Lawyer Lee Suet Fern was merely playing an “administrative role” in the execution of the late Lee Kuan Yew’s final will, her defence lawyers argued on Thursday (13 August).
Senior Counsel Kenneth Tan and former Attorney-General Professor Walter Woon argued — in the hearing of Mrs Lee’s appeal against the Disciplinary Tribunal (DT)’s findings — that Mrs Lee’s role in Mr LKY’s last will bore no conflict of interest.
This hearing on Thursday, held via Zoom, was presided by Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Justice Woo Bih Li.
As far as the final will is concerned, Mrs Lee was not the lawyer and Mr LKY’s regular lawyer Kwa Kim Li had never ceased being LKY’s lawyer, said Mr Tan. Mr LKY’s first will was drafted by Mrs Kwa with his input.
Pointing out that Mr LKY did not respond to the email from Mrs Lee — which the Law Society had relied on as proof of her being an implied solicitor of Mr LKY — Mr Tan argued that Mr LKY merely needed someone to arrange his will to be engrossed.
He added that Mrs Lee’s colleague Bernard Lui testified that the only change made to the document signed by Mr LKY was the date of 2011 when the first will was drafted, which would imply that it was a pure engross.
Prof Woon highlighted that Mrs Lee had merely forwarded the will and “got members of her firm to stand by”.
“Anyone who has dealt with MM would understand him. He was not known to be a patient man. If he wanted the will, they were ready.
“He read the will, he signed the will, initialled on every page, called for it the following day, told his personal assistant to send it to (Ms Kwa) and tell her it’s the agreement among the siblings,” he stressed.
Mr Tan and Prof Woon branded the DT’s findings “patently unsafe and wrong” and called for all charges against their client to be dropped.
In its findings, released in February, the DT agreed with the Law Society that Mrs Lee and Mr LKY stood in a solicitor-client relationship.
The DT said that Mrs Lee had failed to advance her client’s interest — instead, she was found to have promoted her own interest and/or the interest of her husband Lee Hsien Yang ahead of Mr LKY’s interest.
She was also found by the Tribunal to have fallen short of her duty to advise Mr LKY to be independently advised in respect of his intention to give a one-third share of his estate to his younger son Mr LHY.
The Law Society on Thursday pushed for Mrs Lee’s disbarment, relying on the DT’s findings that she has engaged in “gross improper professional conduct” as a lawyer by having “misled” her frail and ailing father-in-law into signing his last will.
Mrs Lee, who is the sister-in-law of Prime Minister Lee Hsien Loong, was first faced with charges related to professional misconduct following a complaint filed by the Attorney-General’s Chambers (AGC) to the Law Society on 4 December 2018.
By law, the Society is obligated to submit an application to the Chief Justice to appoint a Disciplinary Tribunal, as the complaint was lodged by AGC.
One charge pertained to how Mrs Lee had failed to advance the late Mr LKY’s interest as his retainer, unaffected by her own interest and/or that of her husband.
She had allegedly demonstrated this by preparing for and arranging the execution of the will, in which her husband was to get a one-third share of the estate as a result.
The second charge accused Mrs Lee of breaching the rules as a retainer by acting on the one-third share and failing to advise Mr LKY to be independently advised on the “significant gift” to be bestowed upon Mr LHY.
Mrs Lee should have denied Mr LKY’s instructions: The Law Society
Representing The Law Society, lead counsel Koh Swee Yen on Thursday urged the Court of Three Judges to uphold the DT’s findings.
She argued that Mrs Lee had contravened the Legal Profession Act and Legal Profession (Professional Conduct) Rules, and highlighted that as a veteran lawyer, Mrs Lee should have been aware of her duty to advise Mr LKY to seek independent advice the way he had done for his previous will drafts.
The late LKY has said that he wanted lawyer and his niece Kwa Kim Li to revert his first will — in which his children were to be given equal shares of his estate — overriding the other six wills he’s signed over the years by adding a codicil.
The last will also reinstated the demolishment clause, which stipulates that Mr LKY’s home at 38 Oxley Road should be demolished following his death.
Relying on an email sent by Mrs Lee with regards to the final will, Ms Koh submitted that Mrs Lee — knowing that Ms Kwa was unavailable at the time — took it upon herself to prepare the final will and come up with a version of it herself.
Ms Koh stressed that Ms Kwa was Mr LKY’s lawyer for his past six wills and that Ms Kwa has kept the original of all six wills.
However, Ms Kwa was kept out of the last will, and Mrs Lee’s firm instead held on to the original copy of the seventh and final will — a point questioned by the Judges who noted that Mrs Lee had copied Ms Kwa in an email about the final will.
This, Ms Koh argued, demonstrated that Mrs Lee was indeed acting as a solicitor for Mr LKY.
Later in the hearing, Justice Woo highlighted that the late Mr LKY, who was a lawyer himself, had drafted the codicil without the assistance of a solicitor, which raises the question of whether it was necessary for him to rely on a solicitor as what the Law Society is suggesting.
Ms Koh further highlighted said that Mrs Lee had sent Mr LKY a 2011 draft copy of his first will to sign.
It was said that Mrs Lee had also arranged for lawyers from her own firm to engross it, making it his final legal will.
The Law Society also argued that Mrs Lee failed to advise Mr LKY on the differences between the penultimate will and the draft of the last will.
Justice Prakash asked if Ms Koh was implying that Mrs Lee had manoeuvred herself into becoming Mr LKY’s lawyer. Ms Koh agreed.
Justice Prakash earlier asked Ms Koh on why the Law Society did not press charges against Mrs Lee if such was the case. However, Ms Koh did not provide any clear response on this point.
Chief Justice Menon later chided Ms Koh for spending time arguing an irrelevant matter in trying to prove the existence of a retainer between Mrs Lee and Mr LKY in respect of the last will.
He pointed out that the validity of the will has not been contested by either its executors or its beneficiaries.
“The only question before us pertains to whether (Mrs Lee) was in a solicitor-client relationship, and if she was, whether she discharged her duties, and if she wasn’t, whether there was some other aspect of her conduct that was unacceptable,” said Chief Justice Menon.
However, Ms Koh argued that the DT’s findings regarding Mrs Lee and Mr LHY’s purported lack of credibility should be considered the Court in deciding to impose sanctions.
Family context cannot be denied: Mrs Lee’s defence lawyers
Mrs Lee’s lawyers hammered in on the point that there was no conflict of interest in the case.
Mr Tan argued that the DT had “totally ignored” important evidence favourable to Mrs Lee, such as that her relationship with LKY was far removed from any commercial setting.
“Between family members, there is trust, some expectations, but before you are a lawyer, you are a family member. It cannot be that because a lawyer is also a family member, the lawyer should refrain from assisting the family member in any legal matters,” he submitted.
“When you are dealing between family members, the consideration is not consideration of the lawyer to clients. When you are dealing with family, what you are looking at is affection, love, concerns that the familial relationship is preserved and progressed,” Mr Tan added, noting that even the court has stated “quite clearly” that such relationships should not be scrutinised under the rules of the court.
Chief Justice Menon, however, rejected Mr Tan’s argument.
“The controversy is your proposition that a solicitor is entitled to act in respect of the will, which confers a benefit on the solicitor’s spouse, and your argument that this does not present a conflict of interest … If the respondent is acting as the solicitor in respect of a will where her husband is one of the beneficiaries, it is a conflict,” said the judge.
Prof Woon argued that even if there was a technical breach of the rules, there should be no sanctions against Mrs Lee, as Mr LKY was a “brilliant lawyer” himself and therefore fully aware of what he wanted and what he was doing, including consenting to Mrs Lee handling his final will.
“A will is not a complex document. He read it, he understood it,” said Prof Woon, adding that Mr LKY had even told his personal assistant to inform Ms Kwa after signing the final will that this was the agreement among his children.
“It’s quite clear MM [Minister Mentor] knew what he was doing. There is no reason for imposition of sanctions of any sort under the Legal Profession Act,” he added.
Justice Woo, however, similarly rejected Prof Woon’s argument that Mr LKY was “content” in accepting that conflict of interest. The judge stressed that the rules of professional conduct of lawyers cannot be waived even in such contexts.
Late Mr LKY not a “doddering old dotard”: Prof Woon
Prof Woon reiterated that the DT’s findings “sought to convey the impression that Mr Lee Kuan Yew was a doddering old dotard being taken advantage of by his son and daughter-in-law”, which neglects “evidence of Bernard Lui and Elizabeth Kong that he was lucid and read the last will before initialling on every page”.
He added that this is a “complete perversion” of the facts and that LKY was actually still “very lucid” and remained a Member of Parliament until his passing in 2015.
Prof Woon argued that DT’s findings essentially painted the late Mr LKY as a frail 90-year old man who did not understand his will.
“It is unacceptable” and “dishonours the memory of Lee Kuan Yew,” he said.
It would have been untenable for Mrs Lee to advise her father-in-law to seek independent legal advice, Prof Woon argued, as doing so “would have implied he did not know what he wanted”.
“He would have exploded … The sound of the explosion would have been heard all the way to the Istana,” he said.
Prof Woon also highlighted that Mr LKY already received independent advice from Ms Kwa before Mrs Lee was involved in the last will in December 2013.
“With respect, Your Honour, if you are talking about taking independent advice, he already had that. He already thought it through, already discussed with his children and (Ms Kwa) drafted that will. What other meaningful advice would have been taken?” He questioned.
DT ignored evidence favourable to Mrs Lee: Prof Woon
Prof Woon also submitted that the DT had “cherry-picked” evidence against Mrs Lee and subsequently made “very serious allegations” against Mrs Lee and Mr LHY when it accused them of “lying, suppressing evidence and deceit”.
He argued that the DT had ignored parts of an email which recorded the late LKY’s wish to address the possible degazetting of his Oxley Road property.
The DT also ignored the fact that it was Mr LKY himself who expedited the signing of his last will, he added.
Prof Woon then asked the court to state that it is “unacceptable” for the DT to cast such serious aspersions without clear evidence, as he pointed that the evidence does not support the DT’s conclusion.
He questioned whether sanctions against Mrs Lee would be justified when in reality the late Mr LKY got what he exactly wanted.
Prof Woon asserted that Ms Kwa could have seen the last will herself and alerted Mr LKY to it, and discussed making a new will if it was what he desired.
“It is improbable to the extreme, that MM was tricked … that he was rushed into signing into something that he doesn’t want”, he argued.
Prof Woon in his closing submissions stressed that the Law Society has not proven beyond reasonable doubt that Mrs Lee was LKY’s lawyer.
Even if he gave instructions to Mrs Lee, it is equally possible that Mrs Lee was just carrying out the role as his son’s wife, who just happened to have a law firm.
Chief Justice Menon, however, stressed in response to Prof Woon’s points on Mr LKY’s possible desired outcomes: “This is precisely why the law imposes the duties it imposes in the context of wills – it’s because the people who are affected are usually not around to stand up and say what mattered or what didn’t matter to them.”
For now, the Court of Three Judges has reserved its judgement. Should Mrs Lee’s appeal fall short, she may face a fine, suspension or disbarment.