The burden of proof to establish testamentary capacity lies with the will's propounder, while suspicious circumstances must be resolved in favor of the validity of the will.

Headnote:(A) Wills Act - Burden of Proof - Testamentary Capacity - It is well established that the burden lies on the propounder to prove the validity of a will. The challenger must prove undue influence or fraud. (Paras 1 and 10)

(B) Suspicious Circumstances - Discharge of burden by the propounder regarding any suspicious circumstances surrounding the will is required. A thumbprint may be sufficient if accompanied by testimony of testamentary capacity. (Paras 10 and 13)

Facts of the case:
The deceased executed a will in 1989 naming a friend’s child as beneficiary. The plaintiffs claim that a subsequent will made in 1999 lacked validity due to undue influence and lack of capacity from a brother. Confusion and poor health were noted.

Findings of Court:
The defendant proved the deceased had testamentary capacity at the relevant time, and the will made on April 16, 1999, was valid.

Issues: The court addressed the testamentary capacity of the deceased and the existence of suspicious circumstances in the making of the will.

Ratio Decidendi: The court held that the evidence sufficiently demonstrated the deceased's testamentary capacity despite health concerns, and the suspicious circumstances were adequately dispelled.

Result: The plaintiffs' claim dismissed; the defendant's counterclaim granted.

JUDGMENT

Cheah Keat Lim, the deceased was a widowed school teacher and lived alone with her pet dogs in her own home at No.50 Moulmein Road, Penang until she died in April 1997. She had a blood brother Cheah Chor Bok, the defendant, with whom she had been estranged for over 20 years. Her close friend was the first plaintiff, Amy Karn Woon Lin, who was a school clerk at Pulau Tikus Convent, the same school in which the deceased was a teacher and whom the deceased had befriended. The relationship between the deceased and Amy became very close over the years. The deceased became the god-mother to Amy's daughter. In 1989 the deceased made a will (hereinafter referred to as the "first will") naming Amy's daughter as the sole beneficiary of her estate.

The plaintiffs are the executors and trustees appointed under the first will and are now claiming for a declaration that the first will dated 29.3.1989 is the last true and valid will of the deceased and also for a declaration that the will dated 16.4.1999 (hereinafter referred to as the second will) is null and void. The defendant is claiming otherwise. In essence, the plaintiffs are now challenging the validity of the deceased's second will. The plaintiffs are contending that the deceased lacked the testamentary capacity to make the said will and the same was made under suspicious circumstances. It had been obtained by undue influence and fraud perpetrated by the defendant.

It is settled law that when the validity of a will is challenged, the burden of proving testamentary capacity and due execution of the same lies on the propounder of the will, as does the burden of dispelling any suspicious circumstances that may surround the making of the will. However, the onus of establishing any extraneous vitiating element such as undue influence, fraud or forgery lies on those who challenge the will (see: Eu Soon Yap & Ors v. Ewe Kean Hor, [2008] 2 MLJ 868 , Dr Shanmuganathan v. Periasamy s/o Sithambaram Pillai ; [1997] 2 CLJ 153 ; [1997] 3 MLJ 61 , Lee Ing Chin & Ors v. Gan Yook Chin & Anor, [2003] 2 MLJ 97 ).

The defendant's case.

In proving the validity of the second will, the defendant offered five witnesses including himself. The defendant testified that the deceased, Mdm. Cheah Keat Lim was his sister. They have been estranged for over 20 years but used to bump into each other during temple functions and at their relative's house during Chinese New Year. He is also kept informed about the deceased by DW4, his maternal cousin. On 12.4.1999 the defendant met with the deceased at DW4's house. The defendant was told that Amy had cheated her and had withdrawn monies from the fixed deposit joint account with her. According to the defendant, the condition of the deceased at that time was okay and alert although she looked tired. On the discharge of the deceased from the Gleneagles Hospital on 15.4.1999 he accompanied the deceased and DW4 to the Public Bank in Pulau Tikus to open her safe deposit box. They spent quite sometime at the bank to wait for Amy but she never showed up. They went home after the Bank Manager received a letter from the first plaintiff's lawyer regarding the opening of the safe deposit box. The deceased was angry and upset with the conduct of Amy and asked the defendant to help her and at the same time telling him that she wanted to give everything to the defendant. The same afternoon, the defendant and DW4 went to a lawyer's office and saw one Mr. Annamalai. The next day, on 16.4.99 Mr Annamalai and a staff from his office came over to the deceased's house where the second will and a Power of Attorney was prepared and thumb printed by the deceased. The defendant is the sole beneficiary of the will. DW4 and Mr. Annamalai's staff were witnesses to the said will. According to the defendant, the deceased was not able to write but thumb printed the will and the Power of Attorney, She spoke normally and coherently when questioned by Mr. Annamalai and was alert although physica

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2010 MarsdenLR 2719

HIGH COURT PULAU PINANGKARN WOON LIN & ANOR – AppellantVersusCHEAH CHOR BOK – Respondent[Civil Suit No. 22-730-1999]

The burden of proof to establish testamentary capacity lies with the will's propounder, while suspicious circumstances must be resolved in favor of the validity of the will.

Cases Referred (1)

HIGH COURT PULAU PINANG
KARN WOON LIN & ANOR – Appellant
Versus
CHEAH CHOR BOK – Respondent
[Civil Suit No. 22-730-1999]