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2023 MarsdenLR 2881
HIGH COURT MALAYA GEORGETOWN
TAN SUAN SIM – Appellant
Versus
OOI JOO AIK – Respondent
[Civil Suit No: PA-22NCVC-85-05-2022]
A valid will requires due execution and testamentary capacity, regardless of perceived fairness; the court must not equate testamentary capacity with contractual capacity, establishing legitimate familial relationships for inheritance.
Headnote:The court assesses the validity of a Will under the Wills Act 1959, finding it duly executed with no suspicious circumstances established. The Plaintiff's proof of the Will’s validity underpins the conclusion that the Deceased died testate, thus granting a Grant of Probate to the Plaintiff. Conversely, the Defendant's counterclaim asserting invalidity fails due to lack of evidence supporting claims of undue influence or evidence of forgery. The court upholds the principle that testamentary capacity must be established, dismissing counterarguments regarding the legitimacy and collective property of the children. The court sets costs at RM60,000 against the Defendant.
Key Points: - A will must be in writing, properly executed, and the testator must be of sound mind (!) (!) (!) . - Testamentary capacity requires the testator to understand the nature of the act, the extent of their property, and the claims to which they ought to give effect (!) (!) (!) . - The burden of proving due execution, testamentary capacity, and disproving suspicious circumstances lies with the party propounding the will (!) (!) (!) . - A will is not invalidated by minor discrepancies or differences in signatures, and external evidence is preferred over expert opinion when directly contradicted (!) (!) (!) . - The court must consider the totality of evidence, including conduct and circumstances, to determine validity and existence of trust or marriage (!) (!) (!) .
What are the essential requirements for a will to be considered valid under the Wills Act 1959?
What constitutes valid testamentary capacity under the Wills Act 1959?
What is the burden of proof regarding the validity of a will and allegations of forgery?
| Table of Content |
|---|
| 1. validity of will and distributions thereof must be clear. (Para 1 , 6 , 7) |
| 2. counterclaims must be substantiated beyond claims. (Para 12 , 13 , 14 , 15) |
| 3. testamentary capacity is assessed by clear evidence. (Para 22 , 26 , 32) |
| 4. final verdict favors plaintiff confirming the will's validity. (Para 144) |
Introduction
[1] This dispute between the Plaintiff ("P") and the Defendant ("D") relates to the Last Will and Testament of Ooi Swee Poh ("Deceased") dated 3 January 2017 ("Will"). After a full trial, I allowed P's claim. I dismissed D's counterclaim. Here are the grounds of my judgment.
The Trial
[2] The trial took place over 4 days on 23 February 2023, 24 February 2023, 1 March 2023 and 2 March 2023. The witnesses who testified at the trial were:
Background Facts
[3] The Deceased passed away on 24 November 2018. He was first diagnosed with colon cancer sometime in the year 2014 but recovered from the illness, requiring no further treatment. Sometime in October 2018, it was discovered that his cancer had relapsed. He eventually succumbed to the cancer.
[4] The Deceased had executed two copies of the Will. They are marked respectively as 'IDP-5' and 'IDD-6'. The Will contained two pages. The first page carried an initial or signature of the Deceased. The Deceased had signed at the end of the Will, and above the signatures of the two witnesses to the Will ie PW-1 and PW-2. The copy of the Will marked as 'IDP-5' is the copy that was found amongst the Deceased's possession by P and her son, PW-5. The copy of the Will marked as 'IDD-6' is the copy that was kept at PW-1 's office.
[5] The Will was prepared by PW-1. PW-1 is an advocate and solicitor practising under the name and style of Messrs L.S. Toe, Looi & Co ("Said Law Firm"). PW-2 is a clerk working at the Said Law Firm. The Deceased had appointed P as the sole executrix and trustee of his Will. He referred to P as his wife in the Will.
[6] The main crux of the dispute between P and D centers on cl 9 of the Will. Whereby the Deceased bequeathed his whole and undivided share in the property held under Geran No 32186, Lot No 147, s 3, Bandar Jelutong, Daerah Timur Laut, Pulau Pinang with an address at No 129, Jalan Tan Sri Teh Ewe Lim, 11600 Penang ("No 129 Property") in the following manner:
(i) 2/5 share to P;
(ii) 1/5 share to his son, Ooi Gin Aik (PW-5);
(iii) 1/5 share to his daughter, Ooi Ai Lin; and
(iv) 1/5 share to D.
[7] Ooi Gin Aik (PW-5) is the son of the Deceased with P. Ooi Ai Lin ("Daughter") and D are the children of the Deceased with one Ooi Kim Hwa ("1st Wife"). The marriage between the Deceased and his 1st Wife was not registered. It was a customary marriage. It is not in dispute that the Deceased had left the 1st Wife since 1984, and had never returned to the No 129 Property to live in until his death. P avers that since February 1981, she and the Deceased had married in accordance with Chinese customary laws and tradition. Their son, PW-5, was born on 25 November 1981.
Events After The Demise Of The Deceased
[8] After the demise of the Deceased, PW-1 had informed PW-5 (P's son) vide a letter dated 24 December 2018 that the Deceased had executed a Will at her office. This was done at the request of D, who was the first to contact PW-1 after the death of the Deceased. On 11 January 2019, D went to PW-Ts office for the reading of the Will, the copy which was kept in PW-1 's office. D obtained a photocopy of the Will from PW-1 (ie 'IDD-6').
[9] P and her son (PW-5) were not present at the reading of the Will on 11. 1.2019. P and her son attended at PW-Ts office for the reading of the Will sometime in February 2019. This was after they had found the Will amongst the belongings of the Deceased at the property held under Geran 12911/M1/3/2, Lot No 1384, s S Bandar Georgetown, Daerah Timor Laut, Pulau Pinang with an address at No 85-K, Jalan Sungai Pinang, 10150 George Town, Pulau Pinang ("No 85-K Property").
[10] On 5 March 2019, D, the 1st Wife an
