The standard of proof for fraud in civil cases is beyond reasonable doubt, and a donor's mental capacity is assessed through corroborative medical and lay evidence confirming their understanding during transactions.

Vernon Ong JC

[1]The plaintiffs and the individual defendants are siblings. Zainah Al-Attas Sdn Bhd (‘ZASB’) is their family company. Syed Hamid, deceased (‘Hamid’) was their eldest surviving heir sibling of the plaintiffs and the defendants prior to his demise on 24 April 2000. Prior to Hamid’s demise Hamid was living under the care of the defendants. During Hamid’s lifetime monies in the aggregate of RM1.125m were withdrawn from his account with Lembaga Untuk Tabung Haji (‘LUTH’). Hamid also transferred 146,503 shares in ZASB and 28,001 shares in Ladang Badariah Sdn Bhd (‘LBSB’) to Shariffah Badariah. In addition Hamid also made a gift of his one-half share of landed properties held under Lots 7346 and 7347 (‘the properties’) to Shariffah Badariah and Shariffah Nor. The plaintiffs filed three separate suits disputing the validity of the aforesaid transactions; the suits were subsequently consolidated. The plaintiffs’ claims are as follows:

Suit No 22–411 of 2002 (‘Suit 411’)

A declaration that the wrongfully misappropriated sum of RM1,125,000 of the moneys/property of Hamid belongs to the estate of Hamid and was impressed with a trust and other ancillary reliefs.

Suit No 22–412 of 2002 (‘Suit 412’)

A declaration that the defendants restore to the estate of Hamid 146,503 shares in ZASB and 28,001 shares in LBSB and other ancillary reliefs.

Suit No 22–413 of 2002 (‘Suit 413’)

A declaration that the one half-share of the properties is the estate of Hamid and ancillary reliefs.

THE PLAINTIFF’S CASE

[2]In Suit 411 the plaintiffs contend that between 8 May 1998 to 29 February 2000 withdrawals in the aggregate sum of RM1.125m were made from Hamid’s account with LUTH. The withdrawals were made fraudulently using Hamid’s forged thumbprint. Consequently, the monies were impressed with a trust. The monies were utilised to purchase 357,298 shares in ZASB. Hamid was under the defendants’ domination due to his mental and physical incapacities and exploited and deceived by the defendants into parting with his monies.

[2010] 6 MLJ 422 at 429

[3]In Suit 412 the plaintiffs assert that upon obtaining the power of attorney (‘PA’), Badariah and Shariffah Fatimah (‘Fatimah’) wrongly deprived Hamid by having his 146,503 shares in ZASB transferred and registered in Badariah’s name on 20 February 1998. It is contended that the defendants forced, misled and tricked, exploited Hamid who was mentally and physically infirmed at death’s door to part with his shares in ZASB and LBSB even though he was under their authority and guidance as guardians and fiduciaries. The misappropriation of Hamid’s shares was a breach of trust and a breach of fiduciary duty causing loss to Hamid and profiting Badariah. Fatimah assisted Badariah in this fraudulent and dishonest scheme.

[4]In Suit 413 the plaintiffs contend that in furtherance of a dishonest and fraudulent scheme the defendants deprived Hamid of his one-half share of the properties. Hamid was under the defendants’ domination in their house due to his mental and physical incapacities. Rodziah bt Idris (‘Rodziah’) who personally handled matters for the defendants was also purporting to act for Hamid. Rodziah had absolute knowledge that Hamid was completely under the domination of the defendants and had knowledge of the PA obtained by Badariah and Fatimah.

[5]In all three suits it is also contended that there was a guardian and ward relationship and fiduciary/trustee relationship which produce a presumption that the defendants are deemed to be in a position to dominate the will of Hamid as he was completely dependent on them and vulnerable and are