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Q I AM a Singaporean married to a Malaysian who lives in Malaysia. We occasionally meet during the weekend.

I have two sons aged 23 and 19 born in Singapore.

I have a five-room HDB flat which I bought with my CPF savings and have completed payment for it.

My husband did not make any contribution towards the purchase of the house as he has no steady income.

He gave me some money every month to maintain the children when they were young but has since stopped doing so.

The flat is under my name only as my husband, being a Malaysian, cannot be a co-owner.

When I die, will my husband get a share of the house or will only my sons get it?

I am thinking of making a will to ensure that the house is divided equally between my two sons, leaving nothing to my husband. Is this legal and can my husband contest it?

I do not wish for my husband to have any claim on this house and my other properties.

A Assuming that you are domiciled in Singapore and you do not make a will, upon your death, your husband will be entitled to half of all your assets.

The remaining half share will be divided equally between your sons.

As your husband may not be able to put the half share of the flat into his name, HDB will give the owners a reasonable time to sell the property.

To avoid your husband obtaining a share in the flat and to any of your assets, you should make a will.

In it, you can give your flat and other assets to your sons or whoever you may choose.

Whether your husband will be able to contest your will depends on facts personal to the parties, and you should consult a lawyer on this.

Chew Mei Choo Partner Shook Lin & Bok

Source : Sunday Times - 15 Oct 2006

Q I MARRIED in 2003 when I was 57. My husband’s first wife died in 1997, leaving three adult children.

I became a bankrupt early last year. Besides $80,000 in my Central Provident Fund (CPF) account, I have some cash in a POSB account under my husband’s name.

Can I make a will? But doesn’t the bankruptcy law mean I am not allowed to own any assets?

Whether I’m bankrupt or not, do my husband’s three children have any legal right to my estate?

Being a bankrupt, will I still benefit from my husband’s estate if he dies before me? Or will the money go to the Official Assignee (OA)?

Even if my husband writes a will leaving money to me, will I get anything, given the big debts owed by my eldest brother’s business?

My husband refuses to go to a lawyer to prepare his will. Instead, he wrote it himself and sealed it in a envelope.

I can’t help feeling very insecure.

Should I prepare a legal letter signed by my husband to confirm the money deposited in the POSB account is actually my personal asset?

A Upon bankruptcy, the OA of the Insolvency and Public Trustee’s Office becomes the owner of your properties.

The only asset which you will continue to own is the money in your CPF account.

You have a duty to fully disclose your money in your husband’s POSB account to the OA.

As you are a bankrupt, you do not have the power to leave your other assets to beneficiaries under your will.

However, after the bankruptcy order ends, you become the owner of your assets, which you can then assign in a will.

Your three step-children may have a right to your estate if you had adopted them by way of a court order. If not, they have no rights to your estate.

If your husband dies leaving a will, you can still receive any benefits under it but would have to declare this gift to the OA as well.

The gift would form part of your assets, which will be owned by the OA during the term of your bankruptcy.

I do not think that there is any relationship between your husband leaving you a gift in his will and your eldest brother’s business debts.

A will is a personal document which requires the maker to execute it voluntarily. At best, you can encourage him to go to a lawyer to make a proper will, but he has the right to refuse.

I agree that it would be wise for your husband to execute a document to state the amount of your money in his POSB account.

Alternatively, you can suggest that he convert his personal POSB account into a joint account; then you would have a half-share of the money in the account.

Your money in the joint account would form part of your assets which you would also have to declare to the OA.

The best safeguard would be for your husband to transfer your money to your personal bank account.

Rajan Chettiar Lawyer Rajan Chettiar & Co

Advice provided in this column is not meant as a substitute for comprehensive professional advice.

Source : Sunday Times - 15 Oct 2006

Registered land title made virtually indefeasible

LAWYERS say a recent Court of Appeal decision upholding the indefeasibility of a registered land title will improve certainty and security in property transactions.

The court overturned the decision of late trial judge Lai Kew Chai, ruling that only in very limited circumstances will it let a title registered under the Land Titles Act (LTA) be defeated by another claim.

The case involved UOB and the occupant of the house on which a $1 million loan was obtained, and which UOB attempted to seize when the occupant’s daughter defaulted on payment.

Before 2000, the occupant’s daughter took the original title deed to the house but the occupant discovered its absence and obtained a replacement deed in July 2000.

However, the occupant’s daughter still managed to use the cancelled original deed to get a $1 million mortgage from UOB, defaulting on payments and absconding.

The occupant affixed her thumbprint to the mortgage, but the court found that she was of an unsound mind when she executed the mortgage.

Justice Lai found that her condition did not affect the validity of the mortgage. However, he set the mortgage aside, and did not allow UOB to seize the house, saying that there was ‘wilful blindness akin to fraud’ on the part of UOB’s solicitors because their conveyancing clerk registered the mortgage using a cancelled certificate of title.

However, the Court of Appeal disagreed as there was no evidence that the conveyancing clerk knew of the cancellation.

The court also said that the LTA, in introducing the Torrens system, a system of land title where a register of land holdings maintained by the state guarantees indefeasible title to those in the register, was designed to simplify land dealings and give finality to the title of the registered proprietor.

It did not think that a ’strict approach’ to the acceptance of personal equities under the LTA will be inequitable to people with unregistered interests in land. This is because the LTA provides a framework to enable such owners to protect their interests by lodging caveats against the registered title.

‘If they fail to do so as a result of which their interests are overriden by that of the registered proprietor, they have only themselves to blame,’ the court said.

UOB was represented by Wong Partnership while the occupant was represented by Pereira & Tan.

Lawyers say that the case is significant. It states clearly that personal equities will not be allowed to defeat registered land titles.

‘This decision will definitely help commercial certainty because once your interest is registered on the title, you won’t have to worry about the equities or interests of other people which do not appear on the register,’ said Sim Bock Eng, a partner at Wong Partnership.

‘It is not just a major consolation to banks, but anyone dealing with land such as developers and the man on the street.’

Lawyer David De Souza added: ‘This decision is very significant in that it reinforces that once an interest is registered under the LTA, it is indefeasible except in very limited circumstances.’

Source : Business Times - 10 Oct 2006

MADAM Hajjah Aisah Haji, 70, will have to leave her home of 38 years after all.

In July last year, she and her 89-year-old mother, Bebe Mohammad, were saved from eviction when the High Court threw out a lawsuit filed by United Overseas Bank (UOB).

But the Court of Appeal yesterday ruled that UOB could seize the bungalow, off Upper Thomson Road.

Madam Hajjah’s mother died in August, and th e retired marketing manager is now living in the bungalow by herself.

UOB wants to seize the house because it was used to get a $1 million loan - but not by Madam Hajjah.

The saga began when her adopted sister, then-34-year-old Suzanah Hassan, took the title deed to the house some time before 2000 from their foster mother, who was suffering from senile dementia.

In July 2000, after finding the original document missing, Madam Hajjah obtained a replacement title deed on behalf of her mother, rendering the earlier deed void.

However, Madam Suzanah and her husband, Junaidi Johari, 46, managed to use the original deed to get a $1 million mortgage from UOB in October 2000.

Soon after, the bank obtained a judgment ordering Madam Suzanah and her husband to repay the sum - but it has not received a cent, as the duo cannot be found.

It tried to seize the house, but lost in court last year.

Justice Lai Kew Chai then said that there had been ‘wilful blindness akin to fraud’ on the part of UOB’s solicitors because their conveyancing clerk had registered the mortgage using the original certificate of title, which had been cancelled.

Delivering the Court of Appeal’s decision yesterday, Chief Justice Chan Sek Keong said that the trial judge had erred when he ordered the mortgage to be set aside.

The Court of Appeal, also comprising Justice Andrew Phang Boon Leong and Justice Woo Bih Li, said that, at worst, it was a case of negligence as neither the bank nor its solicitors had been a party to the fraud.

The property had been wrongly registered because of a mistake by the registry staff.

CJ Chan said that Madam Hajjah could still lodge a claim under the Land Titles Act for loss arising from the mistake of the registry staff.

Clearly disappointed with yesterday’s decision, Madam Hajjah said she would be discussing the matter with her lawyers today.

She said: ‘I also want to know when I have to move out. I hope they will allow me to stay until the fasting month is over.

‘I don’t know where to go as the news came out of the blue.’

Source : Straits Times - 26 Sep 2006

Q MY BROTHER bought a condominium unit in 2002. He included my sister-in-law’s name as his joint tenant.

She became bankrupt last year because her business failed. She was a partner in the business.

How long will it take for her to be discharged from bankruptcy?

How will the condominium unit that my brother purchased be affected?

Can the Official Assignee (OA) take possession of it? Is it possible to remove her name from the property now to avoid complications?

A A discharge from bankruptcy may be done either by an application to the court or by a certificate issued by the OA.

The court may grant either an absolute discharge or a conditional discharge.

In the former case, the bankrupt is free from any further obligations, whereas in the latter, the court may attach conditions such as requiring him to pay dividends of at least 25 per cent as well as make contributions from his post-discharge income.

The court takes into account such factors as the age of the bankrupt, the cause of the bankruptcy and his blameworthiness in incurring the debts, the number of creditors and the value of the bankrupt’s assets against his liabilities.

The court may refuse to allow the discharge, as happened in past cases where the debt ran into millions and the bankrupt went into hiding.

For a discharge by certificate of the OA, the OA generally reviews all cases where there is a bankruptcy of at least three years and the debts are less than $500,000.

The OA also takes into account the same factors that the court considers, and also looks at the bankrupt’s conduct and level of cooperation.

In both situations, the creditors have to be notified and they are entitled to object.

If the OA rejects the objections, the creditors can go to court for an order prohibiting the OA from granting the certificate.

As both situations involve the exercise of discretion, the interests of the bankrupt are balanced against those of the creditors, the public and commercial morality or common honesty.

As a bankrupt, all of your sister-in-law’s property vests automatically in the OA without the need for any further conveyance, assignment or transfer.

In short, she no longer owns anything in the condominium and any attempt by her to dispose of her property is void because she has no title to pass or give.

Even if this jointly-owned property is a matrimonial home, your sister-in-law’s interest will still form part of her estate available for distribution to creditors.

An HDB flat is exempted and in that sense is safe from the consequences of bankruptcy provided both the owners are Singapore citizens.

If the HDB flat is wholly or jointly owned by a permanent resident, then the bankrupt’s interest will vest in the OA as well.

The OA has a duty to call in the bankrupt’s estate and hence would write to the bank, although the bank would have found out about your sister-in-law’s bankruptcy by now.

There may be a forced sale of the condominium as the bank, as a secured creditor, is entitled to recover its loan.

Rather than a forced sale, your sister may persuade the OA to allow her to sell the condominium privately if that will fetch a better price.

Amolat SinghLawyerAmolat & Partners

Source : Sunday Times - 17 Sep 2006