrine only applies if the testator intended for certain conditions to be met before his previous will was revoked. For an applicant to show that the doctrine of conditional revocation applies, the applicant had to show that the revocatory act of the testator was referable, wholly and solely to his intention of setting up some other testamentary paper (Cheo Yeoh at [64]).

(An example of this would be the testator stating in his new will that only upon the valid execution of that new will would the old will be revoked. This effectively sets a condition that the old will would only be revoked if the new will were validly executed.)

 

In the case of Cheo Yeoh, the lawyers could not show that the revocatory act of the testator with regards to his 1990 will was referable, wholly and solely to his intention of setting up the 2005 will. Therefore the doctrine of conditional revocation did not apply to “revive” the 1990 will.

 

Presumption against intestacy

The court held that the presumption against intestacy is a rule of construction employed by the courts in interpreting the meaning of the will when the intention of the testator was unclear and that unclarity could lead to intestacy (Cheo Yeoh at [82]). It follows that for this rule to apply, there had to be a valid will.

The presumption against intestacy will be applied when:

  1. The testator’s intention is unclear; and
  2. The presumption of revocation has not arisen or been rebutted by the doctrine of conditional revocation (Cheo Yeoh at [85]).

Due to the presumption, the burden of proof lay with the lawyers to show that the doctrine of conditional revocation would apply to rebut the presumption. However, they were unable to adduce the required evidence to rebut the presumption. Therefore, their appeal failed.