The High Court on Wednesday (21 Apr) overturned the Law Society’s decision to dismiss parts of a complaint made by the executors of the late Lee Kuan Yew’s estate against his lawyer Kwa Kim Li.
Ms Kwa was tasked with preparing six out of the eight wills executed by Mr LKY before his death in Mar 2015.
Mr LKY’s first will in Dec 1995 was not prepared by Ms Kwa. She also denied being involved in the drafting of the final will that was executed in Nov 2012.
In their letter of complaint to the Law Society on 5 Sep 2019, Dr Lee Wei Ling and Mr Lee Hsien Yang — Mr LKY’s children and Prime Minister Lee Hsien Loong’s siblings — detailed four heads of complaints:
- Firstly, on how Ms Kwa had failed to carry out Mr LKY’s instructions to destroy his superseded wills;
- Secondly, on how Ms Kwa had breached attorney-client privilege and her duty to preserve the confidentiality of correspondences with Mr LKY. This is illustrated by her move to send PM Lee emails containing records of such communications when he was not an executor of the estate;
- Thirdly, on how Ms Kwa did not keep “proper contemporaneous notes and records” of all of Mr LKY’s advice and instructions to her; and
- Fourthly, on how Ms Kwa had supplied “false and misleading information” to the executors in her emails dated 4 Jun 2015 and 22 Jun 2015.
The Law Society had rejected a formal investigation by a Disciplinary Tribunal (DT) with respect to the first, third and fourth heads of complaint following recommendations by an Inquiry Committee (IC).
Initially, the IC’s first report found a prima facie case regarding the first complaint. It recommended that the first and second complaint ought to be referred to a DT while the other two heads should be dismissed.
However, after the Law Society Council posed queries on the first and second heads of complaint, the IC in a second report on 3 Aug last year held the view that the first should be dismissed.
This finding was made on the basis that the available documentary evidence did not successfully demonstrate that Mr Lee “had expressly intended for all of his prior Wills to be physically destroyed or torn up by [Ms Kwa]”.
Subsequently, Dr LWL and Mr LHY applied on 21 Sep last year to the High Court to seek an order compelling the Law Society to apply to the Chief Justice to convene a DT for the purpose of formally investigating the first, third and fourth heads of their complaint.
With this High Court judgement, the Law Society of Singapore is now required to refer complaints (1), (2) and (4) to the DT for a formal investigation.
Executors welcome court’s decision
A statement from LKY’s executors, in response to queries on the court’s judgement, “The courts have now over-ruled the Law Society and ordered it to convene a Disciplinary Tribunal on the complaints that KKL had lied to the Estate of LKY on her involvement in LKY’s last will. It has also overruled and ordered the Law Society to take to a Disciplinary Tribunal KKL’s failure to follow LKY’s explicit instructions to destroy his prior will each time he executed a new will. This is in addition to her breach of her overarching duties of confidentiality to her client LKY.”
The executors, Dr LWL and Mr LHY said that they welcome the court decision and hope the Law Society will act on the court order.
On the first head of the executors’ complaint
Dr LWL and Mr LHY argued that it was procedurally incorrect for the Council to make further queries after the IC had found a prima facie case of sufficient gravity in the first head of their complaint.
They also challenged the Council’s reasoning behind concurring with the IC’s second report that there was no such prima facie case of sufficient gravity.
The Council, however, argued that its duty to accept the IC’s recommendation for a formal investigation would only arise if the IC also recommended such an investigation in its subsequent report.
Justice Valerie Thean, in a written judgement today, ruled that the Council was obligated to accept the IC’s recommendation in the first report on referring the first head of the complaint to be formally investigated by a DT.
The Council’s action to refer back the matter to the IC, said the judge, is “procedurally defective” and that the charge touched upon by the IC in its first report should be addressed in a formal investigation by a DT, as per the Legal Profession Act.
Even if the Council had the power to pose queries and seek a further report from the IC, Justice Thean said that she is of the position that the Council “ought not to have accepted the findings of the IC” in the second report.
The judge highlighted that according to the IC’s observations, Ms Kwa was unable to respond in a direct manner on whether Mr LKY had instructed her to destroy any of his first to sixth wills.
She was also unable to precisely recall what Mr LKY had said to her, the IC noted.
However, Ms Kwa was apparently confident that Mr LKY wanted to ensure that the wills were invalidated to avoid any confusion over which document was his last and final will.
The prima facie case for a possible ethical breach on Ms Kwa’s part then was pinpointed by the IC in its first report on the basis that Ms Kwa’s handwritten file note dated 21 Dec 2011 had been torn up.
The IC commented that even if Mr LKY had instructed Ms Kwa to do so for the first will, it did not necessarily mean that she was instructed to do the same for the second to sixth wills.
The IC also took into account the multiple occasions in which Ms Kwa had used the words “destroy” or “tore up” in referencing the wills.
However, in its second report after the Council’s queries, the IC — in re-evaluating the stance it made in its first report — did not answer the Council’s queries, Justice Thean observed.
The Council had asked about whether there was any difference between physical destruction and the invalidation of a will.
It also queried whether a solicitor who acted in line with the intention to revoke the will but did not destroy it — out of the desire to keep a file copy — would be considered to have committed a wrongdoing.
“Instead, the IC interviewed Ms Kwa and came to a factual conclusion that there was insufficient evidence that Mr Lee had issued an instruction to physically destroy his former wills,” said Justice Thean.
This is particularly striking given that the IC had already concluded in its first report “on the basis of contemporaneous records” that there was a prima facie question on whether Mr LKY had instructed Ms Kwa to destroy any of the first six wills, she added.
The IC, Justice Thean noted, had relied on various “key assertions” by Ms Kwa that were not present in her earlier written explanations.
“Whether Mr Lee had given such an instruction and whether this remained his instruction throughout the preparation of the six wills were factual issues.
“As the IC had initially concluded that there was a prima facie case on these issues, their statutory role was not to make a finding on this factual issue, but merely to channel it to the proper fact-finding body: the DT,” said the judge.
Not only was the Council faced with “a lack of an answer to the professional practice queries posed” to the IC — it also had to grapple with “two conflicting views” on whether a prima facie case was made out on a factual issue, Justice Thean said.
“In such a case, the Council ought to have, even if it were empowered to read the First IC Report together with the Second IC Report, concluded that a formal investigation by a DT would be necessary,” she reasoned.
On the fourth head of the executors’ complaint
Dr LWL and Mr LHY also contended that Ms Kwa had given them false and misleading information in the two Jun 2015 emails by omitting significant references to discussions and the emails she exchanged with Mr LKY in Nov and Dec 2013 on his final will and the Oxley Road home.
The IC, in recommending that this fourth complaint be dismissed, was of the opinion that Ms Kwa’s omission of the contents of her 30 Nov 2013 email to Mr LKY was not relevant.
This is because there was no dispute on the veracity and/or completeness of the sixth will, it found.
Dr LWL and Mr LHY argued that the IC had given too much credence to Ms Kwa’s explanation on how she would “summarise” Mr Lee’s wills based on her file records, adding that the entirety of the 4 Jun 2015 email should have been examined instead of a single line.
In finding that there was a prima facie case of sufficient gravity for a formal investigation in the fourth head, Justice Thean said that the “frame and opening” of Ms Kwa’s 4 Jun 2015 email gave the impression that it was to be “a comprehensive summary of the work” she had done on the first six wills and the Oxley Road house.
Ms Kwa had framed the request for information made by PM Lee and Dr LWL as one for “file records” of Mr LKY’s previous wills and “for notes/emails/information on his instructions to [Ms Kwa] regarding Oxley”.
Ms Kwa had “seemingly limited” the scope of this request to information regarding the first six wills, with a focus on the Oxley Road property, said Justice Thean.
However, Ms Kwa had neglected to insert information on Mr LKY’s instructions regarding changes to the sixth will and his discussions with her regarding the Oxley Road property in 2013, the judge noted.
“This could have misled the executors into thinking that the 4 June 2015 Email contained everything regarding the first six wills and the Oxley property,” said Justice Thean.
Ms Kwa’s 22 Jun 2015 email also “made a representation that was not true, and omitted to answer fully the specific question that was repeated”, she added.
On factual grounds, Justice Thean concurred that Ms Kwa’s statements in both of the Jun 2015 emails could be said to be prima facie false and misleading.
This is because the emails of 30 Nov 2013 and 12 Dec 2013 had shown Mr LKY instructing Ms Kwa regarding changes to his sixth will, with the latter referencing adding a codicil to change the shares given to each of his children — the beneficiaries of his will.
The above emails, Justice Thean added, also reflected Mr LKY’s concerns about the demolition of the Oxley Road property.
The 13 Dec email referenced another codicil regarding carpets in the Oxley Road property, the judge added.
“In fact, the IC had stated as much, noting that the 12 and 13 December 2013 emails suggested that Mr Lee [Kuan Yew] had instructed Ms Kwa to prepare a codicil to the Sixth Will,” said Justice Thean.
This is contrary to Ms Kwa’s claim that Mr LKY did not issue any instructions to change his will after he had signed his sixth one.
Ms Kwa also did not describe or attach the 30 Nov 2013 and 12 Dec 2013 emails in her response to PM Lee’s and Dr LWL’s requests for the background leading up to the signing of Mr LKY’s last will dated 17 Dec 2013.
On ethical grounds, however, Justice Thean ruled that two important issues warrant an examination by a DT: The first is the ethical duty owed by Ms Kwa in the present case; the second being her mental state relevant to that duty.
Both issues were not sufficiently considered by the IC, she said.
“In my view, an examination of the potential ethical breach and mental state appurtenant to such breach would be necessary to conclude whether, as an ethical matter, Ms Kwa’s statements were prima facie false and misleading,” she said.
The charge regarding the fourth complaint should rest on Section 83(2)(h) of the LPA, said Justice Thean.