Back
2022 MarsdenLR 1283
HIGH COURT MALAYA SHAH ALAM
PUNNUSAMY ARUNASALAM – Appellant
Versus
MANIMARAN ARUNASALAM & ANOR – Respondent
[Civil Suit No: BA-22NCVC-69-02/2020]
A testator must possess testamentary capacity, defined as understanding the nature of the will, the extent of the property, and the claims of beneficiaries.
Headnote:(A) Wills Act 1959 – Section 3 – Probate and Administration Act 1959 (Revised 1972) – The plaintiff sought to revoke the Grant of Probate for the Deceased's impugned will, asserting she lacked testamentary capacity at execution. The court found no evidence suggesting incapacity and upheld the will. (Paras 1-54)
(B)
Testamentary capacity – A testator must be of sound mind, able to understand the nature of their acts, the extent of their property, and the claims of beneficiaries. (Paras 20-22)
(C)
Burden of proof – In challenging a will, the burden lies with the challenger to disprove testamentary capacity, which the plaintiff failed to do. (Paras 46-52)
Facts of the case:
The plaintiff claimed the Deceased lacked capacity to will her estate due to past health issues. The court examined the circumstances around the making of the will to assess the Deceased's mental state.
Findings of Court:
The Deceased was found to have understood the nature of her will and its effects, evidenced by her actions and testimony of witnesses.
Issues
: The main issues were the testamentary capacity of the Deceased and the validity of the will post-challenge.
Ratio Decidendi:
The court ruled that a testator's decision-making ability must be assessed in context, emphasizing the presumption of capacity unless disproved.
Result:
The plaintiff’s action was dismissed, maintaining the validity of the Grant of Probate.
JUDGMENT
Introduction
[1] The plaintiff sought a court order to revoke or set aside a Grant of Probate dated 4 September 2019 which was granted by this court under Originating Summons No. BA-32NCVC-599-07/2019 (hereafter 'the probate action') in relation to a will dated 5 September 2018 (hereafter 'the impugned will'). The probate action was filed by the defendants (who were the executors / beneficiaries of the impugned will) in year 2019.
[2] In essence, the plaintiff's action questioned the legitimacy of the impugned will. The plaintiff averred the testatrix, who was the plaintiff's mother, did not have the testamentary capacity at the time of the making of the impugned will. The parties have gone through a full trial. On 17 February 2022, this court dismissed the plaintiff's action. The reasons for the decision are set out below.
The Background Facts
[3] The plaintiff and the defendants are siblings. The testatrix, Thangammah a/p Muthu (hereafter 'the Deceased'), passed away on 22 June 2019, and the cause of her death was "stroke" as stated in the Death Certificate.
[4] Before her passing, the Deceased made the impugned will on 5 September 2018. The impugned Will was prepared by a firm of solicitors Messrs Gerard Lazarus & Associates.
[5] In the impugned will, the Deceased bequeathed all her real and personal estate to only two of her six children, namely Manimaran a/l Arunasalam and Ramu a/l Arunasalam, who were the defendants in this suit, in equal shares. The defendants, other than being named as the beneficiaries, were also named as the executors and trustees in the impugned will.
[6] The Deceased executed the impugned will by placing her thumbprint on the same. The impugned will was then witnessed by two witnesses, namely the late Mr. Gerard Lazarus and Ms. Darshne a/p Jeevananthan (DW1). Both were advocates and solicitors of the High court Malaya.
[7] After the passing of the Deceased, the defendants filed the probate action in July 2019. On 4 September 2019, the defendant obtained the Grant of Probate. The defendants were duly appointed as the executors of their mother's impugned will.
[8] On 29 January 2020, the plaintiff filed a Citation against the defendants pursuant to O 72 r 7 of the Rules of 2012 to challenge the Grant of Probate, and required the defendants to bring the Grant of Probate to be produced and left at the court Registry.
[9] On 20 February 2020, the plaintiff filed this action. The nub of the plaintiff's complaint is encapsulated in the following paragraphs of the Statement of Claim:
"6 SI MATI mengalami cerebrovascular accident pada tahun 2015, dan sejak dari itu beliau terlantar di atas katil dan hanya diberi makan Ryle's tube. Keadaan SI MATI tidak pernah pulih sehingga beliau meninggal dunia pada 22 Jun 2019 akibat acute coronary syndrome.
7. Dalam kata lain, SI MATI tidak mempunyai kapasiti untuk membuat wasiat yang sah pada 6 September 2018, selaras dengan peruntukan di bawah s 3 Akta Wasiat 1959. Ini bermakna, SI MATI telah meninggal dunia tanpa wasiat yang sah.
8. Bagi maksud Aturan 72 kaedah 13(3)(b) Kaedah-Kaedah Mahkamah 2012, adalah diplidkan bahawa SI MATI, pada masa penyempurnaan wasiat itu, berada dalam keadaan tak sempurna akal, ingatan dan kefahaman.
9. Oleh itu, terdapat alasan yang munasabah untuk Mahkamah Yang Mulia ini membatalkan GERAN PROBET, selaras dengan peruntukan di bawah s 34 Akta Probet dan Pentadbiran 1959."
[10] In essence, the plaintiff averred that the Deceased was not of sound mind, memory and understanding at the time of making the impugned will (see O 72 r 13(3)(b) Rules of 2012). In other words, the plaintiff was challenging the testamentary capacity of the Deceased at the time of the making of the impugned will.
The Findings Of This court
[11] It was not in dispute that the Deceased suffered cerebrovascular accident (hereafter "CVA") in 2015, and thereafter, she depended on the Ryle's tube for food/nutrition until her passing on 22 June 2019. It was also not in
