Testamentary capacity is determined by the soundness of mind at the time of the will's execution, not solely by the physical condition of the testator; secret trusts are valid under Malaysian law.

Mohd Zawawi Salleh FCJ:

Introduction

[1] This is an appeal from the judgment of the Court of Appeal dated 13 October 2018 in terms of which it allowed the appeal by the defendants against the judgment of the High Court at Pulau Pinang dated 24 October 2017. The High Court had allowed the plaintiffs claim, revoked the grant of probate issued to the defendants and inter alia declared that the will dated 18 December 2013 alleged to be the last will and testament of one Chin Joo Ngan ("deceased") as invalid and the deceased had died intestate.

[2] The appeal was by leave granted by this Court on 18 March 2019 on the following questions of law:

First Leave Question

i. Whether the concept of secret trust is applicable to Malaysia as there is no decision regarding the applicability of secret trust?

Second Leave Question

ii. Whether secret trust is applicable in a case involving the issue of testamentary capacity of a testator?

Third Leave Question

iii. Whether secret trust is contradictory to the Malaysian Wills Act 1959 and/or is against public policy as it can be abused?

[3] We heard the appeal on 24 February 2020 and at the conclusion of arguments of the parties, we dismissed the plaintiffs/appellants appeal with costs. We now give the detailed grounds for our decision.

[4] For convenience, we will refer to the parties by their designations at the High Court: the appellants as the plaintiffs and the respondents as the defendants.

Factual Background And Antecedents Proceedings

[5] The 1st plaintiff and the 2nd plaintiff are the lawful children of the deceased.

[6] The 1st defendant is the elder brother of the deceased and the 2nd defendant is the son of the 1st defendant and nephew of the deceased. Both of the defendants reside in Australia.

[7] The deceased by profession was an engineer and had three wives, namely:

i. Chan Cheng Lian (first wife);

ii. Chan Cheng Geok (second wife); and

iii. Yeoh Bee Leng @ Katherine (third wife).

[8] Only the marriage between the deceased and the first wife was registered. The deceased married the first wife on 14 July 1976. The remaining two marriages were not registered.

[9] The plaintiffs are the deceaseds children from his first wifes marriage. The deceased had four children with the second wife, of whom two were still studying when the deceased died, and the youngest was still a minor at the time. The deceased and the third wife had no children.

[10] It is important to note that the second wife is the first wifes elder sister. The second wife had a marital affair with the deceased while the first marriage subsisted.

[11] Sometime in 1985, the first wife found out about her husbands affair with her sister. Unable to accept the mistrust and betrayal, the first wife eventually filed for divorce and was granted a decree nisi on 8 August 1991. The decree nisi, however, has not been made absolute.

[12] In the meantime, the deceased married his third wife who was also his business partner. His third wife was not called as a witness during the trial. Nevertheless, their wedding photographs were tendered to show that they went through a Chinese customary marriage ceremony.

[13] The deceased was diagnosed with fourth stage renal cancer/terminal cancer in 2013. In September 2013, the deceased underwent surgery to remove his kidney due to a growth and tumor.

[14] The family conflicts arise from the will made by the deceased dated 18 December 2013. The will was prepared by an advocate and solicitor named Peter Huang (DW1) who also witnessed the will together with his secretary, Lau Ean Nah (DW2), on 18 December 2013. Under this will, the deceased gave all his assets and properties to the defendants.

[15] The deceased died six days after the will was made, that is to say, on 24 December 2013. Coincidentally, the date of birth of the deceased is also on 24 December.

[16] The defendants later obtained the grant of probate on 12 February 2014 at the Kuala Lumpur High Court.

[17] Consequently, the plaintiffs filed a civil suit