JUDGEMENT

(Oral)

Gopal Sri Ram JCA:

This is the judgment of the court.

Background And Issues

There are two appeals before us, they both arise from 3 consolidated suits tried at the High Court in Penang. The litigation in these appeals has to do with the estate of the late Datuk Khaw Bian Cheng. The subject matter of the appeals concerns 2 sets of wills, one set of 3 made on 24 October 1990, which we will refer to as the "1990 Wills" and another set of 3 wills made on 3 August 1992, which we will refer to as "1992 Wills".

The appellants before us in the first appeal, Appeal No.: P-02-360-98, were the defendants in all 3 suits. The respondents before us were the plaintiffs in those suits. The appellants in the second appeal Appeal No.: P-02-409-98 intervened in one of those suits, had themselves added as defendants and delivered a counterclaim about which we will say something in a moment. Suffice that we mention now that the appellants in the second appeal are seeking an order that Datuk Khaw Bian Cheng (the deceased) died intestate. In other words, they are seeking to have both the 1990 and the 1992 Wills declared invalid.

In the court below, the learned judge held the 1990 Wills to be valid but struck down the 1992 Wills. The appellants in Civil Appeal No. P-02-360-1998, the first appeal are seeking a reversal of the judge's findings that the 1992 Wills are invalid. The judgment of the learned judge is reported in ; [1998] 3 MLJ 457. For that reason, we will not rehearse the facts of this case in any detail. All the relevant facts and circumstances of this case have been dealt with admirably by the learned trial judge in his lengthy and carefully written judgment.

Before us the following issues were canvassed for determination. First, whether the learned judge was right in holding that the 1990 Wills were valid. The subsidiary issues connected with this question relate to the judge's rejection of the plea of undue influence and suspicious circumstances raised by the appellants in the second appeal. Second, whether the learned judge was right in striking down the 1992 Wills and in the resolution of this issue are involved the learned judge's findings of fraud, undue influence and the existence of suspicious circumstances surrounding the making of the 1992 Wills. Third, whether the learned judge was correct in making the orders in what has been termed the recovery action. These are orders whereby, the learned judge sought to restore to the estate of the deceased monies and properties it had lost. Fourth and last, whether the learned judge was right in awarding exemplary damages. We will deal with each of these issues in turn.

The First Issue: The 1990 Wills

The facts and circumstances surrounding the making of the 1990 Wills have been dealt with at great length by the learned judge. He came to the conclusion that these wills were valid after a careful and thorough examination of the masses of evidence, both oral and documentary placed before him. For present purposes, it suffices for us to say that the 1990 Wills were drafted by Hamid Merican (PW1) on the instructions given him by the deceased. We find nothing unusual in this given the close friendship that subsisted between these 2 gentlemen. It is not in dispute that at or about the time the 1990 Wills were made, the deceased had some psychiatric problems. He was receiving treatment for this from Dr Tan Chee Kuan (PW6) who was the deceased's regular medical attendant. Immediately prior to the making of the 1990 Wills the deceased visited PW6. He wanted to be satisfied that he was mentally fit to make a will. Having had the wills prepared for him, he went along to the offices of Datuk Ghazi Ishak (PW12), a very senior practitioner of the Malaysian Bar. PW12 ascertained that the wills had been read and understood. The formal requirements had been attended to. The appellants in the second appeal had in the court below attacked the 1990 Wills on the ground that it was the produc