Case Details
- Citation: [2022] SGHCF 32
- Title: WEW v WEX and another appeal
- Court: High Court of the Republic of Singapore (Family Division)
- Date of decision: 30 December 2022
- Hearing dates: 8, 28 November 2022; 19 December 2022
- Judges: Choo Han Teck J
- Proceedings: 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
- Appellant: WEW
- Respondent: WEX and another (intervener)
- Intervener: K
- District Court / Registrar’s Appeal references: HCF/DCA 44/2022 (DCA 44); HCF/RAS 7/2022 (RAS 7)
- Underlying applications in Family Justice Courts: FC/OSM 78/2021 (OSM 78); FC/OSM 202/2021 (OSM 202)
- Legal areas: Mental Disorders and Treatment — Legal capacity; Family Law — Costs
- Key instrument: Lasting Power of Attorney (“LPA”) dated 22 January 2021, donee: WEX
- Statutes referenced: Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”)
- Cases cited: [2022] SGHCF 32 (no other cases identified in the provided extract)
- Judgment length: 8 pages, 2,228 words
Summary
In WEW v WEX and another appeal [2022] SGHCF 32, the High Court (Family Division) dismissed a daughter’s attempt to overturn findings that her elderly father, “P”, had mental capacity to execute a lasting power of attorney (“LPA”) appointing her brother, “WEX”, as donee. The appeal arose from the District Judge’s dismissal of WEW’s application (OSM 202) seeking declarations that P was mentally unfit at the time of executing the LPA and seeking revocation of the LPA.
The High Court also dealt with a separate appeal on costs (RAS 7). The District Judge had awarded substantial costs to WEX and to P’s wife, “K”, after a lengthy hearing involving extensive cross-examination of a psychiatrist. The High Court held that the costs award fell within the proper discretionary range, emphasising that a litigant who wages a prolonged battle must keep track of costs and that the appellant’s litigation approach justified the outcome.
What Were the Facts of This Case?
P was 94 years old at the time of the High Court hearing. His wife, K (who later intervened), was 89. P and K had two children: a son, WEX (62), and a daughter, WEW (60). The family dispute was not limited to the LPA; the judgment records that there had been “many family disputes” involving the siblings, with proceedings in courts at different levels. The High Court’s narrative suggests that the litigation context was marked by deep and persistent acrimony, which the trial judge had found difficult to reconcile with any plausible rescue of the relationship.
On 22 January 2021, P executed an LPA 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 an application in the Family Justice Courts (OSM 78) seeking an order that P was incapable of managing his affairs and that she be appointed as deputy to make decisions relating to P’s personal welfare and property. This application was made before WEW discovered that P had already executed the LPA in favour of WEX.
Upon discovering the existence of the LPA, WEW filed a second application (OSM 202) seeking declarations that P was mentally unfit when he executed the LPA and seeking revocation of 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: $65,000 to WEX and $20,000 to K.
By the time the appeals were heard, P had become physically and mentally incapacitated. K was mentally alert but had difficulty walking. The High Court noted that OSM 78 had been adjourned pending the outcome of the appeals against the orders made in OSM 202. Thus, the central contest was whether P had the requisite mental capacity to execute the LPA in January 2021, and whether the District Judge’s findings should be disturbed.
The judgment also provides background on the family’s business affairs. P had a trading company, “RR”, named as a reminder of the family’s earlier harmony. RR carried out trading activities, including trading motor vehicles. Initially, WEX held 50,000 shares and WEW held 30,000 shares. Evidence was heard about the transfer of WEW’s shares to WEX at one point, though the High Court’s extract indicates that the broader dispute was not confined to shareholding. WEX later took over management of RR and continues to do so.
WEW claimed she was company secretary between 2007 and 2013 and a director from 1996 until removal in 2013. WEX’s account was that WEW was only a nominee director until 2013 and did not perform substantial work. In January 2019, WEX became managing director, and two months later P and K ceased to be directors. By WEW’s own account, her involvement in RR ended in 2019. These facts were relevant mainly as part of the overall narrative of the siblings’ relationship and the alleged motives behind the litigation.
WEW’s case, as reflected in the extract, was that P’s declining mental health and certain circumstances surrounding the execution of the LPA indicated fraud and undue influence by WEX. WEX denied these allegations and pointed to K’s position. K refuted WEW’s claims and, according to the High Court, was close to P and mentally fit. The High Court also observed that WEW’s litigation objectives appeared inconsistent with the practical reality: WEW had no interest in RR, had already given up her shares and appointments, and was content to leave management of P’s legal and financial affairs to WEX.
What Were the Key Legal Issues?
The first legal issue concerned mental capacity under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). Specifically, the court had to determine whether P had the mental capacity to execute the LPA on 22 January 2021. This required the court to assess whether P understood what the decision entailed and whether, in making that decision, he satisfied the examining doctor that it was a rationally considered decision, as framed by the MCA’s approach to capacity.
The second issue concerned the evidential weight to be given to competing expert evidence. The District Judge had relied on the evidence of a psychiatrist, Dr [D], who examined P on 2 December 2020 and 22 January 2021 and certified P as sufficiently capable to execute the LPA. WEW called another doctor, Dr [F], who had not examined P and whose opinion was said to be based largely on what WEW told him. The High Court had to decide whether the District Judge’s evaluation of this evidence was correct.
The third issue related to costs. In RAS 7, WEW challenged the District Judge’s costs orders. The District Judge had identified two main factors: (1) WEX’s pre-trial costs estimate of $127,000, and (2) the time spent cross-examining Dr [D], which the District Judge considered to be an excessive attack. The High Court had to consider whether the costs award was properly exercised within the bounds of discretion.
How Did the Court Analyse the Issues?
The High Court began by emphasising the baseline presumption embedded in the MCA: the “commonsense assumption that everyone is of sound mind unless proven otherwise.” Accordingly, if WEW wanted the court to find that P did not have mental capacity to execute the LPA, she bore the burden of proving that to the court’s satisfaction. This framing is important for practitioners because it clarifies that capacity challenges are not approached as mere allegations; they require cogent evidence capable of displacing the presumption.
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 carried out by Dr [D].
The High Court placed significant weight on the District Judge’s assessment of Dr [D]’s evidence. Although Dr [D] was subjected to “intense cross-examination” and counsel for WEW suggested that Dr [D] had “concocted evidence” in relation to awareness of the AMT score, the High Court agreed with the District Judge that Dr [D]’s evidence was “clear and direct” and addressed the precise question under the MCA. The High Court found no contrary evidence or reasonable cause to hold that the District Judge’s findings were wrong.
In addressing the nature of mental capacity, the High Court acknowledged that a 93-year-old may experience mental impairments such as loss of attention and loss of memory. However, it treated these as general facts of life rather than determinative of incapacity. The court stressed that the “nature and extent of a person’s mental capacity is completely subjective,” and that the examining doctor must assess capacity based on the patient before him. This approach aligns with the MCA’s functional, decision-specific assessment rather than a diagnosis-based approach.
The High Court then articulated the duties of the examining doctor. The doctor’s assessment must be based on training and competence as a psychiatrist and must satisfy the conditions set out in the MCA. Critically, the doctor must determine whether the patient is capable of making the decision to execute the LPA, including whether the patient understands what the decision entails and whether the doctor is satisfied that the decision is rationally considered. On the facts, Dr [D] was unequivocal that P was mentally capable of executing the LPA, notwithstanding that P had difficulty recalling names and was slow in arithmetic calculations.
WEW’s case depended heavily on calling Dr [F] to support the claim of incapacity. The High Court agreed with the District Judge that Dr [F]’s evidence was of no assistance. The key reason was that Dr [F] had not examined P and had little to say about dementia or any specific mental issues requiring a different evidential approach. The High Court also noted that Dr [F] admitted he had misunderstood the nature of his appointment by WEW. As a result, the High Court concluded that the trial judge was left with WEW’s claims and accusations, rather than with reliable expert evidence capable of undermining Dr [D]’s assessment.
On the allegations of fraud and undue influence, the High Court adopted a restrained approach. It noted that the District Judge had examined WEW’s evidence and was unable to find that WEX had defrauded or unduly influenced P. The High Court found nothing in the evidence or submissions to justify a different conclusion. It also addressed a procedural and substantive point: a claim for undue influence could not succeed without K supporting it or being named a co-defendant. On the contrary, K refuted WEW’s claims and expressed the view that WEW was the cause of disharmony in the home. The High Court further observed that K was mentally fit and close to P, undermining the plausibility of undue influence.
Finally, the High Court’s reasoning included a candid assessment of the litigation’s apparent purpose. It described WEW’s position as baffling, given that WEW had no interest in RR, had already relinquished her shares and appointments, and was not seeking to manage P’s legal and financial affairs. The High Court also noted that P was physically and mentally frail and that, by the time of the appeal, P could no longer recognise WEW. The court questioned what the appeal could achieve in practical terms, while acknowledging that love and self-sacrifice could theoretically explain a genuine desire to care for an infirm relative. However, on the evidence, the court found that WEW’s conduct and the background relationship did not support such a benign explanation.
On costs, the High Court treated the issue as one of discretion. It observed that the District Judge had mentioned two factors: WEX’s pre-trial costs estimate and the time spent cross-examining Dr [D]. The District Judge was not pleased with what she perceived as an excessive attack on Dr [D] by counsel. The High Court agreed that costs awards are discretionary and that a litigant’s approach and behaviour may tip the award towards the higher range. It also stated that sympathy from the court may be reflected by a lower award. Given the time and effort involved in the case, the High Court held that the District Judge’s award was justified.
The High Court added a practical admonition: a litigant who wages a long battle must constantly keep track of costs and not wait until the “last bullet is spent” before counting the cost. This reflects an underlying principle of proportionality and judicial management of litigation, even though the extract does not cite a specific costs rule. The High Court then ordered costs for the appeal itself, since costs “must naturally follow the event” given the dismissal of the appeal.
What Was the Outcome?
The High Court dismissed WEW’s appeal in DCA 44, thereby upholding the District Judge’s dismissal of OSM 202 and the refusal to revoke the LPA. The practical effect was that WEX remained the donee under the LPA, and the court did not interfere with the earlier finding that P had capacity to execute the LPA in January 2021.
In RAS 7, the High Court upheld the District Judge’s costs orders and further ordered costs for the appeal: $12,000 to be paid by WEW to WEX and $5,000 to be paid by WEW to K. The decision thus confirmed both the substantive outcome on capacity and the financial consequences of an unsuccessful challenge.
Why Does This Case Matter?
This case is significant for practitioners dealing with challenges to LPAs and capacity assessments under the MCA. It reinforces the presumption of capacity and the burden on the party alleging incapacity. It also illustrates the court’s preference for direct, decision-specific expert evidence from clinicians who have examined the patient, particularly where the MCA’s functional criteria—understanding, decision-making, and rationality—are central.
For litigators, the judgment highlights the evidential limitations of expert opinions that are not grounded in examination of the person whose capacity is in issue. Dr [F]’s evidence was rejected because it was not based on an assessment of P and lacked substantive engagement with the relevant mental conditions. This serves as a cautionary lesson: in capacity litigation, the quality and methodology of expert evidence can be decisive, not merely the existence of an expert witness.
The decision also matters for costs strategy in family and capacity disputes. The High Court’s endorsement of the District Judge’s approach demonstrates that extensive cross-examination and protracted litigation can translate into higher costs awards, especially where the court perceives an “excessive attack” on an expert. The court’s remarks about tracking costs and the proportionality of litigation effort provide practical guidance to counsel and parties on managing risk and expenditure.
Legislation Referenced
- Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”)
Cases Cited
- [2022] SGHCF 32 (this case)
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.