WKR v WKQ

Facts

A man born in Mulhouse, France died intestate in Málaga, Spain on 10 January 2021. The appellant was his father (WKR). The respondent, WKQ, said she was the deceased's wife, which the father disputed; she had two children with the deceased, and he had two other children with another woman.

In the UAE, the father obtained a decree from the Ajman Federal Court on 27 September 2021 dividing the estate among the father, the deceased's mother, WKQ and the four children; WKQ's appeal there was dismissed. Meanwhile, without notice to the father, WKQ applied ex parte in Vanuatu, relying on the Vanuatu citizenship she and the deceased had acquired, and obtained letters of administration on 10 November 2021 under which she and her two children took the whole estate. On 22 February 2022, again without notice, she applied in HCF/P 112/2022 to reseal the Vanuatu grant in Singapore. The father entered a caveat (HCF/CAVP 11/2022) and took out HCF/SUM 123/2022 seeking a stay until proceedings challenging the grant in Vanuatu ended. His Vanuatu claim was struck out, and he later discontinued an appeal there. On 24 November 2022 the judge dismissed the stay and granted the resealing order. The father appealed against the order in the caveat proceedings (AD/CA 107/2022) and against the resealing order (AD/CA 108/2022).

Issues

1. Whether the judge had disposed of a contested probate matter summarily, so that the resealing order and the effective removal of the caveat could be appealed
2. Whether there were triable issues as to whether the deceased was domiciled in Vanuatu at his death under s 47(4) of the Probate and Administration Act 1934
3. Whether allegations that the Vanuatu grant was obtained by fraud could engage the court's discretion to refuse resealing, and whether they were triable

Holding

The Appellate Division allowed both appeals on 21 August 2023 and set aside the judge's orders. It directed WKQ to file a writ in Singapore by 21 September 2023 to prove her entitlement to resealing, with Division 2 of Part 14 of the Family Justice Rules 2014 to apply. Each party was to bear its own costs of the appeals and of the hearing below.

Reasoning

Once the father entered an appearance and issued a summons for directions, the matter was deemed contested under r 239(16) of the Family Justice Rules, and under r 240 the judge could only dispose of it summarily or direct a probate action. Although the judge thought he was dealing with an ex parte application, he had in substance decided it summarily inter partes, which also caused the caveat to cease to have effect, so both orders were appealable. Summary disposal should follow the summary judgment standard of whether there is a real question to be tried.

On domicile, WKQ bore the burden. Applying Peters Roger May v Pinder Lillian Gek Lian [2009] 3 SLR(R) 765, the court noted that the deceased's UAE resident identity card was still valid at his death; an immigration record signed by the Vanuatu immigration director was prima facie evidence that he and WKQ had never entered Vanuatu, which she did not challenge; she gave no address or proof of the Port Vila home she said they shared, and admitted he had no bank account there; and a French consular birth certificate recorded them as domiciled in Spain in 2017. Domicile could not be decided summarily.

Although a foreign court of domicile's decision is usually conclusive, the word "may" in s 47(1) gives a discretion to refuse resealing in special circumstances. By analogy with refusing to enforce foreign judgments procured by fraud, as in Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515 and Ong Han Nam v Borneo Ventures Pte Ltd [2021] 1 SLR 1248, the same approach should apply to resealing. The father's fraud allegations had not been tested in Vanuatu, where his challenge failed on procedure. WKQ could not produce a Spanish marriage certificate, gave no answer to the alleged defects in the Vanuatu extract or to a Spanish certificate indicating no marriage had been celebrated, and the effect of the father's own earlier acknowledgment in the UAE was unclear. Her marital status was therefore triable, as were the allegations of non-disclosure to the Vanuatu court.

Costs were not awarded because neither side properly assisted the judge, and the father's confusing framing of his caveat and summons had added complexity.

From the judgment