Executive summary

Like most developed nations, the population in Singapore is gradually aging. To tackle the emerging issues associated with this demographic profile, Parliament enacted the Mental Capacity Act (Cap 177A, 2010 Rev Ed)(“MCA”) which came into effect in 2010.

It is now almost six years since the MCA, which is based largely on the English Mental Capacity Act 2005, first came into operation. A body of local case law is slowly emerging, which provides guidance on how the MCA will be interpreted and applied in the Singapore courts.

These include, among others,

• BHR and Another v BHS [2013] SGDC 149 (Decision date: 21 May 2013) (“BHR”);
• TEB v TEC [2015] SGFC 54 (Decision Date: 4 May 2015);
• Re BKR [2015] 4 SLR 81 (CA) (Decision Date: 19 May 2015) (“Re BKR”); and
• TCZ v TDA, TDB and TDC [2015] SGFC 63 (Decision date: 20 May 2015) (“TCZ”).

This article seeks to focus on two main areas: 

1. The subject of “statutory wills” as discussed in BHR and TCZ; and
2. The Singapore Court of Appeal’s decision in Re BKR on the approach to apply in assessing capacity within the meaning of the MCA, and the role of medical experts in such cases.

Statutory wills

What happens if an elderly suffering from dementia and lacking mental capacity (“P”) executes a will containing terms contrary to her best interests and original desires; and under circumstances where she was labouring under the undue influence of another seeking to benefit from her incapacity?

This was the situation presented before the courts in BHR and TCZ; the facts of which are largely similar.

Instead of waiting for a contentious probate dispute to arise, the court can be asked to “step into the shoes of P and attempt to walk in it by executing a will on her behalf”. This has the practical effect of “superseding” P’s last will which was not freely executed by her and did not serve her interests. This is also commonly referred to as a “statutory will”.

In BHR and TCZ, the courts did just that by allowing statutory wills to be executed for P in both instances. The courts also commented briefly on the approach to adopt in such cases:

1. In deciding whether to direct a statutory will to be executed for P, the court will be guided by P’s best interests (as provided for in section 6 of the MCA).
2. The relevant factors to consider include P’s past and present wishes, her feelings,beliefs and values. There is however no hierarchy among the various factors. The weight to be attached to these factors will always be case-specific and fact specific;
3. In some cases, however, there may be certain “magnetic factors” which have a decisive influence on the determination; and
4. “Best interests” may also require one to consider what is the “right thing” to do. For many people, it is in their best interests that they are remembered with affection by their family and as having done the right thing by their will.

These cases must not however be construed as an increased willingness by the courts today to “re-write” the testamentary intentions of an individual.

As the court in TCZ observed, it is “not for anyone, including [the] Court, to dictate whimsically what P ought to do or have done with her money”; an observation which
dovetails with the need to respect individual’s autonomous rights - a fundamental tenant of the MCA (e.g. see Section 3(3) MCA).

Nonetheless, if there is compelling evidence that such autonomy was not present when P executed her last will or if she laboured under the undue influence of someone else, the “protective arm of the law” will not hesitate to “reach out to restore [P’s] rights and serve her best interests in the form of a statutory will”; as the decisions in BHR and TCZ stand testament to.

Lastly, it is worth noting that the facts presented in BHR and TCZ are not the only situations under which a statutory will may be necessary. 

Other possible situations may include:

1. where a person has remarried after making his first will, but before he makes his second will, suddenly becomes mentally incapacitated, and the result of the intestacy in those circumstances may be inappropriate;
2. where the primary beneficiary has predeceased the mentally incapacitated person so that, in effect, the latter is now intestate;
3. where a property intended to be a legacy in an existing will no longer exist, for example, the court may have to order its sale so that its proceeds can be used for the medical care of the incapacitated person and therefore some other provisions will need to be made for a beneficiary;
4. where there has been a major change in the mentally incapacitated person's circumstances or in his relationship with the beneficiaries in his will, for example, his spouse has divorced him.

Re BKR and its implications

In Re BKR, the Singapore Court of Appeal (“CA”) was asked to decide whether an elderly individual lacked capacity within the meaning of the MCA; in circumstances where her inability to make decisions was caused not by her mental impairment alone, but by a combination of mental impairment and undue influence.

In what is likely to be the first reported decision by the CA on the MCA, the following points of note, among others, were made.

The test for capacity and scope for involvement of medical experts

The CA affirmed the view that the test for capacity involves a functional and clinical component. The functional aspect is that P must be unable to make a decision, and the clinical aspect is that this inability must be caused by a mental impairment. Assistance of expert evidence is required when addressing the clinical component of the test. But for the functional component, this is a question for the court to grapple with, “leaving perhaps a limited scope for the involvement of the medical experts”. 

Interaction between mental impairment and allegations of undue influence in cases where a person’s mental capacity was in issue

The CA clarified that the test for lack of mental capacity under the MCA does not require one’s mental impairment to be the sole cause of her inability to make decisions. Instead, this inability can also be caused by a combination of both her mental impairment and the circumstances in which she finds herself in.

In short, “the court must take into account P’s circumstances in assessing his mental capacity” (original emphasis). If the circumstances were such that there was proven or potential presence of undue influence exercised over P, then this will be relevant to the issue of mental capacity in at least three ways (which the CA elaborated further in its judgment). 

Postscript: An inquisitorial and court-directed approach to evidence in future cases

In its concluding remarks, the CA also commented that in cases of this nature, the court’s role is a protective one as P’s interests are paramount. As such, questions of mental capacity under the MCA might be better dealt with using a more inquisitorial and court-directed approach to the evidence. This also applied to the treatment of expert evidence in instances where P’s mental capacity is challenged; and the CA went on to elaborate on the proper approach to adopt. 

Conclusion

One can expect to see new developments in this area of the law soon.

The CA’s comments in Re BKR could possibly lead to procedural changes in how future MCA proceedings are conducted.

Recently on 7 December 2015, the Ministry of Social and Family Development also launched a public consultation on the draft MCA amendment bill.

The key amendments proposed include: (a) introducing professional donees and deputies; (b) revising the grounds in which a lasting power of attorney or deputyship order can be revoked by the court; and (c) allowing the court to temporarily suspend a donee’s or deputy’s powers in the absence of a pending court application.

Non-legislative initiatives are also being planned, such as: (a) simplifying the deputyship application process for certain groups of individuals, such as children born with severe intellectual disabilities; (b) providing options for mentally incapacitated individuals who do not have anyone willing or able to be their deputy; and (c) tightening the lasting power of attorney-making process in order to protect vulnerable seniors from undue influence and financial exploitation.

As one of the leading wealth management centres in the world which also features an aging demographic profile, this area of the law and the changes that are afloat will no doubt be of increasing relevance to both the general public and practitioners alike.