Background
The appellant (A) and respondent (R) are brothers whose father (P) executed a Lasting Power of Attorney on 19 January 2016 appointing both as co-donees. In November 2023, R commenced proceedings in the Family Court (FC/OSM 389/2023) initially seeking to revoke A’s appointment as donee on the basis that A had misused and misappropriated P’s monies — conduct alleged to have occurred both before and after the LPA’s execution. R later obtained leave to amend, adding a fresh ground: that the LPA itself should be revoked because P lacked mental capacity at the time of its execution. On the amended case, R alleged that pre-LPA transfers of approximately S$2.24 million from P’s accounts to A, or to joint accounts in A’s control, were suspicious and out of character for P, who had historically kept meticulous written records of even modest transfers to family members.
A applied under r 647 of the Family Justice Rules 2014 to expunge the portions of R’s affidavits dealing with those pre-LPA transactions (the “Misuse Allegations”), arguing they were irrelevant, scandalous, or oppressive. The core procedural difficulty was undisputed: the Family Court has no civil jurisdiction to determine whether the transfers were valid gifts or misappropriations — any such claim must be pursued in the High Court by way of ordinary civil action. The District Judge declined to strike out the material, finding it potentially relevant to A’s conflict of interest as donee. A appealed to the High Court (Family Division).
The certifying doctor, Dr Ong Seh Hong, had assessed P’s mental capacity on 19 January 2016 — the very day the LPA was executed. R pointed out that, one day before that assessment, S$510,721.09 had been transferred from a joint P-and-A account to A’s personal account, a fact Dr Ong was never told. R sought to cross-examine Dr Ong on whether, had she known of these transactions, her assessment of P’s capacity might have differed.
The Court’s Holding
Kwek Mean Luck J dismissed the appeal, holding that the Misuse Allegations should not be expunged because they are relevant to whether P had mental capacity when executing the LPA. Applying the principle from XKG v XKF [2025] SGHCF 66 that a donor’s awareness of his financial circumstances lies on a spectrum and is a proper factor in capacity assessment, the court held that the pre-LPA transactions were legitimately relevant to examining Dr Ong: the Family Court need not determine whether the transfers were gifts or misappropriations in order to explore whether P knew what was happening to his assets and whether Dr Ong’s assessment would have changed had she been aware of them. That purpose does not require the court to resolve the jurisdictional question of title.
On the second ground — whether A engaged in “conduct that is not in P’s best interests” under s 17(3)(b)(ii) of the Mental Capacity Act 2008 — the court held that pre-appointment conduct is excluded from that provision. Applying the three-step purposive approach in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850, the court reasoned that respecting the donor’s autonomous choice of donee, and recognising family as the primary line of support, would be undermined if conduct predating the LPA’s execution could ground revocation. The court also noted that s 17(3)(b)(i), added to the MCA in 2016, contains an explicit temporal limitation, suggesting Parliament knows how to impose such limits and deliberately did not include equivalent language in s 17(3)(b)(ii) only to emphasise coverage of conduct outside the formal exercise of LPA powers — not to reach back before appointment.
Even on the alternative assumption that prior conduct could in principle be relevant under s 17(3)(b)(ii), the court found the Misuse Allegations irrelevant on the facts: the Family Court had no jurisdiction to resolve whether the transfers were improper, R had successfully resisted expansion of cross-examination to witnesses who could speak to P’s intent, and no inference of conflict of interest could fairly be drawn without the full evidential picture. The appeal was accordingly dismissed, with the Misuse Allegations preserved in the affidavits for use in examining Dr Ong on the mental capacity question.
Key Takeaways
- Pre-LPA financial transfers may be admissible and relevant to challenging the certifying doctor’s assessment of a donor’s mental capacity, even where the Family Court lacks jurisdiction to adjudicate the validity of those transfers — the two questions are legally distinct.
- Under s 17(3)(b)(ii) of the Mental Capacity Act 2008, “conduct that is not in P’s best interests” encompasses only post-appointment conduct; pre-appointment conduct cannot ground revocation of a donee’s appointment under this limb, as a matter of purposive statutory interpretation.
- A court will only expunge affidavit material under r 647 of the Family Justice Rules 2014 if the material is clearly irrelevant or relates to unsustainable allegations; disputed evidence touching on live issues at trial will ordinarily be preserved.
- A party cannot rely on its own earlier successful resistance to expanding the scope of evidence as a later basis for drawing favourable inferences from that same restricted evidential pool.
Why It Matters
This decision addresses a gap in Singapore’s mental capacity jurisprudence by clarifying how courts should treat evidence of pre-LPA financial conduct when the Family Court has no jurisdiction over the underlying proprietary dispute. The ruling confirms that such evidence can serve a proper evidentiary function — testing the adequacy of the medical capacity assessment — without the court straying into forbidden civil territory. Practitioners advising on LPA disputes, particularly where a certifying doctor’s examination may have been incomplete, now have clearer guidance on preserving such evidence in affidavits.
The court’s authoritative interpretation of s 17(3)(b)(ii) of the Mental Capacity Act also has broad practical significance. By holding that only post-appointment conduct is relevant to a “not in P’s best interests” revocation application, the decision protects the freedom of mentally capable donors to make their own choices — even choices others regard as unwise — and limits the ability of family members to weaponise historical grievances in LPA revocation proceedings. The prodigal-son analogy offered by the court illustrates the principle vividly: a donor’s forgiveness of past misconduct, expressed through the deliberate choice of donee, should not be readily overridden by litigation.