If you are Singaporean, chances are, you have heard of the recent high-profile legal tussle over an elderly widow’s (Mdm Chung Khin Chun) assets worth about 40 million, between her niece (Mdm Hedy Mok) and her ex-tour guide (Yang Yin). While this case mainly involves issues surrounding a legal instrument called the Lasting Power of Attorney (“LPA”), it also concerns other legal issues, namely criminal breach of trust (“CBT”), and wills. To understand the areas of law concerned, we will first consider the salient facts of this case.
Timeline of Events (pieced together from online sources)
|2008||Chung met Yang in China.|
|2009||Yang moved into Chung’s bungalow.|
|2010||Chung made a will in which Yang would become the sole executor and beneficiary of her estate on her death.|
|2012||Chung appointed Yang as her proxy decision-maker under the LPA.|
|2013||Yang’s wife and children moved into Chung’s bungalow.|
|2014||Chung was diagnosed with dementia.When Mok found out about the LPA executed in 2012, she took Chung to live with her, evicted the Yang family out of Chung’s bungalow and started a series of court proceedings.The court appointed Mok as Chung’s deputy under the Mental Capacity Act, for the purposes of commencing legal proceedings on behalf of Chung.Yang was arrested for suspected criminal breach of trust. The police had acted on a police report made by Mok against Yang, alleging that he had stolen jewellery, cash and art pieces belonging to Chung.Chung applied to the Office of the Public Guardian (OPG) to revoke the LPA. Some of the claims made against Yang were that: he prevented her from seeing her close friends, sold her jewellery and art, emptied her bank accounts and even sacked her long-time maid and driver. It also emerged that Yang had sold valuables allegedly belonging to Chung online.Mok filed a separate lawsuit against Yang for loss and damages arising from his alleged breach of duties under the LPA.
The court granted OPG’s application to temporarily suspend Yang’s powers under LPA to make decisions for Chung. Mok was allowed to remain as Chung’s deputy to pursue legal proceedings against Yang on Chung’s behalf, but was required to inform OPG of the steps that she would take as deputy.
The court ruled that Chung had the mental capacity to revoke the LPA. Consequently, the OPG allowed Chung to revoke the LPA.
Yang applied to the court to maintain some control over Chung’s assets by filing to become a defendant in the case brought by Mok, who was applying for full deputy powers to manage Chung’s assets and daily matters.
Chung made a new will and cancelled the old 2010 one. The new will left nothing to Yang.
Explaining the Lasting Power of Attorney
Yang’s powers under the LPA
Section 11 of the Mental Capacity Act (MCA) empowered Yang, under the LPA, to make decisions about Chung’s personal welfare, property and affairs, when Chung no longer had capacity to make such decisions. However, he was also bound to make these decisions in Chung’s best interests. When Yang allegedly sold Chung’s items online for his own profit, he was unlikely to have been acting in Chung’s best interests. Thus Yang may have breached the ambit of his powers under the LPA.
Revocation of the LPA
As s 15(2) of the MCA sets out, Chung had the power to revoke the LPA at any time when she had capacity to do so. As the court ruled that she had the mental capacity to revoke the LPA, she was able to successfully revoke the LPA.
What if the court had ruled that Chung lacked the mental capacity to revoke the LPA?
The court itself can revoke the LPA, on particular grounds listed in s 17(3) of the Act. On the facts of this case, the court would likely have been able to revoke the LPA on the ground that Yang had behaved in a way that contravened his authority or was not in Chung’s best interests.
Is Yang liable for contravening his authority under the LPA?
As yet, it is not clear what legal consequences Yang may face if the court rules that he had contravened his authority under the LPA. Mok has sued Yang (as well as his wife, parents and former bailor) for damages on the basis of his alleged breach of duties under the LPA. This lawsuit is currently ongoing.
Explaining criminal breach of trust
Why is Yang potentially liable for CBT?
The offence of criminal breach of trust is set out in s 405 of the Penal Code.
When a person is entrusted with property or has dominion over property, and dishonestly misappropriates or converts to his own use that property, he may be liable for the offence of CBT. If he dishonestly uses that property in a way that is in violation of the law or of any legal contract, he may also be liable for the same offence.
In this case, when Chung executed a LPA in favour of Yang, she had entrusted her property to Yang in the event that she lost the mental capacity to make her own decisions. Under s 6(6) of the MCA, Yang was legally obliged to, so far as was reasonably practicable, use Chung’s property for the costs of Chung’s maintenance during her life.
However, assuming that Yang did sell Chung’s valuables online for his own gain, he had dishonestly used such property in violation of s 6(6) of the MCA. Hence, he would have committed criminal breach of trust.
Learn more about other examples of situations in which a criminal breach of trust may be committed.
Learn about the difference between an Lasting Power of Attorney and a will.
Revocation of will
Applying s 15(b) of the Wills Act, the effect of Chung executing a new will was to revoke the previous will. Learn more about wills and other ways in which they can be revoked.
Can Yang contest the validity of the new will?
Yang can contest the validity of the new will, but only on particular grounds, such as Chung not being of sound mind at the time of execution of the new will. Find out about the other grounds on which a will can be contested.
This article is contributed by Goh Ee Hua, a student at SMU School of Law.