Sha 2720 - Requirements Of A Valid Wills.docx

Requirements of a valid Wills  A valid will must satisfy three requirements: i. Age ii. Testamentary capacity iii. Formalities i. Age  S.4 Wills Act 1959 - No will made by any person under the age of majority shall be valid.  Age of majority – s.2 of the Age of Majority Act 1971 provides that all males and females within Malaysia shall, on attaining eighteen years of age.  Therefore, a will made by a person under the age of 18 shall not be valid. Exception: S.26 (4) WA – the requirement as to age shall not apply to privileged wills made by soldiers, airmen and sailors. ii. Testamentary capacity  A testator must have testamentary capacity which means in effect that the testator has the mental capacity, has the intention, and exercises genuine free choice in the making of the will. “animus testandi” – mentally capable  S.3 WA – Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will.  However, there is no definition provided in the Act to meant by “of sound mind” in the making will. Marquis of Winchester (1598) 6 Rep 23 - “By the law, it is not sufficient that the testator be of memory when he makes the will, to answer the familiar and usual question, but ought to have a “disposing memory”, so as to able to make a disposition of his estate with “understanding and reason”

SHA 2720 Law of Succession  Cockburn CJ in Bank & Goodfellow (1870) LR 5 QB 549 at 567: “As to testator’s capacity, he must, in the language of law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of property he means to dispose of, of the persons who are the objects of his bounty, and manner in which it is distributed between them.  It can be inferred that in order to have testamentary capacity, i. Firstly, the testator must be capable of understanding the nature of the will and its effects in such way that the will shall only take effect on his death and that it is always recoverable before his death. ii. Secondly, the testator must have the capacity to understand the extent of the property of which he/she is disposing iii. Lastly, the testator must be able to comprehend and appreciate the claims to which he/she ought to give effect. In other words, the testator must have memory to recall the persons who may be fitting beneficiaries and an understanding to comprehend their relationship to him and their claims upon him so that he can decide whether or not to give each of them any part of his property by his will. Following the last of these no insane delusion must influence his/her volition in bringing about a disposal of property which, if the mind had been sound, would not have been made.  It is a cognitive test, based on things pertaining to understanding or knowledge.  It does not take into account other human faculties such as sensing, affections, feelings and so on.

 It is sufficient if he has such mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. (Bank & Goodfellow) Re Ng Toh Piew, Deceased; Tan Geok Eng (f) v Lok Ah Ng [1950] MLJ 273  9th March 1950, probate of a will was granted to the defendant.  The will was dated 19th Jan 1949 and the deceased died on 29th Jan 1949.  The plaintiff applied to the court to revoke the grant and pronounce in favour of an earlier will made by the testator dated 31st Oct 1947.  The will dated 31st Oct 1947 was made after the testator had been examined by doctor and it was clear that he was then in fit state of mind and memory to dispose of his property.  Held: The testator was oblivious to his son’s claims owing to his deficient memory caused by illness and it was his deficiency in memory that caused him to omit his son from his will and to say to one of the witnesses that he had no child. The court therefore pronounced the will dated 19th Jan 1949 to be invalid and revoked the grant of probate. Battan Singh v Amirchand [1948] 1 All ER 152  The instructions had been sent through an intermediary.  PC Held: The testator, who is proved to have been in the last stages of consumption and to have been reduced by disease to extreme weakness, has declared in his will that he had no relations anywhere, though if he had been of sound mind in the sense of the cases cited he must have known that the statement was untrue.  Is that the will is the product of a man so enfeebled by disease as to be without sound mind or memory at the time of execution and that the disposition of his property under it was the outcome of the delusion touching his nephews' existence. The will is, therefore, invalid.

1

Requirements of a valid Wills  However, Tho Yow Pew v Chua Kooi Hean [2002] 4 CLJ 90.  It was held the mere fact that the testator was unwell at the time of the execution of the will is a long way from saying that he had no testamentary capacity. Sethambal Doraiappah v Krishnavani Muniandy [2004] 1 CLJ 869  It was held that very slight testamentary capacity was required for the making the will. It needs not be proved that a testator must be in a perfect state of health or that his mind is so clear as to enable him to give complicated instructions.  In other words, mere bodily ill-health or imperfect memory may not necessarily vitiate testamentary capacity. Ing Chin v Gan Yook Chin [2003] 2 CLJ 19 CA  Held: The mere fact that the testator was seriously ill with cancer did not throw any doubt on the validity of the will as there was ample evidence that supported the testator’s testamentary capacity. Once the testator understood the dispositions of his will and it was executed by him as his will, there was an end to any suspicious circumstances and other collateral issues raised against the validity of the will.  Thus, it may be seen that testamentary capacity is not to be equated with contractual capacity.  A person may lack the mental capacity to enter into a contract and yet may have sufficient testamentary capacity.

SHA 2720 Law of Succession Vitiating Mental Capacity  What the law primarily looks for as vitiating mental capacity is mental disorder such as insanity or delusion.  Delusion is a belief in the existence of something, which no rational person could believe and which could not be eradicated from the testator’s mind by reasoned argument.  If the testator is eccentric or subject to one or more delusion, such as a fact is not itself sufficient to invalidate the will.  It must be shown that the delusion or insanity has an influence on the testamentary dispositions. Bank & Goodfellow (1870) LR 5 QB 549 - The testator suffered from delusions that he was personally molested by a man who had long been dead, and that he was pursued by evil spirits whom he believed to be visibly present. - The testator however, though generally of weak intellect, was able to manage his own affairs. - Issue: whether the testator had lacked testamentary capacity at the time of making the will. - Held: the delusions had not, nor were calculated to have any influence on the testator in the disposal of his property and that, irrespective of these delusions, the state of mental faculties was such render him capable of making a will. Delusion  However, if the delusion overrides the judgment and rationality of the testator it will render the will invalid. Dew v Clark [1926] 3 Add 79 - The testator had made a will leaving all his property to his two nephews but left nothing to his daughter who in his opinion was “a fiend, monster and Satan’s special property”. - The court found that the girl was indeed a very nice little girl and there no reason that she could not inherit her father’s property. - Held: The will was invalid because the father was affected by the delusion and appeared to affect the will.

Time for Specifying Mental Capacity  The relevant and material point of the time at which the mental capacity of the testator needs to be determined is the time at which the will is made and not at some other earlier or later point of time.  In cases where the testator lacks mental capacity after the execution, or becomes of unsound mind, the unsoundness will not affect the validity of the will.  If a will is impeached on the ground of unsoundness of mind, the court must be satisfied on a review of the whole evidence that the testator was of sound mind, memory and understanding at the time of its execution or that the will was made during lucid interval. Lucid Interval Chamber and Yatman v Qeen’s Proctor [1849] 2 Curt 415 The court admitted an application for probate to a will made during lucid interval even though insanity had returned the next day to the extent that the deceased killed himself. Estate of Eusoff Mohamed Salleh Angullia deceased [1939] MLJ 100 - The testator had suffered from attacks of insanity in the past and had 4 occasions been certified as insane and detained in a mental hospital for short period. - He had long lucid intervals between the attacks and in 1938 he executed a will and codicil giving most his estate to charity. - The will was attested by the testator’s solicitor and his doctor, both of whom agreed to the fact that the testator, although physically weak and mentally dull at the time, appeared to be of sound mind, memory and understanding. - The testator died three days later from complication of diabetes. - Held: As the testator appeared to have numerous lucid intervals in past years, and as the will, it’s seemed rational, these were considered as proof of the testator clearly understood the extent of his property and the nature of the claims of others whom, to some 2

Requirements of a valid Wills - extent, he was excluding from participation, and that the will was made during a lucid interval. - The court pronounced for the validity of the will.  Exception to the general principle that the testator must be mentally capable at the time the will is made.  Even though the testator is not mentally capable at the time he executed his will, the will still valid if he is mentally capable, at that particular time, of giving instructions to his solicitor to make the will. Parker v Felgate [1883] 8 P.D.171 - A testatrix, being ill, gave her solicitor instructions to prepare a will. - Later, she went into coma, but was out of it, when the will was ready. - Someone signed the will on her behalf. - At the time the will was signed, the testatrix did not remember the instructions that she gave to the solicitor. - However, she did know that some time previously she had given instructions to her solicitor, and that she believed she was executing a will made in accordance with those instructions. - Held: The will is valid.

SHA 2720 Law of Succession Burden of proof  The state of mind of a testator, whether is sound mind or lack of it, is always a question of fact to be decided by the court.  The burden of proof of testamentary capacitylies on the person propounding the will.  He or she is to satisfy the court that it is the last will of free and capable testator. ***Barry v Butlin (1838) Moo PC 480 - An elderly man executed a will at the house of his attorney. - The attorney who had prepared the will took one quarter of the estate. - The will excluded the son and other family members. - There was much to excite the suspicion of the court. However, after having heard evidence from the witnesses the court found that there were no suspicious circumstances. - Held: The will was valid. - Parke B said: “The onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.”

 Two conditions must be satisfied before the rule can be applied: i. The will was prepared in accordance with the testator’s instructions. ii. At the time of execution he is capable of understanding and does understand that he is executing a will.

 The propounder must satisfy the court:  Firstly, the will complies with the requirements of a valid will and this must be done in the very first instance when the will is propounded to the court.

 In Parker’s case, this doctrine saves wills in bona fide circumstances.  The court will only apply the rule where there is no ground for suspicion. Battan Singh v Amirchand [1948] 1 All ER 152 - The instructions had been sent through an intermediary - PC refused to uphold the will on the grounds of the attendant suspicion and suspicion that the testator did not understand what he was doing.

Eu Boon Yeap v Ewe Kean Hoe [2008] 2 MLJ 868.

Dr. Shanmuganathan v Periasamy Sithambaran [1997] 3 MLJ 61;

s/o

Udham Singh v Indar Kaur [1971] 2 MLJ 263  The plaintiff / appellant had applied for revocation of the grant of probate and there had been an order directing a trial to determine the validity of the will.  The plaintiff / appellant alleged that the testator had no testamentary capacity and that he did not have the requisite knowledge and approval of the said will.  At the time of making the will the testator was a patient in hospital and had suffered from strokes.  The learned trial judge pronounced in favour of the will as he decided that the plaintiff / appellant had failed to discharge the onus of establishing testamentary incapacity on the part of the testator.  On appeal, it was held that the learned trial judge was wrong in putting the burden of proving testamentary incapacity on the plaintiff/ appellant.  Ismail Khan CJ said: “in this appeal, the appellant was correct in his submission that the judge was wrong in placing such an onus on the plaintiff…it is clear law that burden of proving testamentary capacity rested on the defendant. There was therefore a misdirection on the part of the judge in putting the burden of proving testamentary incapacity in the first instance on the appellant.”  The court affirming the principle laid down in the case of Barry v Butlin Dr. Shanmuganathan v Periasamy s/o Sithambaran [1997] 3 MLJ 61; - Held: It was the propounder to prove that the alleged will was duly executed, and then only would the challenger have to prove that the alleged will was forgery.

 There will be a misdirection of law if the party who challenges the validity of the will is, in the first instance, posed the burden of proving his case, the failure of which, results in the pronouncement that the will is not valid.

3

Requirements of a valid Wills  Secondly, the propounder of a will must also dispel any suspicious circumstances lurking behind the execution of the will.  A classic instance of a suspicious circumstances is where a will is prepared by a person who takes a substantial benefit under it.  Another instance is where a person is active in procuring the execution of the will uner which he takes substantial benefit by suggesting the terms of the will to the testator and instructing a solicitor chosen by that person. The Estate of Hew Wai Kwong, deceased [2000] 5 CLJ 604 - There was a petition by Sarah bte Abdullah @ Hew Lee Ling (petitioner) for the grant of probate in respect of the will dated 29 jan 1993 made by her late father. - The will was executed on the hospital bed when the testator was diagnosed to suffered from a stroke. - He was warded for almost a week and was treated for his stroke, hypertension and diabetes. - Consequently, various medicines were prescribed for the diabetes, high blood pressure and blood circulation in the brain of the testator. - The petitioner in her evidence said that she brought the will to the bedridden testator, to whom the petitioner read the will in English, paragraph by paragraph and then translated the will into the Hakka dialect, as obviously the testator did not understand English. - The petitioner claimed that testator had nodded his head in agreement. - The will was attested by two witnesses who did not understand Hakka at all and they testified that they spoke to the testator in English. - The solicitor who prepared the will did not act on the instruction of the testator and as a matter of fact, the testator had never met the solicitor at all. - The will was prepared on the exclusive instructions of the petitioner.

SHA 2720 Law of Succession - The petitioner was undoubtedly and unambiguously the prime mover for the preparation of the will. - The acts and conducts of the petitioner are absolutely suspicious. - The change from the testator’s usual solicitor, who had prepared his previous two wills, to the new solicitor who had never spoken to the testator regarding the disposition of his assets in the will was a bizarre situation. - What more if the solicitor and the witnesses to the will were the petitioner’s personal friends. - A testator of proper testamentary capacity would normally take precautions when altering his will or disinheriting his near relations by referring to his usual solicitors who have acted for him on previous occasions. - Therefore, the will was held to be invalid due to inter alia the existence of suspicious circumstances surrounding the making of the will. Distinguish the case between Parker v Felgate and Battan Singh Amirchand  In Parker v Felgate the testatrix at that particular time, of giving instructions to his solicitor to make the will, she was mentally capable, even though at the time the will was signed, the testatrix did not remember the instructions that she gave to the solicitor, the court declared the will is valid and that she believed she was executing a will made in accordance with those instructions.  However, in Battan Singh case, testator instructions had been sent through an intermediary to the solicitor, and it was not the solicitor who had acted for the testator on previous occasions or even ask him to send the previous wills or copies of them, as these are the precautions which a testator of sound mind who deliberately intends to alter his will and to disinherit his near relations, would naturally take. Therefore, it was held that the will was invalid on the grounds of the attendant suspicion and suspicion that the testator did not understand what he was doing.

Presumptions that Could be made by the Court  It is important to know on whom the burden of proof lays if there is a question of mental incapacity to be determined.  In this relation there are certain presumptions that could be made by the court is there is no evidence available as to the mental state of the testator at the time when the will is made.  If the will rational on its face, it can be presumed that the testator was sane at the time when it was made.  Accordingly, where a will, rational on its face, ie being attacked, the person attacking may either prove that the testator did not have adequate mental capacity generally, or that he lacked the capacity at the particular time the will was made.  When this is done, the burden of proof shifts once again to the propounder to establish that notwithstanding the general incapacity, there was adequate capacity at the time when the will was made.  If the will is irrational in its face, the presumption is that the testator did not have adequate mental capacity, so that those propounding it must satisfy the court of the testator’s capacity at the time when the will was made.  However, this presumption is always rebuttable when the party can prove to the contrary, as in the case of Harwood v Baker (1840) 3 Moo PC 282 - The will of the testator was held invalid, although the disposition of the property was rational on its face.  Another presumption that may be made by the court is the presumption of the continuance of a mental state.  If the court is satisfied that a testator had full mental capacity sometime before making a will, the court will presume that the testator continues to have that capacity until the will was made.  Likewise, when there is incapacity before making the will, the presumptions is the testator was incapacitated and continued to be incapacitated at the time when the will was made. 4

Requirements of a valid Wills Intention  The questions is whether, by the act which he does, the testator intends to make disposition of his property to take effect on his death, or to do any of the other things which can be done by the will.  The tests are: i. If the document appears to be testamentary on its face or appearance, the presumption is that the testator had the intention of making the will. However, this presumption can be rebutted by cogent extrinsic evidence proving that the document was not intended to take effect at death. ii.

Conversely, if the document dose not appear to be testamentary on its face, the propounder of the will must prove that it was intended by the testator to take effect at his death.

Hsu Yik Chai v Hsu Yaw Tang & Anor [1982] 2 MLJ 227 - The testator had made a will giving a piece of land to his brothers (respondents) and his wife “to take rightful possession so as to assist them towards the expenses of bringing up and educating my children until they became matured”. - The widow of the deceased left the children to be brought up by the respondents until they were grown up. - The appellant was adopted by the second respondent and his wife but he subsequently left to live with his mother. - The deceased land was later transferred to the respondents. - The appellant lodged a caveat against the lands but learned judge dismissed his claim. - On appeal, it was held that the direction in the will to the respondents and the widow in bringing up and educating the children until they attained majority was a condition of the bequest of the property. - The respondents had accepted the bequest and the condition imposed by the will.

SHA 2720 Law of Succession - The deceased intended to create a conditional gift and the two respondents but not the widow had fulfilled the condition. - The two respondents were therefore entitled to keep the land. Genuine Free Choice  The testator, in making of a will, needs to do it as a matter of free choice.  If a will is accompanied by force, fear, forgery or undue influence, the will or the affected part that is produced in this way, is not regarded as the act of the testator, and so probate will be refused.  The onus of establishing any these extraneous vitiating elements lies on those who assert this to be so. Carmel Mary Soosai v Josephine Lourdasamy Ratnavathy R. Soosai & Ors [1987] 2 CLJ 426 - The testator, by his last will, appointed his wife as the sole executrix and trustee and left her the residue of his real and personal estate to the exclusion of the caveators who are the children by his previous marriage. - One of the grounds for the caveators challenging the deceased’s last will and testament was that the will was not voluntarily executed by the deceased as the wife exercised undue influence over him. - On this ground, it was held that to establish undue influence sufficient to invalidate the deceased’s will, the caveators must that the petitioner coerced the deceased into executing the will in the form that it had taken and that the will was not voluntary act of the deceased. The coercion exercised may take the form of any pressure of whatever character. The relationship of a person who is alleged to have exercised unbounded undue influence over another does not raise a presumption of undue influence sufficient to vitiate a will. - Thus, the fact that the petitioner was the wife of the deceased at the time the will was executed, does not in itself raise the presumption that she had unduly influenced

him into executing his will. - In ths case, as the caveators failed to identify the coercion or pressure that had been practiced by the petitioner over the deceased leading to the execution of the will, they had not discharged the burden put on them. - Therefore, the will was held to be a valid one and probate was granted to the petitioner. Subramaniam v Rajaratnam [1957] MLJ 11 - A testatrix bequeathed a house to the respondent who had cared for her in her declining years. - The appellant opposed the grant of probate to the respondent on the grounds that the testatrix did not understand the terms of the will and if she had done so, she would not have executed it and that the testatrix was under the influence of the respondent when she executed the will. - On the evidence, it was proven that the instrument in question was the last will of a free and capable testatrix. - The burden to prove undue influence is on the appellant but he had failed to do so, on its existence.  Although the onus of establishing the extraneous vitiating elements lies on those who assert this to be so,  The principle does not override the onus of the propounder to establish that the will is a will of a free and capable testator. Morris & Ors v Norie Lim & Ors [1928-41] SCR 24 - The testatrix made a will providing for her daughters, grandchildren and other relations and various legacies were left to the Roman Catholic Church and person connected therewith. - At the making the will, the testatrix was acutely ill with severe pain and her brain was affected to some extent. - She had been received into the church either on the day the will was made or short time before. 5

Requirements of a valid Wills - The will was dictated to her and taken down by a Roman Catholic priest who himself took an interest in the estate on behalf of the mission. - Held: though there was no evidence of fraud or undue influence, the plaintiff had not discharged their duty of proving that the will propounded was the will of a free and capable testatrix. - As the parts dealing with different subjects were separable, the clauses providing for the relations of the testatrix should be admitted to probate and the clauses concerning the Roman Catholic Mission should be set aside.  On the other hand, if the alleged extraneous element can be proved, the will shall be declared aas invalid. Re Estate of Loh Ah Tong [1949] 15 MLJ 120 - Issue before the court was the genuineness of the signature “Loh Ah tong” on the will. - The will was attested by Mr Osborne-Jones, an advocate and solicitor of Singapore, and his clerk, but evidence it appeared that Mr Osborne-Jones had no personal knowledge of the person who had made the signature on the will. - The clerk had attested the signature had died. - An expert on Chinese character writing gave evidence that the signature was not made by the deceased. - Held: the defendant had discharged the onus thrown on her and had proved that the propounded will was a forgery.

SHA 2720 Law of Succession in identifying the signature of the testator, the opinion of expert witnesses was admissible in evidence and there was no requirement in law that such evidence be corroborated. - The learned trial judge should have accepted the expert evidence that the signature in the will was not the signature of the deceased. - The learned judge ought to have so concluded having regard to the evidence in its totality, including the very unlikelihood of an extremely careful and cautious non\_practising lawyer like the deceased to have simply walked into a law firm to have his last will drawn up by a solicitor with whom he had no previous dealing, and yet leaving the will at the solicitor's office without making any payment or even collecting it or leaving any instructions to the solicitor. - These suspicious circumstances in which the will had suddenly appeared together with the evidence of the expert had proved beyond reasonable doubt that the will was a forgery.



Dr. Shanmuganathan v Periasamy s/o Sithambaran [1997] 3 MLJ 61 - In this case, the plaintiff adduced expert evidence on comparing 20 undisputed signatures of the deceased with the disputed signature in the alleged will. - There were three fundamental differences in the signature and the expert was on the opinion that the will was a forgery. - Held: The trial judge in this case disregarded the evidence and misdirected himself and held that 6