FACTS

One Dr. Tho Yow Cheong (deceased) died testate on 5.12.96 and is survived by his wife (the defendant), his mother, his daughter and a son. By a will dated 20.10.95 the deceased appointed the plaintiffs (his elder and younger brothers respectively) as his executors and trustees. On 16.6.97 the plaintiffs applied to the High Court at Kuala Lumpur by way of Petition No. S1-32-200-97 for a Grant of Probate of the said will. On 10.7.97 the defendant entered a caveat with the Registry, thereby preventing the Grant of Probate to the plaintiffs without the defendant being given notice.

THE CLAIM AND COUNTERCLAIM

On 21.10.97 the plaintiffs commenced this probate action against the defendant praying for the Court to decree probate of the said will in solemn form of law. The defendant counterclaimed seeking a declaration that the said will is null and void and prayed that she be granted Letters of Administration to the estate of the said deceased.

FINDINGS OF THE COURT

Testamentary capacity of the deceased

It is trite law that the burden of proving that the deceased had the requisite testamentary capacity whilst executing the will lies with the party propounding the will and in this case, the plaintiffs (see Udham Singh v Indar Kaur [1971] 2 MLJ 263 FC and Dr. Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 2 CLJ 153; [1997] 3 MLJ 61 FC). However, in Dr. Shanmuganathan the Federal Court emphasised that where there are suspicious circumstances lurking behind the execution of the will the onus is on the party propounding the will, to remove, by way of explanations, such suspicious circumstances. In order to test the testamentary capacity of the deceased it is necessary to establish that at the time of executing the will the deceased was of "sound mind, memory and understanding". The plaintiffs sought to argue that the deceased was of "sound mind, memory and understanding" when he executed the will. It is now necessary to test the evidence of two witnesses, namely, PW6 (Dr. Tsao) and DW1 (Dr. Sabri), so that the Court can be satisfied that their evidence supported the plaintiffs' case that at the time of executing the will the deceased was of "sound mind, memory and understanding". There is clear documentary evidence that nearer the date of the execution of the will the deceased was having hearing loss, slurring of speech and double vision, amongst others. The deceased had been administering to himself the steroid Dexamethasone since February 1993 which DW1 said, was tantamount to describing it, as long term use. It is clear that the consequence of such long term use of this drug is to cause moon face, gastric bleeding, muscle weakness, wasting of the muscle, suppression of the immune system and resultant psychiatric effects including depression, insomnia, schizophrenia and psychological dependency. There is evidence that the deceased did indeed suffer the side effects of this drug. He was euphoric, had muscle weakness and suffered from psychiatric effect of the drug.

The deceased's illness

The deceased, a practising doctor with his own clinic, was diagnosed as having nasopharyngeal carcinoma (nose cancer) in 1984. He sought treatment in Hong Kong and was accompanied by the defendant. Fortunately, the treatment was successful and the cancer was eradicated. Immediately after his treatment was completed, the deceased resumed his work and all his usual activities. From 1984 onwards, as a precaution, the deceased went for regular check-up locally. The results were good and there was no indication of a relapse or a re-emergence of the cancer. Sometime in June 1991, the deceased's brother, one Tho Yow Pong (TYP), was also diagnosed with a similar type of nose cancer. TYP sought treatment in Singapore under Dr. Tsao. While visiting his brother in Singapore, the deceased took the opportunity to show his own x-ray film and MRI scan to Dr. Tsao. After examining the x-ray and the scan, Dr. Tsao advised the deceased to have a bi