KEK SIONG UTEH v AW SIEW KEON [2016] MLJU 57

Court of Appeal (Putrajaya)

Validity of The Will

1.    Ho Teng Sett (“the Deceased”) passed away at the age of 80 on 22.11.2009 while his first wife, Tang Gek Ying had died on 31.12.1983.

2.    Aw Siew Keon, one of the Deceased’s seven children, is the Respondent.

3.    The Deceased incorporated Syarikat Tung Guan, in 1981, with the Deceased and the Respondent as founding directors and shareholders.

4.    Kek Siong Uteh, an Indonesian citizen of Chinese descent, is the Appellant, and she was married to the Deceased on 08.05.2003 as the Deceased’s second wife.

5.    The children were unaware of their father’s remarriage and believed that the Appellant was merely his mistress.

6.    On 31.07.2007, the Deceased suffered a stroke, which led to memory impairment and behavioral changes.

7.    The Appellant thereafter began behaving as if she owned the company, causing conflicts with the Respondent and his siblings (“the Children”).  On 3.09.2008, the Children discovered the marriage between the Deceased and the Appellant.

8.    On 22.11.2008, the Appellant took the Deceased away, and the Children didn’t see him again until his death a year later.

9.    The Children reported the disappearance to the police, and the Deceased’s finances were significantly depleted during his absence.

10.  The Children accused the Appellant of overspending, which was uncharacteristic of their thrifty father.  The Appellant denied manipulating the Deceased.

11.  After the Deceased’s death, two wills were found; one dated 04.01.1999 and another on 09.12.2008, which is disputed (“the Impugned Will”)

12.  The Impugned Will left 180,000 shares in Tung Guan Oil Mill to the Appellant and accused the Children of disloyalty.

13.  The Children questioned the Impugned Will due to their long history of contributions to the family business and the Deceased’s compromised mental state.

14.  The Respondent filed a caveat on 09.06.2011 and initiated legal action by filing a writ of summons on 02.05.2012.

1.    Whether the Impugned Will allegedly made by the Deceased who died on 22.11.2009, is valid under the law?

1.    Before the validity of the will was discussed, it is pertinent for the Court of Appeal to determine the burden of proof of testamentary capacity.

2.    The Court of Appeal referred to the case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 30 where the presiding Judge held-

“As regards the burden of proof, the Court of Appeal quite rightly stated the settled law ie, that where the validity of a will was challenged, the burden of proving testamentary capacity and due execution lay on the propounder of the will as well as dispelling any suspicious circumstances surrounding the making of the will; that the onus of establishing any extraneous vitiating element such as undue influence, fraud or forgery lay with those who challenged the will.”

                                                               [Emphasis Added]

3.    The case of Yow Pew & Anor v Chua Kooi Hean [2002] 4 CLJ 90 also had been referred where it was held as follows:

“It is clear from the foregoing passages, in particular from the passages in Theobald on Wills that suspicious circumstances in the context of wills relate to circumstances surrounding the making of the will, not circumstances surrounding the testamentary capacity of the testator. In other word, if the propounder of a will wishes to succeed in obtaining probate, he must upon challenge being taken establish (a) testamentary capacity and (b) dispel any suspicious circumstances surrounding the making of the will.”

                                                               [Emphasis Added]

4.    From the aforementioned authorities, the Appellant has to prove that the Deceased was mentally fit and that the Impugned Will was made properly while addressing any doubts or suspicious circumstances surrounding the creation of the Impugned Will. Meanwhile, the Respondent must show any extraneous vitiating elements that could invalidate the Impugned Will.

5.    In the present case, the Court of Appeal carefully considered all the evidence, particularly Dr. Goh’s testimony, which revealed that the Deceased had suffered stroke, resulting in weakness in his left limbs and severe memory problems. These issues made the Deceased became very forgetful and unable to focus, strongly indicating that he had dementia at the time when the Impugned Will was drafted.

6.    It was firmly established by the trial judge which later affirmed by the Court of Appeal that the Appellant failed to provide any evidence to dispute Dr. Goh’s testimony.  Since Dr. Goh had treated the Deceased and offered his professional insights, there was no valid reason to question the credibility of his statements. Taken together, the presence of dementia and physical weakness strongly suggests that the Deceased has lacked of mental competence/compos mentis when the Impugned Will was created.

7.    The Court of Appeal also found that there were suspicious circumstances surrounding the Impugned Will.  There were sufficient evidences that collectively cast doubt on the validity of the Impugned Will-

(a)  The Appellant was introduced to the solicitor Mr. Manian K Marappan by Daniel Tan, who said they could create the Impugned Will;

(b) The Appellant’s testimony about the will was odd and evasive. She claimed not to know and disagreed when asked if the Deceased was under her control.  She also denied seeing the Impugned Will;

(c)  Mr. Manian K Marappan represented the Appellant in the probate petition, so she must have known about the Impugned Will.

(d) There were recorded conversations where the Appellant expressed concerns about the Deceased’s will.  She worried the Deceased’s daughter might prevent her from convincing the Deceased to make a new will in her favor.

(e)  A lawyer, Ms. Ang Hui Sin, testified that the Appellant brought the Deceased to her to make a will, with the Appellant as the sole beneficiary, excluding the Deceased’s children.

(f)   There were inconsistencies in the solicitor’s testimony about the date of the will’s execution.  This casted doubt on when and how it was made.  The burden of proof is on the Appellant, and the date of execution remains disputed.

(g) The solicitor claimed that the Deceased visited his office twice, unassisted, but medical evidence contradicted this, suggesting the Deceased had health issues and memory problems, making it hard to believe the solicitor’s account.

8.    The Court of Appeal ruled that the Impugned Will as invalid because it was found that the Deceased lacked testamentary capacity to create a will, and there was substantial evidence suggesting suspicious circumstances surrounding the creation of the Impugned Will.

1.    The Impugned Will allegedly made by the Deceased was invalid under the law.

2.    The appeal was dismissed by the Court.

 In cases involving wills, it’s crucial to consider both the mental capacity of the individual creating the will and any suspicious circumstances surrounding its making.   When doubts exist about the person’s mental competence and when questionable situations arise, it can cast uncertainty on the validity of the will.