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8 of 13 DOCUMENTS 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) Singapore Law Reports TOH ENG LAN V FOONG FOOK YUE AND ANOTHER APPEAL [1999] 1 SLR 453 CIVIL APPEAL NOS 56 AND 65 OF 1998 COURT OF APPEAL DECIDED-DATE-1: 9 NOVEMBER 1998 KARTHIGESU, LP THEAN JJA AND LAI KEW CHAI J CATCHWORDS: Succession - Wills - Construction - Uncertainty - Condition subsequent - Gift of house to elder daughter on specific condition that she allowed younger daughter and son to stay, and personal friend to stay where necessary - Whether condition subsequent valid - Whether direction void for undertainty Civil Procedure - Appeal - Further evidence - Further evidence of matters arising before date of decision from which appeal was brought - Admission of - Applicable principles - Rules of Court O 57 r 13(2) - Supreme Court of Judicature Act (Cap 322) s 37(2) Words and Phrases - 'Stay' Words and Phrases - 'Necessary' HEADNOTES: By cl 2 of his will the testator provided: 'I devise to my elder daughter, Foong Fook Yue, my house known as 38 Princess of Wales, Singapore absolutely. This is on the specific condition that my elder daughter shall allow my other daughter and only son, Foong Fook Wai and Foong Fook Won and my personal friend, Ms Toh Eng Lan to stay in this house, should it be necessary for her so to do.' By cl 3 the testator devised his apartment known as Block 29, Mount Sinai Rise # 03-01 ('the apartment') to Ms Toh Eng Lan ('Ms Toh') absolutely, and by cl 4 he devised his shophouse and flat known as 619D and 619E Bukit Timah Road, Singapore to his trustee (the elder daughter, 'Ms Foong') to hold in trust for his younger daughter Foong Fook Wai ('the younger daughter') and only son Foong Fook Won ('the son') respectively until the son shall reach the age of 21 years old. By cl 1, the testator appointed Ms Foong the sole executrix and trustee of his will. The testator died on 18 December 1986. Grant of probate in respect of the testator's estate was extracted on 13 April 1995 in Probate No 1645 of 1987. It was not in dispute that the apartment was registered in the name of the

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beneficiary, Ms Toh, on 16 May 1997 and that she had had the benefit of the rental proceeds therefrom since about September 1987. In Originating Summons No 73 of 1998 ('OS No 73 of 1998') Ms Foong took out an application for, inter alia, the following orders: (1) that it may be determined on the true construction of the testator's will that the direction in cl 2 of the will relating to the property at 38 Princess of Wales, Singapore ('the property') (which made the devise of the property to Ms Foong conditional upon her allowing the younger daughter, the son and Ms Toh to stay in the property) was void for uncertainty; (2) that it may be determined on the true construction of the will that the property was an absolute gift to her (Ms Foong); and (3) that she recover possession of the property on the ground that she was entitled to possession thereof and that Ms Toh, being the person in occupation, was in occupation without licence or consent. The application first came up for hearing on 13 February 1998 but was adjourned as Ms Toh's solicitors indicated that she wished to file an affidavit in reply to Ms Foong's affidavit filed on 22 January 1998. The application was adjourned to 16 February 1998 and the judge recorded that: (1) no further affidavits were required as the issue was one of law only; and (2) if a further adjournment was sought, the party requesting for such adjournment shall bear the costs of adjournment. At the adjourned hearing on 16 February 1998, Ms Toh through her solicitors informed the court that she thought that a further affidavit was necessary but that she was prepared to proceed without such affidavit if the court was of the view that the issue was strictly one of law. The judge gave judgment for Ms Foong in the following terms: (1) that there was no uncertainty in the wording of cl 2 of the will but that the question of necessity was no longer in issue because Ms Toh had alternative accommodations since about May 1997 when the apartment was transferred to her and she had since September 1987 obtained rental income from the apartment; (2) that on the true construction of the will, the property was an absolute gift to Ms Foong; (3) that she recover possession of the property on the ground that she was entitled to possession thereof and that Ms Toh, being the person in occupation, was in occupation without licence or consent; and (4) that Ms Toh vacate the property by 28 February 1998. Both Ms Toh and Ms Foong appealed in CA 56 and CA 65 of 1998 respectively. In CA 56/98, Ms Toh appealed only against that part of the judge's finding on the question of necessity, that is, that it was not necessary for her to stay in the property. Ms Toh contended that the judge ought not to have decided on the question of necessity: (1) when this was not part of Ms Foong's application in OS No 73 of 1998; and (2) without the benefit of her (Ms Toh's) affidavit filed on 28 February 1998 as the question of necessity was one of fact. In CA 65/98, Ms Foong appealed only against that part of the judge's decision on the question of uncertainty, that is, that there was no uncertainty in the wording of cl 2 of the will. She essentially contended that: (1) the direction in cl 2 of the will was uncertain and should thus be declared void for uncertainty as there was ambiguity in the standard by which she was to allow the respondents (Ms Toh, the younger daughter and the son) to stay in the property; (2) the direction in cl 2 of the will was analogous to a condition requiring her to 'provide a home for' the respondents and such a condition was void for uncertainty; (3) in the absence of a gift over the direction in cl 2 of the will was merely precatory and did not bind her; and (4) even if cl 2 conferred upon Ms Toh the right to stay in the property, she had given up that right when she agreed to vacate the property upon the transfer of the apartment to her. Held, allowing the appeal in CA 65/98 and dismissing CA 56/98: (1) The premise of the judge's decision that the direction in cl 2 of the will was not void for uncertainty was that the expression 'allow ... to stay in this house' was distinguishable from the expression 'provide a home for'. However, the difficulties which dogged the expression 'provide a home for' also attached to the expression 'allow ... to stay in this house' in the present case. The word 'stay' was ambiguous in that it was by no means clear whether what was meant was 'temporary' or 'permanent' residence or residence on a 'regular basis'. As presently framed, the direction in cl 2 of the will was so broadly worded as to be unqualified as to the times or

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periods the respondents, in particular the younger daughter and the son (as their right to 'stay' was not qualified by the criterion of necessity) were to be allowed to stay in the property. No provision was made in the will for the possibility that Ms Foong may desire to dispose of the property even where it was no longer 'necessary' for Ms Toh to stay there. (see P 20-22). Further it was also by no means clear that the intention of the testator was to allow Ms Toh to stay free of charge (see P 23). (2) The court must judge the degree of certainty with some measure of common sense and knowledge and without excessive astuteness to discover ambiguities. But in the present case, the ambiguity inherent in the direction 'allow ... to stay in this house' was such that it was not possible to envisage what the testator meant. This was a case of conceptual uncertainty and not evidential uncertainty, and conceptual uncertainty (but not evidential uncertainty) may avoid a condition subsequent (see P 24); Blathwayt v Cawley (Baron) & Ors [1976] AC 397 and Re Tuck's Settlement Trusts; Public Trustee v Tuck [1978] Ch 49, [1978] 1 All ER 1047 followed. (3) Another way of testing the matter would be to ask whether (in the case of a condition subsequent) the court was able to see from the beginning precisely and distinctly upon the happening of what event the preceding vested interest was to determine. Alternatively, whether the condition had or had not taken effect must be capable of ascertainment at any given moment of time; Clayton v Ramsden [1943] AC 320 and Re Viscount Exmouth; Exmouth v Praed (1883) 23 Ch D 158 followed. In the present case, one might postulate that the condition subsequent would have taken place if Ms Foong either did not allow the younger daughter and the son to stay in the property or Ms Toh to do so where necessary. However it would not be possible to come to this conclusion without first answering the a priori question of the meaning of the term 'stay'. As such, it was not possible to envisage when or how Ms Foong's absolute interest in the property would determine. Therefore the direction in cl 2 of the will was void for uncertainty (see P 25). (4) The language used by the testator in the direction in cl 2 did not support the contention that it was merely precatory, indeed it seemed to suggest the contrary -- that the testator intended it to be a binding condition. The absence of a gift over was a neutral factor because the absence (or presence) of a gift over had no correlation with the validity of the condition subsequent. Second, there was no concrete proof that Ms Toh had given up her right to stay in the property or that she had agreed to vacate it upon the transfer of the apartment to her. It could not be said that Ms Toh had given up her right to stay in the property (see P 26). (5) The court was perfectly entitled to decide on the question of necessity. One of the prayers in OS No 73 of 1998 was for a determination that the direction in cl 2 of the will was void for uncertainty. In coming to a decision, the court would have had to consider in particular the meaning of the term 'stay' and, in relation to Ms Toh, whether or not it was 'necessary' for her to stay in the property. The question of necessity was thus of direct relevance in Ms Foong's application (see P 29). (6) It would have been necessary for Ms Toh to stay in the property only if she did not have alternative accommodation. If the apartment had been

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devised to her (and this was not in dispute), it could not be said that it was necessary for her to stay in the property. Necessity imports that which is essential, that which cannot be dispensed with or done without, a requisite or basic requirement of life. It may have been convenient or expedient for Ms Toh to stay in the property but it was certainly not necessary for her to do so (see P 29). (7) An affidavit by Ms Toh was further evidence of matters arising before the date of the decision from which the appeal was brought and its admission, by virtue of O 57 r 13(2) of the Rules of Court and s 37(2) of the Supreme Court of Judicature Act would have required leave of the court. The proper procedure would have been for Ms Toh to seek the leave of the court to admit the affidavit by way of motion, but this was not done. Indeed Ms Toh did not even seek to justify the admission of her affidavit by reference to the established principles governing the admission of further evidence but proceeded on the basis that she was entitled to refer to it as of right. This was plainly incorrect. Leave of the court was required for the adduction of further evidence. In particular, special grounds were needed to justify the admission of evidence as to matters which occurred before the date of the decision from which the appeal was brought. The conditions on which such evidence ought to be received were: (a) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (b) it must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (c) the evidence must be such as was presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible; Ladd v Marshall [1954] 1 WLR 1489 followed (see P 31-33). (8) Ms Toh did not make an application to admit her affidavit. Even if she had done so the court would have been disinclined to allow it for the following reasons. The affidavit could have been obtained with reasonable diligence for use at the trial. Ms Toh had more than sufficient time to file an affidavit prior to the hearing before the judge on 16 February 1998 but did not do so. At the hearing itself, she was prepared to proceed without her affidavit and did not object when the hearing was proceeded with. Further, the affidavit would not have had an important bearing on the decision of the judge in relation to the question of necessity. Lastly, the evidence contained in the affidavit was not particularly cogent. It could be characterised as bare assertions on the part of Ms Toh which did not advance the court's inquiry into the question of necessity. Ms Toh's contentions on the question of necessity were therefore rejected (see P 34). Cases referred to Blathwayt v Cawley (Baron) [1976] AC 397 Brace, Gurton v Clements [1854] 1 WLR 955 Clayton v Ramsden [1943] AC 320 Huang Han Chao v Leong Fook Meng [1991] SLR 286, [1991] 3 MLJ 337

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Ladd v Marshall [1954] 1 WLR 1489 National Mutual Trustees v Gooding [1990] VR 791 National Provincial Bank v Ainsworth [1965] AC 1175 Potter, Re [1970] VR 352 Tuck's Settlement Trusts, Re; Public Trustee v Tuck [1978] Ch 49, [1978] 1 All ER 1047 Viscount Exmouth, Re; Exmouth v Praed (1883) 23 Ch D 158 Legislation referred to Supreme Court of Judicature Act (Cap 322) s 37(2) Rules of Court O 57 r 13(2)

Ong Pang Meng (Tang & Pnrs) for the appellant in CA 56/98 and for the first respondent in CA 65/98. Mohammed Lutfi bin Hussin (Eugene Ho & Pnrs) for the respondent in CA 56/98 and for the appellant in CA 65/98. Sng Kheng Huat (Sng & Co) for the third respondent. JUDGMENTBY: KARTHIGESU JA

(delivering the grounds of judgment of the court): Background 1 By cl 2 of his will dated 26 August 1986, the testator, Foong Siew Tong ('the testator') provided as follows: I devise to my elder daughter, Foong Fook Yue, my house known as 38 Princess of Wales, Singapore absolutely. This is on the specific condition that my elder daughter shall allow my other daughter and only son, Foong Fook Wai and Foong Fook Won and my personal friend, Miss Toh Eng Lan to stay in this house, should it be necessary for her so to do. By cl 3: I further devise my flat known as Block 29, Mount Sinai Rise, # 03-01, Singapore to my personal friend, Miss Toh Eng Lan ... absolutely. And by cl 4: I further devise to my trustee [the testator's elder daughter Foong Fook Yue], my shophouse and flat known as 619D and 619E Bukit Timah Road, Singapore ... respectively in trust for my younger daughter, Foong Fook Wai ... and my only son, Foong Fook Won ... until my only son shall reach the age of 21 years old. Thereafter to my younger daughter and only son absolutely in equal shares as joint tenants.

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By cl 1, the testator appointed his elder daughter Foong Fook Yue, the respondent and appellant in CA 56 and 65 of 1998 respectively, the sole executrix and trustee of his will. (Hereafter the elder daughter Foong Fook Yue will be referred to as 'Ms Foong'; Miss Toh Eng Lan as 'Miss Toh'; Foong Fook Wai as 'the younger daughter' and Foong Fook Won as 'the son'). 2 The testator died on 18 December 1986. Grant of probate in respect of the testator's estate was extracted on 13 April 1995 in Probate No 1645 of 1987. It was not in dispute that the apartment known as Block 29 Mount Sinai Rise # 03-01, Singapore ('the apartment') was registered in the name of the beneficiary, Miss Toh, on 16 May 1997 and that she had had the benefit of the rental proceeds therefrom since about September 1987. Originating Summons No 73 of 1998 3 In Originating Summons No 73 of 1998 filed on 22 January 1998 ('OS No 73 of 1998') Ms Foong, the sole executrix and trustee of the will of the testator, took out an application for the following orders: (1) That it may be determined on the true construction of the testator's will that the direction in cl 2 of the will relating to the property at 38 Princess of Wales, Singapore ('the property'), which is reproduced as follows, is void for uncertainty. 2 I devise to my elder daughter, Foong Fook Yue, my house known as 38 Princess of Wales, Singapore absolutely. This is on the specific condition that my elder daughter shall allow my other daughter and only son, Foong Fook Wai and Foong Fook Won [the second and third respondents in CA 65/98 respectively] and my personal friend, Miss Toh Eng Lan [the appellant and first respondent in CA 56 and 65 of 1998 respectively] to stay in this house, should it be necessary for her so to do.'] (2) That it may be determined on the true construction of the said will that the property at 38 Princess of Wales, Singapore is an absolute gift to the plaintiff (Ms Foong). (3) That the plaintiff recover possession of the property at 38 Princess of Wales, Singapore on the ground that she is entitled to possession thereof and that the first defendant, Toh Eng Lan (Miss Toh), being the person in occupation, is in occupation without licence or consent. (4) For such further or other order as the court may direct. (5) That the plaintiff's costs in these proceedings be borne by the first defendant. (6) That there be liberty to apply. 4 The application first came up for hearing before Judith Prakash J on 13 February 1998 but was adjourned as Miss Toh's solicitors indicated that she wished to file an affidavit in reply to Ms Foong's affidavit filed on 22 January 1998. Judith Prakash J adjourned the application to 16 February 1998 and recorded that: (1) no further affidavits were required as the issue was one of law only; and (2) if a further adjournment was sought, the party requesting for such adjournment shall bear the costs of adjournment. 5 At the adjourned hearing on 16 February 1998 before Lai Siu Chiu J, Miss Toh through her solicitors informed the court that she thought that a further affidavit was necessary but that she was prepared to proceed without such affidavit if the court was of the view that the issue was strictly one of law.

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The decision below 6 The learned judge gave judgment for Ms Foong in the following terms: (1) That there was no uncertainty in the wording of cl 2 of the will of the testator but that the question of necessity was no longer in issue because the first defendant (Miss Toh) had alternative accommodations since about May 1997 when the apartment at # 03-01 Block 29 Mount Sinai Rise, Singapore was transferred to the first defendant and the first defendant had since September 1987 obtained rental income from the said apartment. (2) That on the true construction of the will of the testator, the property at 38 Princess of Wales, Singapore was an absolute gift to the plaintiff (Ms Foong). (3) That the plaintiff recover possession of the property at 38 Princess of Wales, Singapore on the ground that she was entitled to possession thereof and that the first defendant, Toh Eng Lan, being the person in occupation, was in occupation without licence or consent. (4) That the first defendant vacate the property at 38 Princess of Wales, Singapore by 28 February 1998. 7 At the outset, the learned judge noted that the object of Ms Foong's application was in substance to recover possession of the property. Therefore the first issue was whether the testator had made an absolute gift of the property to Ms Foong to begin with. For there to be an absolute gift, ... the court must be satisfied, on the construction of the will as a whole, that the testator has segregated the gifted property from the remainder of his estate once and for all, and that behind the trusts engrafted on the gift there remains an interest vested in the legatee which will spring up and take effect so far as the engrafted trusts do not exhaust the subject-matter of the gift. ... ( Theobald on Wills (15th Ed, 1993) at p 523.) Applying this test to the words of cl 2 of the will, the learned judge was satisfied that the property was segregated from the remainder of the estate and that the interest in the property was vested in Ms Foong. The property given to Ms Foong by the testator was an absolute gift, creating in Ms Foong an absolute interest instead of a life interest. 8 However, a gift 'so long as certain circumstances continue' ... may create an estate in fee simple or absolute interest determinable on those circumstances ceasing to exist ( Williams on Wills (7th Ed, 1995) at p 751.) So the second issue was whether Ms Foong's absolute interest in the property was subject to a defeasance clause by virtue of the subsequent direction in cl 2. On one view, Ms Foong's absolute interest would determine if either she did not allow the younger daughter and the son to stay in the property, or she did not allow Miss Toh to do so where necessary. Ms Foong submitted, relying on several textbook authorities, that the direction in cl 2 of the will whereby the testator made provision for all the defendants to stay in the property was void for uncertainty. For instance, there was the following proposition in Theobald on Wills at p 652: A condition requiring a person to provide a home for another is void for uncertainty, unless, perhaps, the provision is to be 'free of cost or charge'. In the absence of a gift over the provision of the home will be regarded as precatory rather than as being subject to a condition: in either case the testator's intention is ineffective. And in Williams on Wills at p 357 it is stated:

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Such a condition [a condition to 'provide a home'] is not susceptible of any such clear and definite interpretation as enables the court to say what it means and what obligation it involves and being a condition subsequent is void for uncertainty. 9 Re Brace; Gurton v Clements & Ors [1954] 1 WLR 955 was cited as authority for the above passages. In that case, a testator by his will provided: I give and bequeath unto my daughter Irene my house at 25 Apton Road, Bishop's Stortford, together with the contents of the same and any possessions I may have, on condition that she will always provide a home for my daughter Doris at the above address. It was held that, in the absence of a gift over, the condition should be construed as precatory only; and further that the words 'to provide a home for ...' were so vague as to be unintelligible, so that regarded as a condition of defeasance they were void for uncertainty. According to Vaisey J, the question to be asked regarding the condition subsequent, as stated at p 959 of the judgment, was whether the court was 'able to see clearly ... what it was the testator meant?' Examining the condition in that case, Vaisey J was of the opinion that it was not possible to see clearly what it was the testator meant. He said at p 957: I confess to feeling a very grave doubt whether the conception of one person A providing a home for another B is susceptible of any such clear and definite significance as to enable anybody to say what it means or what obligations it entails. Obviously, the provision of a home would involve giving shelter from the elements; but, if board and lodging, clothing, food, and so forth, have to be provided, on what scale or by what standard is the obligation to be imposed? Another way of stating the difficulty is to ask whether providing B with a home includes or implies maintaining him. I cannot read 'provide a home for' as equivalent to 'maintain and provide a home for'; had those been the words, I might not have felt any difficulty. At p 958: What is meant by 'providing a home', without any reference, as in Re Richardson, to costs and expenses? It seems to me to be an expression with a certain general significance applicable in various contexts and having in each case a very different meaning. Of a negligent mother, for example, it might be said that none of the children were at school, and that she did not really 'provide a home' for them, in the sense that she allowed them to run loose, with that sort of idea of 'providing a home'. That is not like 'providing shelter' and 'allowing them to reside' or anything of that sort, but it is 'providing a home'; and 'home' is a word, in my judgment, of an extremely wide and varied significance. The expression 'provide a home for' as a condition subsequent was not only ambiguous but also lacked any ascertainable significance at all. The nub of the problem was that (per Vaisey J at pp 961-962 of the judgment): ... a condition subsequent must never be a condition in which a standard has to be applied. Any attempt to introduce standards into the condition subsequent will create difficulty, and I have often thought of those words; if one has to apply a standard and is not told what standard to apply, the condition is not one which can be properly

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imported into the conditions. In the present case, what sort of 'home' do the words 'provide a home' mean? How comfortable is it to be? Is it to be a mere shelter from the elements or a place where, so to speak, one feeds with the family or eats one's meals below stairs or what? Nobody can tell; it is all entirely unqualified. ... 10 To sum up, the difficulties which Vaisey J had with the phrase were first, that it was different from such phrases as 'providing shelter' or 'allowing them to reside' in that the concept of a home was more than mere shelter and possibly included a family atmosphere or proper discipline. Second, it left unanswered the question of costs and expenses, in other words, there was ambiguity as to whether the beneficiary was to bear the costs and expenses or to receive the provisions free of charge. Third, it was not clear what standard of provision was required, whether it included only lodging or whether it extended to food and clothing, and if so to what extent. The learned judge, however, was of the view that the clause in Re Brace was not the same as the direction in cl 2 of the will in the present case. In her own words: ... The phrase 'provide a home' was much more ambiguous than the phrase 'allow ... to stay in this house'. The latter phrase had no ambiguity as to whether it extended beyond mere lodging to include clothing, food, or a family atmosphere. Neither did it open itself to a wide variation in standards of obligation. The only question left open was whether the beneficiary was allowed to stay without payment of rent or maintenance. However, the presence of the phrase 'should it be necessary for her to do so' suggested that the intention of the testator was to allow the first defendant (Miss Toh) to stay free of cost or charge. Under cl 2, the first defendant would have been allowed to stay only if it was necessary for her to do so, and one of the main factors regarding necessity was whether the first defendant had sufficient financial resources to secure alternative accommodations. Since one of the requirements for allowing the first defendant to stay in the property was that she was under some degree of financial difficulties, it would not have made sense to read cl 2 as requiring the first defendant to pay for her stay. 11 A condition subsequent was void for uncertainty only when it was not possible to ascertain, at any material time, whether or not it had taken place. In the present case, it was possible to ascertain whether the condition subsequent had taken place. It would have taken place if Ms Foong did not allow Miss Toh to stay in the property free of cost or charge, where it was necessary for Miss Toh to do so. The learned judge therefore concluded, for the above reasons, that there was no uncertainty in the wording of cl 2 of the will. 12 The next question was whether it was necessary for Miss Toh to stay in the property. This was answered in the negative as Miss Toh had (since about May 1997) alternative accommodations at the apartment which the testator had devised to her by cl 3 of his will. She had also been in receipt of all the rental income from the apartment. 13 The learned judge then dealt with Ms Foong's submission that because of the absence of a gift over, the direction in cl 2 of the will was merely precatory and not a condition. Ms Foong again relied on Re Brace where Vaisey J said at p 962: In my view, in the absence of an express gift over, the proper way of construing these words is to regard them as precatory, merely a guide to what the testator's aim and object was in choosing this one daughter as the recipient of his bounty, although the words themselves, I agree, are not expressed in the form of a request but are drafted as a

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condition. For the reasons which I have tried to explain, I think that they must be construed not as a condition, although in form that would appear to be their result. This submission was rejected by the learned judge, who did not think that it was a rule of construction that, where there was an absence of an express gift over, the only way of construing the direction was to regard it as precatory instead of as a condition. In holding the condition void for uncertainty, Vaisey J's main concern was that the phrase 'provide a home for' did not avail itself of any clear meaning and the absence of an express gift over was merely an additional factor to be taken into account. Whether a condition subsequent was void depended on whether it was illegal, contrary to public policy, uncertain, impossible, repugnant or imposed in terrorem. It did not depend on whether there was a gift over. The absence of a gift over was substantially a separate matter from the validity of the condition subsequent. 14 The learned judge therefore held that there was no uncertainty in the wording of cl 2 of the will but that the question of necessity was no longer in issue. As the property was an absolute gift to Ms Foong and Miss Toh was in occupation without licence or consent, she was ordered to vacate the property. 15 Against the decision of the learned judge both Miss Toh and Ms Foong appealed in CA 56 and 65 of 1998 respectively. At the conclusion of the hearing we dismissed CA 56/98 and allowed CA 65/98. We now give our reasons. We begin with the arguments put to us. Civil Appeal No 56 of 1998 Contentions of the appellant, Miss Toh 16 Miss Toh appealed only against that part of the learned judge's finding on the question of necessity, that is, that it was not necessary for her (Miss Toh) to stay in the property. Miss Toh contended that the learned judge ought not to have decided on the question of necessity: (1) when this was not part of Ms Foong's application in OS No 73 of 1998; and (2) without the benefit of her (Miss Toh's) affidavit filed on 28 February 1998 as the question of necessity was one of fact. Contentions of the respondent, Ms Foong 17 In reply to Miss Toh's first contention, that is, that the learned judge ought not to have decided on the question of necessity when this was not part of Ms Foong's application in OS No 73 of 1998, Ms Foong contended: (1) that the learned judge was entitled to decide on the question of necessity as this was directly relevant to her (Ms Foong's) application the purpose of which (as the learned judge observed) was to recover possession of the property; (2) that she had made the standard prayer for 'further or other order' in her application; (3) that the determination of the learned judge on the question of necessity was not inconsistent with the other reliefs prayed for; and (4) that this was supported by the interpretation of the expression 'further or other relief' by the Court of Appeal in Huang Han Chao v Leong Fook Meng & Anor [1991] SLR 286, [1991] 3 MLJ 337. 18 In reply to Miss Toh's second contention, Ms Foong contended: (1) that Miss Toh could have filed an affidavit at the adjourned hearing on 16 February 1998 before the learned judge but chose not to do so and did not object when the application was proceeded with; (2) that Miss Toh had ample

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time to file an affidavit had she been so minded since the cause papers in her (Ms Foong's) application were served on Miss Toh on 6 February 1998; (3) that the matters which Miss Toh claimed she was prevented from raising were within her knowledge well before the hearing of Ms Foong's application on 16 February 1998 and that Miss Toh's affidavit filed on 28 February 1998 did not add anything new by way of evidence; (4) that it was not open to Miss Toh to refer to her affidavit as it constituted further evidence of matters arising before the date of the decision from which the appeal was brought and which Miss Toh did not seek the leave of the court to admit; and (5) that in any event, all the relevant facts had been disclosed in her (Ms Foong's) affidavit filed on 22 January 1998. Civil Appeal No 65 of 1998 Contentions of the appellant, Ms Foong 19 Ms Foong appealed only against that part of the learned judge's decision on the question of uncertainty, that is, that there was no uncertainty in the wording of cl 2 of the testator's will. She essentially contended first, that the direction in cl 2 of the will was uncertain and the direction in cl 2 should thus be declared void for uncertainty as there was ambiguity in the standard by which she was to allow the respondents to stay in the property. Second, the direction in cl 2 of the will (devising the property to the appellant absolutely if she allowed the respondents to stay in the property) was analogous to a condition requiring her to 'provide a home for' the respondents, and such a condition was void for uncertainty: Re Brace. Third, in the absence of a gift over the direction in cl 2 of the will was merely precatory and did not bind her. Fourth, even if cl 2 conferred upon Miss Toh the right to stay in the property, she had given up that right when she agreed to vacate the property upon the transfer of the apartment to her. The appeals Preliminary 20 There are two preliminary points to be made before we proceed to the substance of the appeals. First, both the younger daughter and the son had indicated at the outset that they did not intend to contest the appeal. In particular, counsel for the third son, Mr Sng, agreed that his role was peripheral (as the learned judge had observed) and confirmed that the son would abide by the decision of this court. Second, it is clear that what Ms Foong sought was in effect an order in terms of prayer 1 in OS No 73 of 1998, that is, for this court to hold that the direction in cl 2 of the will was void for uncertainty. If we were to so hold, the question of necessity (the subject-matter of the appeal in CA 56/98) would not arise at all. We thus propose to deal with CA 65/98 first before moving on to CA 56/98. Civil Appeal No 65 of 1998 21 The premise of the learned judge's decision that the direction in cl 2 of the will was not void for uncertainty was that the expression 'allow ... to stay in this house' was distinguishable from the expression 'provide a home for' in Re Brace. To recapitulate, the objections to the latter

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expression were first, that the concept of providing a home encompassed more than the mere provision of shelter or permission to reside; second, that it left unanswered the question of who was to bear the costs of such provision and third, that there was ambiguity as to what standard of provision was required. In contrast, the former expression was limited to the provision of lodging only and the question of who was responsible for the costs incurred was answered by the criterion of necessity which suggested that Miss Toh was to stay free of charge. 22 In our opinion, however, the same difficulties which dogged the expression 'provide a home for' in Re Brace also attached to the expression 'allow ... to stay in this house' in the present case. The word 'stay' is defined in The New Shorter Oxford Dictionary (1993) at p 3041 in the following manner: [As a noun:] (1) The action or fact of staying, being present, or dwelling in one place; ... (the duration of) a period of temporary residence. [As a verb:] (2) Be present or dwell in a place for a (specified) period; reside with a person as a guest. (3) Dwell or reside on a permanent or regular basis. 23 Although it could be argued that, unlike the expression 'provide a home for', the direction 'allow ... to stay' did not extend to the provision of food or clothing, the word 'stay' was ambiguous in that it was by no means clear whether what was meant was 'temporary' or 'permanent' residence or residence on a 'regular basis'. As presently framed, the direction in cl 2 of the will was so broadly worded as to be unqualified as to the times or periods the respondents, in particular the younger daughter and the son (as their right to 'stay' was not qualified by the criterion of necessity) were to be allowed to stay in the property. No provision was made in the will for the possibility that Ms Foong may desire to dispose of the property even where it was no longer 'necessary' for Ms Toh to stay there. This was because the younger daughter and the son's right to stay in the property was not qualified by the criterion of necessity. To paraphrase Vincent J in National Mutual Trustees Ltd and Another v Gooding [1990] VR 791 at p 797, the extraordinary situation could arise in which although the younger daughter and the son might decide that they no longer wished to stay in the property (either with or without Ms Foong), Ms Foong would nevertheless not be able to dispose of the property in case they changed their mind. Indeed this was Ms Foong's concern and the reason for her bringing this appeal. Although the evidence, which was not challenged, was that the younger daughter had vacated the property and that the son had never exercised his right to stay in the property (if it existed), the question was whether or not they could assert their right to stay in future. Counsel for Ms Foong, relying on Re Potter [1970] VR 352, submitted that if the direction in cl 2 of the will conferred upon the younger daughter and the son a right to stay, that right was terminated when they abandoned it. We did not think it necessary to decide whether Re Potter was on all fours with the present case, but would only say that the right of the beneficiary to reside in that case was qualified by the phrase 'so long as he desires' in contradistinction to the word 'whenever'. Menhennitt J thus held that the

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beneficiary's right was to reside so long as he desired but would terminate if he abandoned it. In contrast, the younger daughter's and son's right to stay was unqualified and left open the question whether or not they could cease their stay and resume it again at a later date. 24 Further it was also by no means clear that the intention of the testator was to allow Miss Toh to stay free of charge. Admittedly the criterion of necessity (if one accepts that the criterion would not be satisfied if Miss Toh had alternative accommodations) suggested this as a possibility, but it was equally plausible that the intention of the testator was that Miss Toh should pay at least a nominal sum as a contribution towards the costs of her stay in the property. At any rate we could not simply read the words 'free of cost or charge' into cl 2 of the will: Re Brace, where it was suggested (at p 962 of the judgment) that the addition of the words 'free of cost or charge' (to the person to whom the home was to be provided) may have saved the condition. 26 Of course, the court must 'judge the degree of certainty with some measure of common sense and knowledge and without excessive astuteness to discover ambiguities': per Lord Wilberforce in Blathwayt v Cawley (Baron) & Ors [1976] AC 397 at p 425. But in the present case, the ambiguity inherent in the direction 'allow ... to stay in this house' (as explained above) was such that it was not possible to envisage what it was that the testator meant. In other words, this was a case of 'conceptual uncertainty' and not 'evidential uncertainty', and it has been said that conceptual uncertainty (but not evidential uncertainty) may avoid a condition subsequent. The difference was stated by Lord Denning MR in Re Tuck's Settlement Trusts, Public Trustee v Tuck [1978] Ch 49 at p 59, [1978] 1 All ER 1047 at p 1051 as follows: 'Conceptual uncertainty' arises when a testator or settlor makes a bequest or gift on a condition in which he has not expressed himself clearly enough. He has used words which are too vague and indistinct for a court to apply. They are not sufficiently precise. So the court discards the condition as meaningless. It makes it of no effect, at any rate when it is a condition subsequent. 'Evidential uncertainty' arises where the testator or settlor, in making the condition, has expressed himself clearly enough. The words are sufficiently precise. But the court has difficulty in applying them in any given situation because of the uncertainty of the facts. It has to resort to extrinsic evidence to discover the facts, for instance to ascertain those whom the testator intended to benefit and those whom he did not. Evidential uncertainty never renders the condition meaningless. The fcourt never discards it on that account. It applies the condition as best it can on the evidence available. 26 In our view, it was quite unarguable that the direction in cl 2 in the present case fell squarely within the first category, that is, that it was void for conceptual uncertainty. Another way of testing the matter would be to ask whether (in the case of a condition subsequent) the court is able to see from the beginning precisely and distinctly upon the happening of what event the preceding vested interest is to determine: per Lord Russell of Killowen in Clayton v Ramsden [1943] AC 320 at p 326. Alternatively, it has been said that whether the condition has or has not taken effect must

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be capable of ascertainment at any given moment of time: per Fry J in Re Viscount Exmouth; Exmouth v Praed (1883) 23 Ch D 158 at p 164. In the present case, one might postulate that the condition subsequent would have taken place if Ms Foong either did not allow the younger daughter and the son to stay in the property or Miss Toh to do so where necessary. However it would not be possible to come to this conclusion without first answering the a priori question of the meaning of the term 'stay'. As such, it was not possible to envisage when or how Ms Foong's absolute interest in the property would determine. We were therefore compelled to hold that the direction in cl 2 of the will was void for uncertainty. 27 In the event we did not think it necessary to consider in great detail Ms Foong's other contentions (1) that the direction in cl 2 of the will was merely precatory; and (b) that Miss Toh had given up her right to stay in the property when she agreed to vacate it upon the transfer of the apartment to her. First, the language used by the testator in the direction in cl 2 did not support the contention that it was merely precatory; indeed it seemed to suggest the contrary -- that the testator intended it to be a binding condition. The absence of a gift over was a neutral factor because, as the learned judge pointed out, the absence (or presence) of a gift over had no correlation with the validity of the condition subsequent. Second, there was no concrete proof that Miss Toh had given up her right to stay in the property or that she had agreed to vacate it upon the transfer of the apartment to her. Ms Foong relied on a letter dated 17 March 1995 from her then solicitors, Messrs Harold Seet & Co to Miss Toh's solicitors, Messrs Tang & Partners where at p 3 whereof it was stated: Upon the transfer of the Marbella Court property [the apartment] to your client [Miss Toh], your client will vacate from the Princess of Wales property. This was but a bare assertion which Miss Toh denied. The fact that Miss Toh did not reply to Messrs Harold Seet's letter was insufficient as silence is equivocal and the inference could not be drawn that what was stated in the letter was true. It therefore could not be said that Miss Toh had given up her right to stay in the property. 28 Be that as it may, we would add that even if the direction in cl 2 were held sufficiently certain to be enforceable, it created in the respondents a personal right to stay in the property only as opposed to a proprietary right. Lord Wilberforce stated the essential characteristics of a proprietary right in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at p 1248: Before a right or interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. Or, as one textbook authority puts it (Pearce and Stevens, The Law of Trusts and Equitable Obligations (1995) at p 73): The central characteristic of a proprietary right is that it is capable of enduring through changes in the ownership of the property to which it relates so that it will bind the new owner. It is not purely a personal right that can only be exercised against the previous owner so

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that it is unenforceable against the subsequent owner, who is a different person ... Thus the respondents' right to stay in the property, if it existed, was only a personal right enforceable against Ms Foong. If she were to sell the property, they would not be able to assert that right against the new owner. 29 Accordingly we allowed this appeal for the foregoing reasons and granted an order in terms of prayer 1 of Ms Foong's application in OS No 73 of 1998. The result was that Ms Foong took the gift of the property free from the condition subsequent. It followed that CA 56 of 1998 must be dismissed as the question of necessity became otiose once the direction in cl 2 of the will was avoided. Nonetheless we gave careful consideration to the respective contentions of Miss Toh and Ms Foong and will therefore now set out our conclusions thereon. Civil Appeal No 56 of 1998 (1) Question of necessity not part of application in OS No 73 of 1998 30 We were unable to accept Miss Toh's contention that the learned judge ought not to have decided on the question of necessity when this was not part of Ms Foong's application in OS No 73 of 1998. The short answer to it was that the learned judge was perfectly entitled to decide on the question of necessity. One of the prayers in OS No 73 of 1998 was for a determination that the direction in cl 2 of the will (making the devise of the property to Ms Foong conditional upon Ms Foong allowing the defendants to stay in the property) was void for uncertainty. In coming to her decision, the learned judge would have had to consider in particular the meaning of the term 'stay' and, in relation to Miss Toh, whether or not it was 'necessary' for her to stay in the property. The question of necessity was thus of direct relevance in Ms Foong's application. It was also the considered opinion of this court that the learned judge's decision on the question of necessity could not be faulted. It would have been necessary for Miss Toh to stay in the property only if she did not have alternative accommodations. If the apartment had been devised to her (and this was not in dispute), it cannot be said that it was necessary for her to stay in the property. Necessity imports that which is essential, that which cannot be dispensed with or done without, a requisite or basic requirement of life. It may have been convenient or expedient for Miss Toh to stay in the property but it was certainly not necessary for her to do so. 31 On the other hand, Ms Foong's reliance on Huang Han Chao v Leong Fook Meng was misplaced. In that case, the appellant had on appeal pursued a claim that was inconsistent with the specific relief sought in his pleadings and the question was whether he was procedurally barred from doing so. The Court of Appeal held, inter alia, that it was not open to the appellant to seek on appeal relief that was inconsistent with that asked for in the court below. Huang Han Chao therefore stands for, inter alia, the proposition that the standard prayer for 'further or other relief' must be read with and limited by the facts alleged and the terms of the prayer for specific relief. It cannot be used to introduce relief inconsistent with that which was expressly asked for. The decision of the Court of Appeal on the ambit of the expression 'further or other relief' did not apply to the

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present case where the learned judge's determination on the question of necessity constituted an integral part of her decision on the issue of uncertainty. In other words, it was not necessary for Ms Foong to rely on the fact that she had asked for 'further or other relief' in order to justify the learned judge's finding on the question of necessity as that finding did not constitute 'relief'. (2) Miss Toh's affidavit filed on 28 February 1998 32 We next considered the contention that the learned judge ought not to have decided on the question of necessity without the benefit of Miss Toh's affidavit filed on 28 February 1998. The question of necessity was undoubtedly one of fact. There was also no doubt that Miss Toh's affidavit constituted further evidence of matters arising before the date of the decision from which the appeal was brought and the admission of which, by virtue of O 57 r 13(2) of the Rules of Court and s 37(2) of the Supreme Court of Judicature Act (Cap 322) ('SCJA'), the leave of the court is required. In her affidavit, Miss Toh sought to explain why she thought it was necessary for her to stay in the property even though the apartment had been devised to her. However the matters deposed to in Miss Toh's affidavit arose before the date of the learned judge's decision (16 February 1998) and this was apparent from the following paragraphs of the affidavit: 5 ... the deceased and I were close friends since 1974. He was diagnosed to be suffering from cancer in 2nd quarter of 1984 and was receiving treatment. At his request, I moved into his house to take care of him till end of 1984 when he got better. Then I moved back to stay with my sister. During this time, we planned to get married as soon as he got his divorce through so that I could be by his side to take full care of him. Unfortunately sometime in mid 1985, he fell ill again and he had to go for an operation of his thyroid. Immediately after his discharge from hospital, I moved into his house again at his request to take care of him. In the beginning of 1986, he suffered a relapse of his cancer and he had to go for various treatments again. For about a year until he died on 18 December 1986, I nursed and comforted him and took him to see various doctors and Chinese physicians for treatment, cooked for him and looked after his household. I also bought and prepared for him regularly Chinese herbs such as ginseng to help him fight his cancer. Out of his care and concern for me, he told me that he had made a will permitting me to stay in the house at No 38 Princess of Wales, Singapore after his death and giving me an apartment at Block 29 Mount Sinai Rise, # 03-01, Singapore (Marbella Court) which I could let out to pay for my monthly expenses. He told me that when I had sufficient savings from my rental income, I could buy another property for my own stay. ... [Emphasis added.] 7 I am a Malaysian, single and is [sic] not eligible to buy a HDB flat. I could not afford to buy a private property. The income from the rentals of the Marbella Court property was [sic] mainly used to pay for my living expenses in accordance with the deceased [sic] wishes. Over the years, I had

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also managed to save some money but it is not sufficient to buy a small flat yet. A small private flat would cost at least $ 500, 000 to $ 600,000. As such, I have no choice but to continue to reside at No 38 Princess of Wales, Singapore for the time being. ... 33 The proper procedure would have been for Miss Toh to seek the leave of the court to admit the affidavit by way of motion, but this was not done. Indeed Miss Toh did not even seek to justify the admission of her affidavit by reference to the established principles governing the admission of further evidence but proceeded on the basis that she was entitled to refer to her affidavit as of right. This was plainly incorrect. Order 57 r 13(2) of the Rules of Court provides for the adduction of further evidence on appeal: The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. [Emphasis added.] Similarly, s 37 of the SCJA provides: (1) Appeals to the Court of Appeal shall be by way of rehearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. (2) Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. (3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, except as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal. [Emphasis added.] 34 Clearly the leave of the court is required for the adduction of further evidence. In particular, special grounds are needed to justify the admission of evidence as to matters which occurred before the date of the decision from which the appeal is brought. The criterion of 'special grounds', as Pinsler put it in his Civil Practice in Singapore and Malaysia (1998), Ch XXXV at para 579, is a more restrictive category because it involves more than an exercise of discretion: there must be special grounds for the admission of the evidence. The expression 'special grounds' is not defined in either the Rules or the SCJA. In the oft-quoted case of Ladd v Marshall [1954] 1 WLR 1489, Denning LJ set out the conditions on which such evidence ought to be received: ... first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an

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important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. 35 Before us Miss Toh did not make an application to admit her affidavit. Even if she had done so we would have been disinclined to allow it for the following reasons. To begin with, the affidavit could have been obtained with reasonable diligence for use at the trial. Miss Toh had more than sufficient time to file an affidavit prior to the hearing before the learned judge on 16 February 1998 but did not do so. At the hearing itself, she was prepared to proceed without her affidavit and did not object when the hearing was proceeded with. Further we were not convinced that the affidavit would have had an important bearing on the decision of the learned judge in relation to the question of necessity. Lastly, the evidence contained in the affidavit was not particularly cogent. It could be characterised as bare assertions on the part of Miss Toh which did not advance the court's inquiry into the question of necessity. 36 In the premises we found ourselves unable to accept Miss Toh's contentions on the question of necessity and dismissed this appeal accordingly. Order accordingly.