Case Details
- Title: WEW v WEX
- Citation: [2022] SGHCF 32
- Court: High Court (Family Division)
- Case Type: General Division of the High Court (Family Division) — District Court Appeal No 44 of 2022 and Registrar’s Appeal from the Family Justice Courts No 7 of 2022
- Date of Decision: 30 December 2022
- Judges: Choo Han Teck J
- Hearing Dates: 8, 28 November 2022; 19 December 2022
- Procedural Posture: Appeal against dismissal of an application in the Family Justice Courts (OSM 202) and appeal on costs (RAS 7)
- Plaintiff/Applicant: WEW
- Defendant/Respondent: WEX
- Key Applications Below:
- FC/OSM 78/2021 (“OSM 78”): application to declare P incapable of managing his affairs and to appoint a deputy for personal welfare and property
- FC/OSM 202/2021 (“OSM 202”): application to declare P mentally unfit when he executed an LPA and to revoke the LPA
- Legal Areas: Mental capacity; lasting powers of attorney; deputyship; family litigation; costs
- Statutes Referenced: Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”)
- Cases Cited: [2022] SGHCF 32 (as provided in metadata)
- Judgment Length: 8 pages, 2,292 words
Summary
In WEW v WEX ([2022] SGHCF 32), the High Court (Family Division) dismissed a daughter’s appeal against the District Judge’s refusal to revoke her father’s lasting power of attorney (“LPA”). The LPA had been executed by the father (“P”) in favour of his son (“WEX”) as donee, after which the Office of the Public Guardian accepted and registered it. The appellant (“WEW”) sought to overturn the LPA by alleging that P lacked mental capacity when he executed it, and further alleged fraud and undue influence by WEX.
The High Court upheld the District Judge’s findings that the appellant had not proved, to the court’s satisfaction, that P lacked the requisite mental capacity under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). Central to the court’s reasoning was the evidence of a psychiatrist who had examined P on two dates and certified that P was sufficiently capable of executing the LPA. The High Court found the appellant’s expert evidence unhelpful because it was not based on an examination of P and did not engage with the specific mental issues alleged. The court also rejected the fraud and undue influence allegations, noting that the appellant’s evidence amounted to claims and accusations rather than proof.
Separately, the High Court dismissed the appeal on costs. It affirmed the discretionary nature of costs awards in the Family Justice Courts and concluded that the District Judge’s costs order was justified by the time and effort spent, particularly the extensive cross-examination of the psychiatrist. The High Court ordered costs for the appeal itself, applying the general principle that costs follow the event.
What Were the Facts of This Case?
P was a 94-year-old businessman. He had a son, WEX (62), and a daughter, WEW (60). P’s wife, “K”, was an intervener in the proceedings. The family’s disputes were not isolated; the judgment notes a history of extensive litigation involving the siblings, with multiple court proceedings “high and low”. Against this backdrop, the present case concerned P’s decision-making capacity and the governance of his personal welfare and property.
On 22 January 2021, P executed an LPA appointing WEX as the donee. The LPA was accepted and registered by the Office of the Public Guardian. Shortly thereafter, on 2 March 2021, WEW filed an application in the family courts (OSM 78) seeking a declaration that P was incapable of managing his affairs and requesting that she be appointed as deputy to make decisions for P’s personal welfare and property. This application was premised on WEW’s view that P was mentally incapable.
After filing OSM 78, WEW discovered that P had executed the LPA in favour of WEX. In response, WEW filed a second application (OSM 202) seeking to declare that P was mentally unfit when he executed the LPA and to revoke the LPA. OSM 202 was heard over four days, with witnesses subjected to lengthy cross-examination. At the conclusion of the hearing, the District Judge dismissed WEW’s application and awarded costs to WEX and to K.
By the time the appeals were heard, P had become physically and mentally incapacitated. K, however, remained mentally alert though she had difficulty walking. The High Court observed that OSM 78 had been adjourned pending the outcome of the appeals against the orders made in OSM 202. Thus, the central contest in the appeal was whether the LPA should stand or be revoked on the basis of alleged incapacity at the time of execution, and whether the costs order was appropriate.
The judgment also provides relevant context about the family business and the siblings’ relationship. P had a trading company, “RR”, named as a reminder of the family (“RR” after the names of his son and daughter). RR engaged in trading activities, including motor vehicle trading. Initially, WEX was granted 50,000 shares and WEW 30,000 shares. Evidence was heard about a transfer of WEW’s shares to WEX at one point. WEX later took over management of RR and continued to do so. WEW claimed she was company secretary between 2007 and 2013 and a director from 1996 until removal in 2013. WEX’s position was that WEW was only a nominee director until 2013 and did not perform substantial work; thereafter, her involvement was minimal and limited to simple administrative tasks.
In January 2019, WEX became managing director. Two months later, P and K ceased to be directors. By WEW’s own account, her involvement in RR ended in 2019. The High Court’s narrative suggests that the siblings’ bitterness and conflict were deeply rooted, and that the litigation was not merely about P’s welfare but also about long-standing family dynamics. The court ultimately treated the evidence of acrimony as insufficient to establish fraud or undue influence in the execution of the LPA.
What Were the Key Legal Issues?
The first key issue was whether WEW had proved that P lacked mental capacity to execute the LPA in January 2021. Under the MCA, the starting point is that a person is presumed to have capacity unless proven otherwise. The appellant therefore bore the burden of proving, to the court’s satisfaction, that P did not have the requisite capacity at the time he executed the LPA.
Within this issue, the court had to consider what “mental capacity” means in the context of executing an LPA. The MCA requires that the person understand the nature and effect of the decision, including what it entails, and that the decision is made in a rationally considered manner. The court therefore had to evaluate the medical evidence and determine whether P met these statutory requirements when he executed the LPA.
The second key issue was whether WEW could establish fraud and/or undue influence in the execution of the LPA. Fraud and undue influence are serious allegations that require cogent evidence. The court had to assess whether the appellant’s evidence—particularly the circumstances surrounding the LPA’s execution and the siblings’ relationship—amounted to proof of improper conduct by WEX.
The third issue related to costs. WEW appealed against the District Judge’s costs orders, which included an award of $65,000 to WEX and $20,000 to K. The High Court had to determine whether the District Judge had erred in principle or whether the costs award was justified in the exercise of discretion, including whether the appellant’s litigation conduct warranted a higher costs outcome.
How Did the Court Analyse the Issues?
The High Court began by emphasising the MCA’s “commonsense assumption” that everyone is of sound mind unless proven otherwise. This framing is significant: it places the evidential and legal burden on the party challenging the LPA. The court therefore treated WEW’s application as requiring proof that P did not have the mental capacity to execute the LPA at the relevant time.
It was not disputed that P had been examined by a psychiatrist, Dr [D]. Dr [D] examined P on 2 December 2020 and again on 22 January 2021, and certified that P was sufficiently sound to execute an LPA. The District Judge also considered evidence from a general practice doctor who examined P on 20 November 2020 and administered the Abbreviated Mental Test (“AMT”), scoring P at 6 out of 10. The general practitioner opined that P had some cognitive impairment that might require specialist psychiatric assessment, which was then undertaken by Dr [D].
On appeal, the High Court reviewed the District Judge’s assessment of Dr [D]’s evidence. Dr [D] was subjected to “intense cross-examination” in the proceedings below, and counsel for WEW suggested that Dr [D] had concocted evidence, including an assertion that Dr [D] was aware of the AMT score. The High Court rejected these insinuations. It found Dr [D]’s evidence “clear and direct” and “not impugned”, and held that there was no contrary evidence or reasonable cause to disturb the District Judge’s findings.
The court acknowledged that a 93-year-old may have mental impairments such as loss of attention or memory. However, it treated these as general facts of life rather than proof of incapacity. The court stressed that the nature and extent of mental capacity is “completely subjective” and must be assessed based on the patient before the examining doctor. Although Dr [D] was aware that P had difficulty recalling names and was slow in arithmetic calculations, Dr [D] was professionally satisfied that P was fit to execute the LPA. The High Court therefore treated the medical evidence as directly addressing the statutory question under the MCA.
In explaining why Dr [D]’s assessment was persuasive, the High Court focused on the duties of the examining doctor under the MCA. The doctor must determine whether the patient is capable of making the decision to execute the LPA, and the patient must understand what the decision entails. The decision must also be rationally considered. The High Court held that Dr [D] was unequivocal that P was mentally capable, and that the psychiatrist’s professional opinion satisfied the conditions required by the MCA.
WEW called another expert, Dr [F], to support the claim that P was mentally incapable. The High Court found Dr [F]’s evidence unhelpful. It noted that Dr [F] had not examined P and did not provide a sufficiently grounded assessment of P’s mental state. The court also observed that Dr [F] had little to say about dementia or specific mental issues that would require the court to evaluate the evidence differently. Further, Dr [F] admitted that he misunderstood the nature of his appointment by WEW. In these circumstances, the High Court agreed with the District Judge that Dr [F]’s opinion was based largely on what WEW told him rather than on an independent evaluation of P.
After addressing the medical evidence, the High Court turned to WEW’s allegations of fraud and undue influence. It characterised WEW’s case as a “stack of evidence” consisting of claims and accusations about suspicious circumstances. The District Judge had examined this evidence and was unable to find that WEX defrauded or unduly influenced P. The High Court likewise found nothing in the evidence or submissions that justified a different conclusion.
Importantly, the court also addressed a procedural and substantive requirement for undue influence. It stated that an undue influence claim cannot succeed without K supporting it or being named a co-defendant. K did not support WEW’s allegations; instead, K refuted them and believed that WEW was the cause of disharmony in the home. The High Court treated K’s mental fitness and closeness to P as relevant to the credibility of the undue influence narrative, particularly where the allegation depended on the dynamics of the household and the influence exerted by WEX.
The High Court further questioned the practical motivation behind the proceedings. It found it “baffling” what WEW stood to gain. WEW had long given up her shares and appointments in RR and was not interested in managing P’s legal and financial affairs. She also conceded that mutual wills had been drawn up in 1986 and that she stood to gain nothing from them. The court noted that WEW’s stated purpose was to look after P’s physical well-being, but it observed that she had lived with P until she commenced the action and shortly thereafter sought revocation of the LPA. The court concluded that the appeal had no meaningful point given the lack of legal and factual merit.
In assessing the video evidence tendered by WEW, the High Court treated it as showing irreparable acrimony between the siblings rather than proof of fraud or undue influence. Even if WEX’s aggressive behaviour occurred, the court considered it likely to have arisen from frustration and the culmination of a broken relationship, not from improper conduct in the execution of the LPA.
On costs, the High Court upheld the District Judge’s approach. It reiterated that costs are discretionary and that a litigant’s approach and behaviour may influence the quantum. The District Judge had identified two factors: (1) WEX’s pre-trial costs estimate of $127,000, and (2) the time spent cross-examining Dr [D], with the District Judge expressing displeasure at what she perceived as an excessive attack on the psychiatrist. The High Court agreed that the time and effort involved justified the award and cautioned that litigants should monitor costs throughout the litigation rather than at the end.
Finally, the High Court applied the general principle that costs follow the event. Since WEW’s appeal failed, it ordered costs for the appeal itself, despite the absence of detailed submissions on costs by counsel. The court ordered $12,000 to be paid by WEW to WEX and $5,000 to be paid by WEW to K.
What Was the Outcome?
The High Court dismissed WEW’s appeal against the District Judge’s dismissal of OSM 202. It found no error in the District Judge’s conclusion that WEW had not proved P’s lack of capacity to execute the LPA under the MCA, nor that WEX had defrauded or unduly influenced P. The LPA therefore remained effective, and the adjournment of OSM 78 pending the outcome of OSM 202’s appeal meant that the capacity challenge to the LPA did not succeed.
On costs, the High Court upheld the District Judge’s costs orders and further ordered costs for the appeal: $12,000 to WEX and $5,000 to K, payable by WEW. The practical effect was that WEW not only failed to revoke the LPA but also bore significant costs consequences for pursuing the appeal.
Why Does This Case Matter?
WEW v WEX is a useful authority for practitioners dealing with challenges to LPAs on the ground of mental incapacity. It reinforces the MCA’s presumption of capacity and the burden on the challenger to prove incapacity to the court’s satisfaction. The decision also illustrates how courts evaluate medical evidence in LPA disputes: contemporaneous psychiatric assessment, grounded in the statutory test, will carry substantial weight, particularly where the expert evidence directly addresses the patient’s understanding, appreciation, and rational decision-making.
The case also provides guidance on the limits of expert evidence. Where an expert has not examined the patient and does not engage with the specific mental issues alleged, the court may find the evidence of limited assistance. For litigators, this underscores the importance of ensuring that expert testimony is methodologically sound and tailored to the statutory question under the MCA.
On undue influence and fraud, the judgment demonstrates that allegations must be supported by credible evidence rather than by the existence of a strained relationship or aggressive conduct in the household. The court’s reasoning suggests that family acrimony, while relevant context, is not a substitute for proof that the LPA was procured improperly. Additionally, the court’s discussion of the role of K in an undue influence claim highlights the procedural and evidential importance of the household participants in such disputes.
Legislation Referenced
- Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”)
Cases Cited
- [2022] SGHCF 32 (as provided in metadata)
Source Documents
This article analyses [2022] SGHCF 32 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.