(oral)

Gopal Sri Ram JCA (delivering the judgment of the court):

As long ago as 20 October 1995, Dr. Tho Yow Cheong made his last will and testament. In it he bequeathed RM1 to his wife and devised a 60%, 20% and a further 20% share to his mother, his daughter and his son respectively in the half-share owned by him in the property known as No. 27, Lorong Batai, Damansara Heights, Kuala Lumpur. He then devised and bequeathed the residue of his estate to his sister. By the same said will Dr. Tho, whom we shall for convenience refer to as the "testator", appointed his two brothers as his executors and trustees of his estate. In June 1997, the executors and trustees applied for grant of probate. The testator's wife was unhappy with the will. She challenged it. She entered a caveat in the probate registry.

Later, the executors and trustees as plaintiffs took out a writ to propound the will to have it declared valid. The wife was cited as the defendant in those proceedings. She counter-claimed for a pronouncement against the validity of the will. Subsequently, the action was tried. Witnesses were called on both sides and the learned judge in a reserved judgment dismissed the executors' claim and granted the relief sought by the defendant in her counter-claim.

The principal ground on which the learned judge granted the counterclaim related to the testamentary capacity of the testator. He held on the basis of the evidence before him that the testator lacked the required testamentary capacity. He also held that there were suspicious circumstances relating to the testamentary capacity of the testator.

The brief facts of the case are that in 1984, the testator was diagnosed as having nasopharyngeal carcinoma (nose cancer). He became quite ill. He sought and received treatment. He administered unto himself several drugs to alleviate the headache he was suffering. He was obviously in excruciating pain. At about the time when he was undergoing treatment, it appears that he became estranged from his wife, the respondent. He left the matrimonial home, which is the subject matter of the gift we referred to earlier. He went to stay with his mother and his younger brother. He presented a petition for divorce. There is some correspondence from him about the unhappy state of his marriage. On 20 October 1995 the testator executed his will in the presence of two witnesses. Both were classmates of the first appellant and friends of the testator. There is a suggestion by the appellants that sufficient evidence was led before the learned judge to establish testamentary capacity. Counsel for the respondent has taken us through parts of the evidence, which, he says, throws doubt on the appellants' case. In view of the orders we propose to make in this appeal, we find it best to refrain from making any comments on the facts of this case. We find it sufficient for present purposes to deal with the learned judge's judgment on testamentary capacity.

Now, the law upon the subject of a testator's testamentary capacity, we find to be well settled. The decided cases show quite clearly that very slight testamentary capacity is required for the making of a will. The cases in which wills have been held invalid for lack of testamentary capacity involve testators who were utterly insane either upon the finding of the probate court or by reason of an order appointing a committee on the ground of insanity of the testator.

What the law requires to vitiate testamentary capacity is an insane delusion existing at the time of making of the will. This will include insanity at the time of the making or giving instructions for the making of the will. There are numerous authorities on the point. We find it quite unnecessary to deal with all of them here. We would merely refer to three.

In Judah v. Isolyne Bose[1945] AIR PC 174 Lord Goddard when delivering the advice of the Privy Council held that the mere fact that the testatrix was unwell when she executed her will is