NG CHEE TIAN & ANOR v NG CHEE PONG & 2 ORS

Facts

Mr Ng Piak Mong, a businessman who founded East Asia Trading Company (Pte) Ltd (EATCO) and traded as Buan Mong Heng, died on 11 May 2021. His will dated 26 July 2017 appointed his eldest son, Ng Chee Pong, and eldest daughter, Ng Phek Cheng, as executors and trustees, and divided the estate in shares among his children and grandchildren. Probate was granted on 18 October 2021 with a schedule of assets including a house at 6 Seletar Close, shares, and bank accounts, among them joint RHB accounts in Singapore and Malaysia held with the daughter.

Two other sons, Ng Chee Tian and Ng Chee Seng, sued the executors in Originating Claim No 499 of 2023 (the claim against EATCO was discontinued). They alleged that the executors misappropriated estate assets and failed to account for and get in others. The claims concerned the Malaysian share and bank accounts, a $100,000 EATCO dividend first paid into the elder son's personal account, withdrawals from estate accounts after probate, assets said to be missing from the schedule (including business stock, watches, jewellery and the contents of a safe at the house), and the delayed sale of 6 Seletar Close, where the elder son lived. The executors accepted the claimants were entitled to a common account but said they needed time to prepare one.

Issues

1. Whether particular assets, including the Malaysian share and joint bank accounts and the business stock, formed part of the estate.
2. Whether the executors' withdrawals and handling of the $100,000 dividend were breaches for which they must repay or compensate the estate.
3. Whether postponing the sale of 6 Seletar Close and leaving the safe unopened were breaches of duty, and what orders should follow.
4. Whether the claimants were entitled to an account on a wilful default basis.

Holding

The High Court allowed the claim in part. It ordered the daughter to repay RM147,000 and $20,412.99 withdrawn from the joint accounts, both executors to repay $160,017.87 withdrawn from the estate account, each with interest at 5.33% per annum, and the elder son to compensate the estate for lost interest on the dividend. It directed the sale of 6 Seletar Close and distribution of the proceeds within six months, and ordered an account on a wilful default basis. Claims to the daughter's share account, the business stock and occupation damages failed.

Reasoning

On the assets, the father's own share account held only shares in two delisted companies, but it was not in the schedule, so the court declared it part of the estate. Shares in the daughter's own trading account, though funded by the father, were covered by the presumption of advancement, which the claimants did not displace. The daughter agreed the joint RHB accounts were estate assets; in any event a presumed resulting trust would have displaced survivorship, given the father's sole control and her late, unconvincing claim of a gift. The claimants accepted the business had been transferred to the elder son in 2014, and they did not prove its stock stayed with the father.

On withdrawals, the burden was on the executors to show they were authorised. The daughter moved the joint account sums into her own account, and the executors offered only bare assertions of estate expenses, so the claimants could falsify those entries. Keeping the dividend in his personal account breached the elder son's duty not to mix estate funds with his own; his explanation was contradicted by the estate account having been opened in May 2022.

On the house, postponing the sale pending the case was misguided but, unlike the trustee in Foo Jee Seng, the executors were willing to sell, so no breach was found. A sale was still expedient. Leaving the safe unopened was a breach of the duty to call in assets. No breach supporting occupation damages had been pleaded.

Those breaches entitled the claimants to an account on a wilful default basis, excluding assets found not to be the estate's.

From the judgment