At that point, the funds within the foreign currency payment account were only roughly A$8.2 million. This was likely because of falling currency rates, said Justice Choo Han Teck.
Plaintiff Tsang sought a refund of the difference between S$8.5 million and the balance remaining within the checking account.
At the identical time, Eng’s daughter, Allison Nicole Eng, as one among the choice executors of her father’s estate, challenged the validity of the deed. The defendant tried to recuperate the cash her father had given to Tsang.
Eng opened an account at Hong Leong Bank for Tsang on October 25, 2016, after emailing his account manager with instructions to shut existing accounts on the bank and transfer the balance to the brand new account.
This account was opened in Tsang’s sole name.
However, the method was delayed because Hong Leong Bank’s compliance team needed details about Tsang’s assets, personal assets, inheritance, and financial knowledge and experience.
The team also demanded that Eng sign a present deed before he could give the cash to Tsang.
The gift deed was executed by Eng on November 7, 2016 and, based on court documents, constituted an “unconditional and irrevocable” gift to Tsang in the quantity of A$8.5 million.
It also included a clause stating that the instrument and all matters referring to it “shall be governed by and construed in accordance with the laws of Singapore” and that the parties “hereby undergo the exclusive jurisdiction of the courts of Singapore”.
Tsang’s checking account was opened on January 20, 2017, and as at January 25, 2017, it held roughly A$8.2 million.
The lawyer acting on behalf of the accused argued that the deed was not enforceable since it was not sealed on the day of its execution and was not delivered to Tsang.
Eng had “no intention” for it to be binding and enforceable, the lawyer said.
According to the defendant, the one reason why Eng signed the deed was since the bank requested it before his funds might be transferred to the newly opened account in Tsang’s name.
The lawyer added that Eng’s true intention in donating the funds was “not intended to confer full and absolute profit to Tsang.”
Instead, it was because he intended to “avoid prohibitive estate duties and probate processes as a way to easily distribute his liquid assets.”
The lawyer further stated that Eng wanted Tsang to present the cash to Eng’s daughter after his death.
However, the plaintiff’s lawyer argued that the deed was valid from the moment it was signed, sealed and delivered.
Judge Choo took under consideration the contents of Eng’s draft will dated November 7, 2016, the identical day he signed the deed, to evaluate his intention to transfer the funds to Tsang’s account at Hong Leong Bank.
All of the target evidence presented above similarly points to the conclusion that the A$8.5 million was intended to supply Tsang with security within the event that, prior to her death,
He said Eng’s total assets, which include his liquid assets and his Hong Kong apartment, could be about A$12.75 million.
Eng planned for his daughter to receive about A$4.25 million, while Tsang would receive A$8.5 million.
In his will, Eng gave Tsang instructions to either buy the apartment from his daughter with the cash within the Hong Leong Bank account or keep the whole amount within the account while his daughter retained ownership of the property.
Eng didn’t sign the draft will because he was “probably waiting for Allison to answer his emails,” which he sent on November 25, 2016, and February 13, 2018, Judge Choo said.
On November 25, 2016, Eng sent an email asking his daughter how she desired to make the payment. Despite a reminder sent on February 13, 2018, she didn’t respond.
“Given that Eng deliberately executed the deed and will at the same time, the content of the draft will is relevant to the assessment of Eng’s intentions at the material time,” the judge added.
In his judgment, Justice Choo found that Eng’s intentions in drafting the deed were linked to his intentions in drafting the need.
He added that Eng wanted to attenuate the exposure of his assets to prohibitive tariffs when he decided to present Tsang A$8.5 million.
“All of the objective evidence presented above similarly points to the conclusion that the A$8.5 million was intended to provide security for Tsang in the event of her predeceased death.
“Hence, both the deed and the draft will were intended to serve the same purpose – easy division of his estate after his death.”
Regarding the defendant’s lawyer’s contention that the deed was not sealed or delivered, making it unenforceable, Judge Choo said it appeared that the original deed was not sealed on the date of execution.
However, he noted that it was likely sealed after Eng’s lawyer in Singapore confirmed his client’s instructions to forward the document to his account manager at Hong Leong Bank.
Judge Choo added that it is “well settled” that physical production of a seal is not required for a document to be considered sealed.
Rather, the key issue was whether Eng recognized and accepted the document as his act and whether he had the requisite intention to execute it.
After reviewing email correspondence between Eng and his lawyer, Judge Choo found that the former’s intention to carry out the act had been sufficiently indicated.
He also rejected the argument of the defendant’s lawyer that the deed of delivery had not been served, stating that the deed of delivery was not about the actual transfer of possession, but about the intention to deliver.
Email correspondence between Eng and his lawyer also indicated the former’s intention to be bound by the docket, with Judge Choo also noting that it was delivered to his account manager at Hong Leong Bank.
“Accordingly, I find this deed to be a valid and enforceable gift,” the judge said.
Judge Choo also found no merit within the argument that the true purpose of the act was to satisfy the demands of Hong Leong Bank.
He found that “in any event” the cash within the Hong Kong accounts formed a part of Eng’s A$8.5 million gift to Tsang.
“It is likely that at the material time in October 2016, Eng had a total of A$8.5 million from all of his Hong Leong Bank accounts held in various foreign currencies.
“However, given that the Hong Leong account was only opened in January 2017, it was likely that the exchange rates of these currencies declined in the following months such that the total amount of funds in the Hong Leong account was only approximately S$8.2 million “as of January 25, 2017”
On whether Tsang is entitled to a shortfall claim between S$8.5 million and the balance in the Hong Leong account, Justice Choo said that “due to lack of evidence, no award will be made in respect of the shortfall.”
This happened because Tsang closed the bank account in question and “it is unclear when Tsang closed the account and what the account balance was when she did so.”
“Tsang could have easily provided such evidence. The fact that Tsang closed the account was also only revealed on the first day of the trial,” he said.
“Tsang’s lack of evidence makes it difficult for me to search out in her favor,” Judge Choo added.
He also noted that, given exchange rate fluctuations, the funds in Hong Leong’s account could well have increased after Eng’s death.
However, the judge ruled that Tsang was entitled to maintain the cash remaining in Hong Leong’s account – S$7.91 million – before it was closed.
If each parties don’t reach an agreement, the problem of costs can be resolved at a later date.
