I've been asked to write something about the Lee Suet Fern case, so I've done a quick summary of the judgment, and added my brief views on the matter. This is a politically explosive matter concerning high profile people in my industry, so don't expect any spicy takes from me! (Not publicly on Facebook at least.)
LACK OF DILIGENCE
At [149](a)-(b): LSF had made material representations to
LKY in the execution process that she had no basis to make, which is, at best, irresponsible. Namely, she told him that the version of the Will he was signing was identical to the one he executed several versions ago (ie this was simply a reversion to a Will he had executed previously). In reliance of this,
LKY then went ahead to sign the Will. As it turns out, there actually existed several material differences from the version he previously signed. Crucially, LSF had not seen the executed previous version, so she was in no position to assure him that it was the same. As such, she failed to ascertain that the Will truly reflected the testator's (
LKY's) intentions, which is a cardinal sin for Will drafting.
CONFLICT OF INTEREST
[149](c)-(d), (h): By playing such a central role in the execution of
LKY's last Will while being the wife of a major beneficiary as set out above, LSF was in a position of conflict of interest as a lawyer. As such, she should have advised
LKY to seek independent legal advice. She did not. Had she been in a solicitor-client relationship, this would have been a grave breach. Nonetheless, she had divided loyalties, being married to LHY, a beneficiary, and also servicing
LKY as she would a client.
OTHER QUESTIONABLE ACTIONS
[149](e)-(g): LSF allowed
LKY to execute the Will despite knowledge of the above, and left KKL out of most of the material correspondence. She then failed to fully inform her what happened even after the fact. She did not clarify with
LKY who drafted the last Will, and if it was indeed identical to an earlier Will he had executed.
The court also found that she had been less than honest in trying to minimise her involvement to the court, although they also found that she did not act dishonestly in getting the Will executed.
WHY NOT STRUCK OFF?
LSF got off lightly, all things considered, because she was found not to be in a lawyer-client relationship with
LKY. As such, her transgressions were only poor form for a lawyer, but did not breach the lawyer-client relationship, which is far more serious. All lawyers owe duties to their clients, and failure to advance one's client's best interests, acting in conflict of interest are serious breaches of a lawyer's duties.
Whether there exists a lawyer-client relationship will depend on the facts. Even if no contract was signed, if BOTH parties understood there to be one and acted in that manner, such a relationship can arise (judgment at [61]).
In this case, the court found that a lawyer-client relationship did not exist (judgment at [133]) because while LSF viewed herself as acting as
LKY's lawyer (judgment at [127]),
LKY did not view LSF as being his lawyer (judgment at [130]), as he thought Kwa had a hand in drafting the final Will.
MY VIEWS
This is a very ugly and public spat. I hope it's over.
As a lawyer, it should have been clear to LSF that the situation was one where she was in a position of conflict. As such, she ought to have gone out of her way to ensure that there wasn't even the slightest appearance of impropriety. She could have safeguarded herself by waiting for KKL to get get back, and/or at least keeping KKL copied in ALL correspondence. Whether inadvertently (LHY was the first to omit KKL from the chain, if she hit "reply all" thereafter, she may not have realised KKL was no longer looped in) or otherwise, she did not.
While the speed with which the Will was signed may well have been on
LKY's instructions, again, given how sensitive this all was, every effort should have been made to keep KKL or her staff in the loop to avoid future allegations of impropriety.
Personally, though, I think the final Will, with the demolition clause reinstated, is more consistent with the public stance
LKY has had regarding his house all these years.
I am grateful that 38 Oxley will not be demolished, because I feel it is a part of our national heritage. But
LKY of all people should have known that the demolition clause cannot override the State: he pushed through reforms in land law that gave the State ultimate power over property here. Many property owners have been displaced over the years, sometimes with inadequate compensation, to make way for development. But would we have had such progress if proprietary rights were recognised? The
URA would've spent years litigating against stubborn landowners, or a fortune to buy them out. If PM Lee or the government of the day were so minded, an act of Parliament could have been passed to preserve 38 Oxley, notwithstanding what the Will said.
Still, I think this whole matter is actually a proxy fight, and the underlying issues remain unaddressed. This kind of family thing often no right no wrong one, and those of us who are not privy to what's going on can only speculate.
But hopefully this brings the whole unhappy episode to a close. I think the public is getting quite tired of seeing the Lee family dirty laundry being aired in public, and expensive legal cases being brought to settle private family affairs.
SL of LVM
