Siti Norma Yaakob J:

In this contested probate suit, the petitioner was the wife of R. Soosai (deceased), who died testate on 14 April 1983, naming her the sole executrix and trustee of his will and leaving her the residue of his real and personal estate to the exclusion of the caveators, his children by a previous marriage.

The deceased's first wife died on 24 November 1947, leaving behind 8 children, 5 boys and 3 girls, surviving her, the youngest, Thomas, being only a year old. The deceased was then 42 and 2 years later, he married the petitioner and she in turn bore him 4 children, 1 boy and 3 girls. These 4 children have also been named by the deceased in his will as being the ultimate beneficiaries in the event the petitioner predeceased him.

Five of the petitioner's step-children have filed caveats against her petition for probate and their Counsel has indicated that 2 of the remaining 3 children will subsequently follow suit, leaving Thomas, the youngest of the deceased's children by his first marriage, to be the only step-child not objecting to the petitioner's application for probate.

The deceased's last will and testament dated 19 October 1982 is challenged by the caveators for the following grounds:

(1) It was not voluntarily executed by the deceased as the petitioner had exercised undue influence over him.

(2) Because of his ill-health, the deceased lacked testamentary capacity.

(3) It is not the deceased's last will and testament.

(4) There is a condition precedent expressed in the will that renders it defective.

To establish undue influence sufficient to invalidate the deceased's will, the caveators must show that the petitioner coerced the deceased into executing the will in the form that it had taken or to express it in another way the will was not the voluntary act of the deceased. The coercion exercised may take the form of any pressure of whatsoever character. In Wingrove v. Wingrove & Ors [1886] 11 P 81, it was held that "only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence."

The relationship of a person who is alleged to have exercised unbounded influence over another does not raise a presumption of undue influence sufficient to vitiate a will (see Halsbury's Laws of England, 4th Edn., Vol. 17, p. 1). Thus the fact that the petitioner was the wife of the deceased at the time the Will was executed, does not in itself raise the presumption that she had unduly influenced him into executing his will. This was clearly stressed in Wingrove v. Wingrove & Ors. above, when the Court held that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in a particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

Proof of undue influence in this case came in the form of affidavit and oral evidence and to consider whether the caveators had discharged the burden of proof, it is necessary that I look into the circumstances leading to the execution of the will.

In their 4 affidavits alleging undue influence in encl. 24A, 42, 48 and 92 the caveators averred to general statements that the petitioner had unduly influenced their father into executing the will in the form it had taken. They, however, have not identified the coercion or pressure that had been practised by the petitioner over the deceased leading to the execution of the Will and neither have they alluded to particulars or facts on which pressure can be concluded. The fact that the deceased had been dependent on the petitioner for his needs and well being, particularly during the last 16 years before his death when all his children by his two marriages had left the matrimonial home to lead their own lives, does not in itself amount to proof that she had unduly influenced his free will. On