Case Details
- Citation: [2022] SGHCF 32
- Title: WEW v WEX and another appeal
- Court: General Division of the High Court (Family Division)
- Proceedings: 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
- Type of appeals: Appeal against dismissal of an application in OSM 202; and appeal against costs orders in OSM 202
- Plaintiff/Applicant: WEW
- Defendant/Respondent: WEX
- Intervener: K (wife of P; also respondent in the substantive dispute)
- Substantive applications below: FC/OSM 78/2021 (OSM 78) and FC/OSM 202/2021 (OSM 202)
- Key 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
- Judgment length: 8 pages, 2,292 words
Summary
WEW v WEX concerned a dispute within an elderly couple’s family about the validity of a lasting power of attorney (“LPA”) and whether the donor, P, had the mental capacity to execute it. P, aged 94, executed an LPA on 22 January 2021 appointing his son WEX as donee. After WEW discovered the LPA, she brought an application (OSM 202) seeking declarations that P was mentally unfit when he executed the LPA and that the LPA should be revoked. The District Judge (“DJ”) dismissed WEW’s application and awarded costs to WEX and to K (P’s wife, who intervened and opposed the application).
On appeal, Choo Han Teck J dismissed WEW’s appeal both on the merits (DCA 44/2022) and on costs (RAS 7/2022). The High Court upheld the DJ’s findings that WEW had not proved that P lacked the requisite mental capacity under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). The court placed significant weight on the evidence of a psychiatrist, Dr [D], who examined P on two occasions and certified that P was sufficiently capable of executing the LPA. The court also rejected WEW’s allegations of fraud and undue influence, finding no evidential basis to disturb the DJ’s conclusions.
In relation to costs, the High Court affirmed the discretionary nature of costs awards in family proceedings. It found that the DJ’s reasons—particularly the extensive cross-examination of Dr [D] and the overall time and effort expended—justified the costs order. The court further 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 businessman who had a trading company, “RR”, named as a reminder of the family—after the names of his son and daughter. RR carried out various trading activities, including trading in motor vehicles. P had two children: WEX (a son, aged 62) and WEW (a daughter, aged 60). P’s wife, K, was the intervener in the proceedings. The family relationship deteriorated over time, and the judgment records a history of multiple disputes between the siblings, with litigation occurring in both higher and lower courts.
In 1968, RR was incorporated. Initially, WEX was granted 50,000 shares and WEW was granted 30,000 shares. Evidence was led about the transfer of WEW’s shares to WEX at one point, but the High Court’s focus was not on the corporate history per se. Instead, the dispute centred on P’s mental capacity and the circumstances surrounding the execution of the LPA. The evidence showed that 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 removed in 2013; WEX’s position was that WEW was only a nominee director until 2013 and did not perform substantial work, with later involvement limited to assisting P with administrative tasks.
Crucially, P executed an LPA on 22 January 2021 appointing WEX as donee. The LPA was accepted and registered by the Office of the Public Guardian. Shortly thereafter, on 2 March 2021, WEW filed FC/OSM 78/2021 (“OSM 78”) seeking an order declaring P incapable of managing his affairs and appointing a deputy to make decisions for his personal welfare and property. During the course of that process, WEW discovered that P had executed the LPA in favour of WEX. WEW then filed FC/OSM 202/2021 (“OSM 202”) seeking to declare P mentally unfit at the time 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 end of the hearing, the DJ dismissed WEW’s application and awarded costs: $65,000 to WEX and $20,000 to K. By the time the appeals were heard, P had become physically and mentally incapacitated. K remained mentally alert, though she had difficulty walking. OSM 78 was adjourned pending the outcome of the appeals arising from OSM 202.
What Were the Key Legal Issues?
The primary legal issue was whether WEW had proved, to the court’s satisfaction, that P lacked the mental capacity required to execute the LPA in January 2021. This required the court to apply the MCA’s framework for assessing capacity and to determine whether P understood the decision to execute the LPA, including what the decision entailed, and whether the decision was rationally considered.
A secondary issue concerned the evidential sufficiency of WEW’s allegations of fraud and undue influence. WEW argued that WEX had defrauded or unduly influenced P into executing the LPA. The High Court had to consider whether the DJ’s findings on these allegations were supported by the evidence and whether there was any basis to interfere on appeal.
The final issue was procedural and remedial: whether the DJ’s costs orders should be disturbed. WEW appealed against the costs award (RAS 7/2022), challenging the DJ’s reasoning, including the DJ’s view that counsel’s cross-examination of Dr [D] was excessive and that the pre-trial costs estimates and litigation conduct influenced the costs outcome.
How Did the Court Analyse the Issues?
The High Court began by emphasising the MCA’s baseline assumption that “everyone is of sound mind unless proven otherwise.” This framing is significant because it places the burden on the party challenging the LPA to prove incapacity. The court treated WEW’s challenge as requiring proof that P did not have the requisite mental capacity at the time of execution. The judgment notes that it was not disputed that P had been examined by a psychiatrist, Dr [D], who certified P as sufficiently sound to execute the LPA after examinations on 2 December 2020 and 22 January 2021.
In addition to the psychiatrist’s evidence, the DJ had 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’s view was that P had some cognitive impairment that might require specialist psychiatric assessment. That assessment was then conducted by Dr [D]. On appeal, the High Court endorsed the DJ’s approach: the court treated the psychiatric certification as central evidence on capacity, particularly where the psychiatrist addressed the MCA’s capacity requirements directly.
The High Court also addressed the manner in which Dr [D] was tested in cross-examination. The judgment records that Dr [D] was subjected to “intense cross-examination” and that counsel for WEW suggested Dr [D] had “concocted evidence” in relation to the AMT score. The High Court rejected that suggestion, finding Dr [D]’s evidence “clear and direct” and “not impugned.” The court observed that there was no contrary evidence or reasonable cause to hold that the DJ’s findings were wrong. In doing so, the High Court applied an appellate restraint approach: where the trial judge has assessed credibility and weighed expert evidence, the appellate court will not interfere absent a demonstrable error.
Substantively, the High Court analysed what the MCA requires an examining doctor to determine. The court stressed that the doctor’s duty is to determine whether the patient is capable of making the decision to execute the LPA. Importantly, the patient must understand what the decision entails, and the doctor must be satisfied that the decision is rationally considered. The High Court accepted that Dr [D] had assessed P’s capacity in that manner. Although Dr [D] was aware that P had difficulty recalling names and was slow in arithmetic calculations, the psychiatrist remained professionally satisfied that P was fit to execute the LPA. The High Court treated this as consistent with the reality that mental impairment in elderly persons can be varied and does not automatically negate capacity.
WEW’s case also relied on a second expert, Dr [F], who had not examined P. The High Court held that Dr [F]’s evidence was of no assistance. The court noted that while expert evidence can sometimes be helpful even without direct examination, this was not such a case. Dr [F] had limited ability to address dementia or specific mental issues, and the expert’s opinion appeared to be based largely on what WEW told him. The High Court further observed that Dr [F] had misunderstood the nature of his appointment. As a result, the High Court found that the DJ was correct to discount Dr [F]’s evidence.
On fraud and undue influence, the High Court stated that it was left with “a stack of evidence” consisting of WEW’s claims and accusations about P’s declining mental health and alleged suspicious circumstances surrounding the execution of the LPA. The High Court agreed with the DJ that the evidence did not support findings of fraud or undue influence. It also addressed a procedural and substantive point: an undue influence claim cannot succeed without the participation of the spouse K, who was not only a supporter of P’s position but also not named as a co-defendant. Instead, K refuted WEW’s claims and took the view that WEW was the cause of disharmony in the home. The court found that K was mentally fit and close to P, reinforcing the absence of a factual foundation for WEW’s allegations.
The judgment also contained a candid assessment of the litigation’s underlying purpose. The High Court questioned what WEW stood to gain from the proceedings, noting that WEW had long given up her shares and appointments in RR and had no interest in managing P’s legal and financial affairs. The court also observed that WEW’s parents had drawn up mutual wills in 1986, and WEW conceded she would gain nothing. While such observations are not determinative of legal capacity, they contextualised the court’s assessment of credibility and motive, particularly where the evidence did not meet the legal threshold for revocation of an LPA.
Finally, the High Court addressed costs. It affirmed that costs awards are discretionary and that a litigant’s approach and behaviour can influence the range of costs. The DJ had identified two factors: (1) WEX’s pre-trial costs estimate of $127,000, contrasted with the absence of a comparable estimate from WEW; and (2) the time spent cross-examining Dr [D], with the DJ 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 DJ’s award. It also cautioned that litigants should track costs throughout the litigation rather than only at the end.
What Was the Outcome?
The High Court dismissed WEW’s appeal against the dismissal of her OSM 202 application (DCA 44/2022). The court upheld the DJ’s conclusion that WEW had not proved that P lacked the mental capacity required to execute the LPA under the MCA, and it found no basis to interfere with the DJ’s findings on fraud or undue influence.
On costs, the High Court dismissed WEW’s appeal against the DJ’s costs orders (RAS 7/2022). It ordered that costs for the appeal itself be paid by WEW to WEX and to K in the sums of $12,000 and $5,000 respectively, reflecting the general principle that costs follow the event and the court’s view that the appeal lacked merit.
Why Does This Case Matter?
WEW v WEX is a useful authority for practitioners dealing with challenges to LPAs on grounds of mental incapacity. The case reinforces the MCA’s starting point: capacity is presumed, and the challenger bears the burden of proving incapacity to the court’s satisfaction. It also illustrates how courts evaluate expert evidence where a psychiatrist has examined the donor and certified capacity in terms aligned with the MCA requirements.
The decision is particularly instructive on the evidential weight of direct expert examination. Where an expert has examined the donor and addressed the MCA’s capacity criteria—understanding, what the decision entails, and rationally considered decision-making—the court is likely to treat that evidence as decisive absent credible contrary evidence. Conversely, expert opinions that are based largely on information provided by a party, and that do not grapple with specific mental conditions, may be discounted.
From a litigation strategy perspective, the case also highlights the risks of aggressive cross-examination and prolonged proceedings in family justice matters. The High Court’s endorsement of the DJ’s costs reasoning signals that costs may increase where the court perceives that litigation tactics have unnecessarily expanded the hearing. For counsel, the case underscores the importance of focusing evidence on the legal capacity criteria rather than on broader family grievances or allegations that do not meet the legal threshold.
Legislation Referenced
Cases Cited
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.