probate law

Definition of a will

• Section 2 WA 1959

• Section 5 WA 1959

• Section 4 WA 1959

• Section 3 WA 1959

What are the requirements to a valid will

• age

• testamentary capacity

• codicil

• formalities

Answer explanation

Prescribed manner:

Section 5 of WA (Provides formality requirements)

a. Age : S 4 WA/ S2 AMA/ S26(4)

b. Testamentary capacity:

1. 1. mental/prior insanity/ delusion

2. 2. intention

3. 3. genuine free choice

4. c. formalities

5. 1. testator signature

6. 2. witness/ signature/attestation

Which are the following cases to Element #1: Mental capacity

• Banks &

  Goodfellow (1870)

  LR 5 QB 549

• Subramaniam v

  Rajaratnam [1957]

  MLJ 11

• Sethambal Doriappah & Anor v Krishnavandi Muniandy

• Hyu Yik Chai v Hsu Yaw Tang & Anor (1982) 2 MLJ 227

Answer explanation

Section 3 of WA:

Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required….

landmark cases: for mental capacity

1. 1. Banks v Goodfellow (What is meant by disposing memory?)

2. 2. Marquis of Winchester (How to determine mental capacity in the making of will?)

3. 3. Re Ng Toh Piew, Deceased

4. 4. Sethambal Doriappah & Anor v Krishnavandi Muniandy

5. 5. Lee Ing Chin & Ors v Gan Yook Chin & Anor

Cases that does not illustrates Prior insanity

• Chambers and Yaham

• Angulia v Rahimaboo

• Gan Yook Chin

• Dew v Clark

Answer explanation

Prior insanity - burden of proof - profounder - degree of proving - higher

1. 1. recovered from insanity at the time of executing the will (dah keluar hospital bahagia)

2. 2. made during lucid interval (medical term - a line of time) = period between 2 insanities

3. #reminder

4. not before and not after; it must be at the time of executing the will

Situations that will affect the state of mind

• - intoxication - mental disorders(any mental illness; any disability of the mind) - delusion (not mere/belief in something that does not exist)

which case is under delusion

• Bank v Good Fellow

• Dew v Clark

• Parker v Freigate

• Re White 1991

In the case of Hsu Yik Chai what are the principals to be followed for intention

• it is in written form

• signed by the testator

• attested by two or more witness

• by looking at the words of the will

Answer explanation

Testator made a will giving a piece of land to his brothers & wife to help them with expenses of raising and educating his children until they are matured. - Widow of the deceased left the children to be brought up by resps until they matured. - Deceased’s land was later transferred to the resps. The deceased intended to create a conditional gift, which the resps has fulfilled by accepting the bequest and condition imposed by the will entitled to keep land.

What case does not illustrates genuine free choice

• Subramaniam v Rajaratnam [1957] MLJ 11

• Morris & Ors v Norie Lim & Ors

• Re Estate of Loh Ah Tong

• Banks & Goodfellow (1870) LR 5 QB 549

Answer explanation

#no duress/coercion/undue influence/force

• if there is any allegation by the profounder/anyone who claim it is on the person alleging it to show

Scenario:

clause in will

a. my wife a sum of Rm 50,000

b. my dad a sports car registration number VAY 7702

c. my bestie a sum of Rm 20,000

The testator signed at the end of the will and asked two witnesses to attest the will.

Few days later altered the will from Rm 50,000 to Rm 100,000

issue: whether the will was valid?

• No

• Yes

Answer explanation

The answer is no

• - by virtue of section 15 of WA 1959

• - after a will is executed it is not valid

• - the will, will be effective as it is originally stated

What is the test of being apparent

• Ffinch v Combe (1894)

• Re Lee Kim Chye, deceased [1936] MLJ 49

• Mette v Mette (1859) 1 Sw & Tr.

• Re Itter (1950) 1 AER 68

Answer explanation

Alteration before execution:

Section 15 of WA

• - No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless such interaction shall be executed in like manner as hereinbefore is required for the execution of the will.

• - The will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or other part of the will opposite or near to such alteration or at the foot or end or opposite to a memorandum referring to such alteration and written at the end or some part of the will.

• - Once the will is executed, the testator cannot make alterations and it’d be invalid.

• - If the testator did alter his will after execution, the alteration would be valid if the words or effect of the will before such alteration shall not be apparent.

• - The principle derived: If the words before alteration could be read by natural means, it is apparent and any alteration made would not be effective.

The effect of Section 15:

1. 1. valid: if the words are no longer apparent

2. 2. not valid: if the words are still apparent (can be seen with natural means)

the issue is which one needs to be signed and attested by witness?

• 1

• 2

Answer explanation