A different take on the Disciplinary Tribunal case against daughter-in-law of Lee Kuan Yew

The First Family of Singapore has been embroiled in a feud over the 7th and last Will of Lee Kuan Yew after his death on March 2015. The main dispute is over the fate of his house 38 Oxley Road.  LKYs wish, which he has made known publicly, is for the house to be demonished. Younger son Lee Hsien Yang and daughter Dr Lee Weiling wants to honour their father's last wish. Elder son PM Lee Hsien Loong wants to preserve it as a heritage site.

In all, LKY executed 7 Wills. The first 6 Wills were prepared by his lawyer Kwa Kim Li, a cousin. In Kwa's absence, lawyer Lee Suet Fern, who is the wife of Yang, drafted the last will which LKY signed 17 Dec 2013.. The demolition clause was in the 1st Will and lifted in the 5th and 6th Wills. It was re-inserted in the final Will.

For her role in the final Will, Fern faced the Disciplinary Tribunal for professional misconduct and was found guilty on Feb 2020. Fern has widespread public sympathy. Social media is full of angry arguments that LKY had full mental faculties and knew exactly what he was doing. The public is barking up wrong trees because the validity of the last Will is not challenged. There are questions that need to be asked, but it's not about the mental capacity of LKY.


The complainant :

Any one can bring a complaint of misconduct against a lawyer to the Singapore Law Society. A complaint is normally routed through 3 levels -- Committee of Inquiry, Review Committee, and finally a Disciplinary Tribunal. Each level increasing in severity of penalties.

Legal Professional Act section 85 (3) (b) empowers the Attorney General to refer a complaint of misconduct by a legal practitioner to the Singapore Law Society. The AG may request the complaint to be referred to a Disciplinary Tribunal.

The Deputy AG lodged the complaint on Dec 2018, He went for the jugular, requesting that the complaint be referred to the Disciplinary Tribunal directly. It's an indication the government is going for the heaviest penalty - disbarment,

The complainant is not an aggrieved party of the Will, but the government. This is nothing out of the ordinary as the AG has to act against erring lawyers from time to time. In this instance, it does raise some questions :

• LPA section 83(3)(b) specifically mentions AG, not the Deputy AG nor the AG Chambers. The Deputy AG does not seem to have locus standi,
• The AG Lucien Wong recused himself as he had been personal lawyer of  PM Lee, who is an interested party in the Will. Its hard to convince that the Deputy has no undue infuence from the AG and thus the PM. The recusal is just smokescreen.
• Did complainant rely on any information from lawyer Kwa with possible breach of client  confidentiality?

The Complaints:

The Deputy AG's complaints are possible breaches of duty under the Legal Profession (Professional Conduct) Rules (Revised) 2010, namely :

• Conflict of interest
  Section 25: During the course of a retainer, an advocate and solicitor shall advance the client’s interest unaffected by (a) any interest of the advocate and solicitor; (b) any interest of any other person

• Receipt of Gift  :
  Section 46 :Where a client intends to make a significant gift by will or inter vivos, or in any other manner, to any member of the family of the advocate and solicitor, the advocate and solicitor (1) shall not act for the client and (2)shall advise the client to be independently advised in respect of the gift.

On confict of interests, other jurisdictions such as US, allow lawyers to act for a testator in preparing a Will for which they have beneficiary interests, PROVIDED they are related. The rationale is people tend to go to those they trust for legal matters. If the lawyer is not related, he cannot prepare a will in which he has beneficiary interest. The Singapore approach is not universal practice.

The words "shall" and "shall not" are the most litigated words in legal history. They denote future intention which does not imply absoute obligation. However any attempt to challenge the government to interpretation of this will be banging heads against wall in the context of Singapore.

The Legal Profession (Professional Conduct) Rules (Revised) 2010 has been superseded by Rules 2015. where the words "shall and "shall not"" have been changed to "must" and "must not" which are absolute obligation or mandatory. The complaints are based on Rules 2010 which was current when the offences were committed.


The charges :

The onus for framing the charges falls on the Law Society. They do so mindful that the charges must reflect the gravamen of the complaint, ie as befits the most serious part of the accusation. Basically the charge is :

Respondent has been guilty of fraudulent or grossly improper conduct in the discharge of her professional duty under the Legal Profession Act 2009 Section 83(2)(b)

The Law Society provides the prosecutorial team in the Disciplinary Tribunal hearing. Which means they have internally processed and concuded there is a prima facie case to proceed. Their process remains confidential and so the question of fair and indepedent deliberation remains in the air, fueled by latent thoughts that the Law Society has never been the same post-Francis Seow presidency when it was cowed and subjucated to a "Yes Sir" agency.


What the complaint did and did not claim :

Social media went bombastic over the guilty findings of the Disciplinary Tribunal without understanding, or accepting, what exactly the complaint claim and did not claim.

The complaint claims Fern, as LKYs daughter-in-law, (1) acted as his lawyer in drafting his final will in which her husband is a beneficiary, and (2) did not advise LKY to seek an independent attorney.

Many took issue with the suggestion that LKY, frail and week at 91, was mentally incapable of understanding the will. Social media went berserk to establish that LKY's mental faculties remained unquestionable to his final days - he was taking Chinese lessons, had various activities, wrote an article for a western media, wrote another codicil to the last Will, etc.  Fern herself said LKY was no  "ignorant-minded dotard" who needed the Will explained to him. Witnesses said LKY was lucid, read and signed every page of the Will. All these were excellent defence of an issue that nobody raised.

LKY's mental capacity is not an issue in the complaint. The Deputy AG made no claims that LKY was uduely influenced because of diminished mental faculty.

The complaint also has nothing to do with, nor is it a challenge, against the validity of the will. Probate for the will was given in October 2015 and there has been no challenge by any party. All the arguments, documentation, emails etc pertaining to what was or was not changed in the last Will, who benefitted etc, are irrelevant and serve only to contribute to clouding the public's mind.


So is Fern guilty? :

The Discipinary Tribunal found her guilty. The facts of the case are so plain and obvious. Kwa has been LKY's lawyer for the first 6 Wills. Fern had in the past, contributed her inputs to the earlier Wills, but she has no retainer. Circumstances entrusted her to draft the final Will -  Travel commitment of Kwa, her own and her husband Yang's travel plans, and LKY's wish to have the Will done fast.

Fern was caught by a legality that she cannot deny, much as she wants to. She prepared the final Will and it follows she is the lawyer for LKY in the eyes of the law.  In June 2017, Fern stepped down as managing partner of her own law firm, an obvious acknowledgement of the legal ramifications of her role in the Will.  Her defence that it was an act of a dutiful wife in obliging the husband in a chore asked of by a father, cannot stand. The circumstances of what LKY asked of Yang and why the Will was changed is unclear,  and what has been changed, these are all completey irrelevant to the charge.

One can only wonder how 3 luminuous minds of the Lee family, LKY himself, son Yang and Fern, could have overlooked the illegality of having a testator's daughter-in-law to draft the Will..


What is the purpose of the complaint then :

Cynics wonder if there were no family feud, would anyone have raised any complaint.

Yang had claimed PM Lee lied to LKY that the government was going to gazette the house as a heritage site or that it has already been gazetted. There was undue influence for LKY to lift the demolition clause in the 5th and 6th Will. Yang raised concern that PM Lee abused his power to have it his way regarding the fate of the house. Eyebrows were raised in public, forcing PM Lee to table for discussion in Pariament on 3 Jul 2017 where he will come clean. A PAP-dominated parliament exonerated him of any wrongdoing, a charade where no one doubted what the outcome will be. The feud is politically damaging for the PM who has been tainted with power abuse. A related libel suit by the government against Yang's son for some private Facebook posting, for which he is in self-exile in UK, goes to further reinforce the power abuse image.

"The search for a scapegoat is the easiest of all hunting expeditions" ... Dwight D. Eisenhower

Exposing Fern's breach of the law and carefully crafted language -- '"deceitful", "gross misconduct", "his <Yang's> share increased in the will" (but silent on PM Lee's share increased similary), "deceitful witness, who tailored her evidence to portray herself as an innocent victim who had been maligned", "unsavoury", "rushed through the execution of the last Will" - all emotionally charged for maximum effect for public consumption.

Certainly LKY was in poor health and advanced age. But physical weakness does not mean diminished mental faculty. The complaint and Tribunal's findings consistently mention the frailty and weak disposition of LKY. They have been careful not to suggest LKY was not lucid, but they have been attacked for something they never mentioned. However, the consistent mention of "frailty" serves the purpose of letting the public suggest to themselves that LKY was not lucid. It serves to normalise the idea that LKY was "frail" and thus not lucid, and it was the younger sibings who took advantage and unduely influenced the old man to make those changes in the last Will. This has nothing to do with the complaint and charges, but everything to do with political capital for the PM.

The timing of the hearing with a looming election leaves no doubt the course of action was to water-down the negative publicity of the famiy feud on the Prime Minister who has been seen as abusing his power and lying to his father. This is evidently so as the proceedings treaded carefuy away from the big white elephant in the room.


The elephant in the room :

The crux of the feud is PM Lee does not want the house demolished against the father's wish. Yang claimed PM Lee lied to the father that the house will be, or has been gazetted for preservation which influenced LKY to lift the demolition clause in the 5th Will (4 Oct 2012) and 6th Will (2 Nov 2012).

The Tribunal Committee avoided deliberation on this knowing the damning evidence of 2 emails written by LKY:

• Email dd 3 Oct 2011 to PM Lee's wife Ho Ching and copied to al 3 children, in which LKY wrote " Loong as PM has indicated that he will declare it a heritage site."\
• Email dd 6 Sep 2012 to his lawyer Kwa Kim Li, LKY wrote "Although it has been gazetted a heritage house, it is still mine as owner... Cabinet has opposed tearing it down and rebuilding, because 2 PMs have lived in the house, me and Loong."

A Ministerial Committee to look into the matter of the house was formed only on 1 Jun 2016. It is clear someone lied. It also suggests lawyer Kwa was remiss in her duty to advise LKY the fact that no gazatte has been passed, tantamount to negligence under the same code of conduct that Fern has been charged with.


Conclusion :

LKY had left a codicil for Will #6 with lawyer Kwa who left it unattended due to travels. Everyone knows the way LKY works. It's chop chop double quick time. He was anxious and it is probable in the 4 days of Kwa's absence, LKY spoke to son Yang who thought his wife Fern could facilitate the matter of the will. At this juncture, it is possible that LKY became aware the house has not been gazetted and thus re-inserted the demolition clause, as has been his wish all along. Thus Fern took it as a chore and drafted the 7th and last will which LKY signed on 17 Dec 2013. LKY died on 23 Mar 2015 and unfortunately, dead man tell no tales, so the Truth will never be out. All we are left with are just opinions, and the one that counts belongs to the Disciplinary Tribunal. The case goes to a special Court of Three Judges for finality and sentencing. In the court of public opinion, the severest penalty of disbarment proves the vindictiveness of the political elite, the lowest penalty of a fine or short suspension shows the whole process is just a political exercise. Which will it be?