Chin Huat Yean @ Chin Chun Yean & Anor v Chin Jhin Thien & Anor [2019] 5 MLJ 673

Court of Appeal (Putrajaya)

Testamentary Capacity to Make a Will

Facts

1.     The Deceased was an engineer by profession, and he had three wives, namely Chan Cheng Lian (first wife); Chan Cheng Geok (second wife); and Yeoh Bee Leng, Katherine (third wife).

2.     Out of three marriages, only his marriage with the first wife was registered.  The Plaintiffs are the children of the Deceased from his marriage with Chan Cheng Lian.  With the second wife, the Deceased had four children.  There was no child with the third wife.

3.     The second wife, Chan Cheng Geok (DW4) is the elder sister of Chan Cheng Lian (PW5).  During the subsisting of the first marriage, DW4 had a marital affair with the Deceased.

4.     Unable to accept the fact that her own siter had stolen her husband, PW5 filed for divorce.  Decree nisi was granted but was not made absolute.

5.     The First Plaintiff had a cordial relationship with the Deceased during his childhood day up to adulthood.  The First Plaintiff who works as a subcontractor always deal with the Deceased in their works related matters.

6.     In the meantime, the Deceased married his business partner, Yeoh Bee Leng, Katherine.  Katherine was not called as a witness.  However, there were wedding photographs tendered to show she is married to the Deceased.

7.     Subsequently, the Defendants obtained the grant of probate on 12 February 2014 vide Kuala Lumpur High Court Originating Summons No S-32NCVC-95-01 of 2014.

8.     The Respondent’s (Plaintiffs’) pleaded case is the Appellants (Defendants) had manipulated, unduly influenced and cheated the Deceased to make the will.

9.     The dispute in this case is revealing the will dated 18 December 2013 (“the ‘Disputed Will’”).

1.     Whether the Deceased had a testamentary capacity to make the Disputed Will.

1.   Whether the Deceased had a testamentary capacity to make the Disputed Will.

(a)   It is elementary knowledge that a testator can bequeath his estate to any person and the heirs of the Deceased cannot complain.

(b)   However, if the Deceased has no testamentary capacity and/or the executors of the will when challenged had not dispelled all the suspicious circumstances, etc surrounding the making of the will, the grant of probate will be set aside.

(c)   The law relating to setting aside of the will had been extensively dealt in the case of Sarjit Singh a/l Kesar Singh v Harjindar Kaur a/p Koondan Singh [2016] 12 MLJ 27.

(d)   In the instant case, all the requirements for the formality of a valid will had been satisfied.  The Appellants’ defence was simple and straight forward and they had pleaded secret trust.

(e)   Referring to the case of Fong Mei & Anor v Ko Teck Siang & Ors and other applications [1998] 3 MLJ 140, the Court’s endorsement of the secret trust does not breach the Wills Act 1959 (Act 346) or any other statutory law.

(f)     It only shows bona fide and the true intention of the testator if the plea of the secret trust succeeds.

(g)   Thus, as a general rule, the only instance the probate can be set aside is in a case, if the Respondent had established that the testator did not have testamentary capacity to execute the said Disputed Will.

(h)   In this case, the learned judge had misdirected on the issue of testamentary capacity when combining the issue of secret trust with that of testamentary capacity.

(i)      The law does not permit that as the testamentary capacity is related to medical evidence or related credible evidence and has nothing to do with a story related to secret trust.

(j)      The Court was of the view that there is no doubt that DW3, DW4 and DW5 are interested witnesses and they wanted to grab the Deceased’ Property.

(k)    In terms of secret trust, it is well established that a secret trust is enforceable in law if the criteria set out in common law cases are met.  For example, The Law of Wills by Andrew Strahan J, published as early as in 1908, on secret trust stated that:

“The third cause of the difficulty of drafting wills arises from the desire of testators to avoid publicity. A will on the death of the testator becomes a public document. As we shall see, it is deposited at Somerset House, where anybody can get a look at it for a shilling. Now many testators and still more testatrixes object to the world knowing what they have done with their property, and so they endeavour to dispose of it without letting the real dispositions appear in the will. And in spite of the Wills Act, 1837, enacting that all the dispositions must be in writing, this can be done by means of what are called secret trusts, that is, by the ostensible legatees in the will becoming secretly trustees of the legacy for persons or purposes not mentioned in the will.”

(l)      Believing there was a secret trust in her favour, DW4 sided the Defendants to the extent she lied when she said on 18 December 2013, the Deceased told her he had made a will.

(m)  With regard to DW1’s testimony, he seems not to know anything about the Deceased’ medical background and mental capacity.  Nevertheless, DW1 had to say the Deceased is of sound mind to protect his reputation.

(n)   This leaves the Court with the medical evidence of PW1, PW4 AND DW6.  All three witnesses agreed that in the case of the Deceased who is terminally ill, compliance with the golden rule is the best practice.

(o)   Although the English cases cited by the Defendants appeared to suggest that non-compliance with the golden rule does not mean the Deceased had no testamentary capacity, but at the same time PW1, PW4 and DW6 also agreed that the Deceased’s condition deteriorated with the passing of time.

(p)   This was supported by PW1’s statement that the Deceased had trouble to cope with cancer physically and mentally in which showed the Deceased was depressed as he knew there is no cure and death is coming.

(q)   Furthermore, the First Plaintiff (PW6) has testified that when he saw the Deceased on 18 December 2013, the Deceased cannot talk and cannot recognised him.

(r)     As a result, the Court concurred that all communication was done by DW3 as the Deceased was unable to talk.  Thus, the Deceased was merely a puppet.

(s)     For those reasons, the Court held that the Deceased did not have a testamentary capacity to make the  Disputed Will.

1.     The Court of Appeal allowed the appeal with no order as to costs.

1.     In order to create a valid will, there are three requirements that need to be satisfied namely age, testamentary capacity and formalities.

2.     Testamentary capacity refers to a person’s full sense and mental sanity in order to confirm and sign the will after understanding what his assets comprised and what he is doing by making a will.

3.     It can be inferred that in order to have testamentary capacity, firstly, the testator must be capable of understanding the nature of the will and its effects in such way that the will shall only take effect on his death and that it is always recoverable before his death.

4.     Secondly, the testator must have the capacity to understand the extent of the property of which he/she is disposing.

5.     Lastly, the testator must be able to comprehend and appreciate the claims to which he/she ought to give effect.  In other words, the testator must have memory to recall the persons who may befitting beneficiaries and an understanding to comprehend their relationship to him and their claims upon him so that he can decide whether or not to give each of them any part of his property by his will.

6.     To conclude, in the event where the testator lacks the testamentary capacity to create a will, the will can be challenged and accordingly be declared invalid.