The court upheld the validity of the will, emphasizing that restrictions on alienation in the will do not invalidate it, and reaffirmed the presumption against intestacy.

[1] The Plaintiff ("P") filed an Originating Summons dated 7 December 2022 vide encl 1 ("OS"). The OS sought for a declaration that cls 3 and 5 of the Will dated 26 November 1990 ("Will") of Vella a/l Nariana ("Testator") are void.

[2] On 22 June 2023, I dismissed the OS. Here are the grounds of my decision.

Background Facts

[3] The Testator passed away on 27 December 1993. On 14 April 1994, P and two of his siblings obtained a Grant of Probate of the Will from the Penang High Court vide Petition No 32-22-94.

[4] The other two executors under the Grant of Probate are Rammu a/l Vella and Andawali a/p M Vella They are the 6th and 8th Defendants respectively.

[5] P is one of the beneficiaries of the estate of the Testator. The 1st and the 5th to 16th Defendants are the other beneficiaries of the estate of the Testator.

[6] The main asset of the estate of the Testator is an immovable property known as Lot 1478, Mukim 13, North East District, Penang held under Geran Mukim No 323 ("Property").

[7] By cl 3 of the Will, the Testator bequeathed the Property in the following manner:

"3. I give my property known as No Geran Mukim 323, Lot No 1478, Mukim 13, North East District, Penang together with the house erected thereon bearing No 1007, Mk 13, Relau, Penang unto my Trustees upon trust to develop the land but not to sell the same and profits derived from activities carried out on the land to be divided in equal shares unto my wife and children named below."

[8] The Testator provided in cl 3 of his Will that the Property cannot be sold. The beneficiaries are to enjoy the profits derived from activities carried out on the Property. Which profits are to be divided in equal shares between the wife and the children of the Testator.

[9] P currently operates a Shell petrol station that is located on the Property.

[10] On 25 November 1993, the Testator had granted a lease of the Property for 30 years ending on 31 August 2023 to Shell Malaysia Trading Sdn Bhd The Testator had also executed, simultaneously, a Lease Annexure with Shell Malaysia Trading Sdn Bhd to operate the Shell petrol station on the Property. For this purpose, the Testator had appointed P as his nominee to obtain the requisite statutory licences to operate the Shell petrol station on the Property.

[11] Clause 5 of the Will further provides as follows:

"5. I give devise and bequeath my above-mentioned property and all other property of whatsoever nature and wheresoever situate unto my Trustees to hold the same for my wife and the abovesaid children."

[12] The 12th Defendant is the late widow of the Testator. P and the rest of the Defendants, except the 2nd to 4th Defendants, are the children of the Testator named in the Will.

[13] The 2nd to 4th Defendants are the current trustees of the estate of the Testator, together with the 1st Defendant. The 4th Defendant is the son of P. The 2nd and 3rd Defendants are respectively the sons of the other two original executors under the Grant of Probate.

The Originating Summons

[14] The OS sought for the determination of certain questions and for the following orders and reliefs:

"1) Whether in law cls 3 and 5 of the last Will and Testament of Vello a/l Nariana, dated 26 November 1990, constitute a general prohibition on alienation which has the effect of attempting to fetter the natural qualities of the absolute interest given;

2) In the event the answer to the above question is in the positive, then a declaration, tha