Manogaran A/L Singraveloo v Amanah Raya Berhad (P-02(NCvC)(W)-503-03/2024)

SOOSILA A/P SINGARAVELOO ... APPELLANTS

MOHD SHAN BIN ABDULLAH ... RESPONDENTS CORAM: LIM CHONG FONG, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA EVROL MARIETTE PETERS, JCA GROUNDS OF JUDGMENT (Dissenting) 03/07/2026 20:15:03 Kand. 57 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 2 Introduction [1] This is an appeal against the decision of the learned Judicial Commissioner, in dismissing the Appellants' claim challenging the validity of a will dated 2 June 2011 and allowing the counterclaim of the Second Respondent in giving validity to such will. Factual background [2] This case was, in essence, a classic tale of two wills. The earlier will reflected equality and inclusion, providing for all the children of the deceased. In stark contrast, the later will embodied total exclusion, bequeathing the entirety of the estate to a single son. [3] The Appellants contended that the later will was tainted by undue influence, lack of testamentary capacity, and suspicious circumstances surrounding its execution. The Respondents, on the other hand, maintained that the later will represented the deceased’s conscious and voluntary decision to alter her testamentary intentions after some 35 years, a decision the deceased was fully entitled to make. [4] At the heart of this dispute, therefore, lay two fundamentally conflicting narratives embodied in two very different wills. [5] The deceased, Subbamah a/p Munusamy (“the Deceased”), passed away on 19 May 2013 at the age of 82, leaving behind ten surviving children. The Appellants are four of her children, while the Second Respondent is another son. The dispute concerned two testamentary instruments that stand in stark opposition to one 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 3 another, each telling a very different story of the Deceased's final wishes. [6] The first will, dated 24 April 1976 (“the 1976 Will”), was said to have been prepared by a private law firm, Messrs Subbiah & Co. It was allegedly prepared by a lawyer, T. Subbiah, and witnessed by his clerk, one Wazir Singh a/l Bishan Singh (“SP4”). Under the terms of the 1976 Will, the Deceased had divided her estate equally among all her children. [7] The original of the 1976 Will was allegedly kept by the law firm and was produced in High Court many years later by the lawyer's son, one Thevarayan a/l Subbiah (“SP7”), who testified that his father was a Tamil-speaking lawyer who took instructions from the Deceased directly in the Tamil language. [8] The second will, dated 2 June 2011 (“the 2011 Will”), presented a different picture. It was prepared by the First Respondent, Amanah Raya Berhad, a government-owned trustee company, and witnessed by two officers of the First Respondent, SD1 and SD2. The First Respondent was named as the executor of the 2011 Will. [9]

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forests & Anor v Mau Kam Tong & Mau Kim Siong (the executors of the estate of Mau Ming, deceased) & Anor and another appeal [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Bros Sdn Bhd v Metro Charm Sdn Bhd [2009] 6 MLJ 1); 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 7

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin (P) & Anor v

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin bin Raja Ahmad Terzali & Ors v Sri

where the trial judge was plainly wrong in arriving at his decision see Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin & Anor [2003] 2 MLJ 97); 772 Malayan Law Journal [2017] 3 MLJ;

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v Wang Yew Logging & Plantation Sdn Bhd [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v Choo Kok Hoe & Ors [1984] 2

where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149). [Emphasis added.] [23] The circumstances warranting appellate intervention were succinctly encapsulated by Mc Elwaine CJ in Woon Ngee Yew and Others v. Ng Yoon Thai and Others, in the following oft-cited passage: An Appellate Court should be very loath to differ on a finding of fact by a Court which has seen and heard the witnesses but if the learned Judge can be shown to have misdirected himself on the evidence, or to have rejected evidence for a wrong reason or to have drawn an inference from evidence which was equally capable of supporting a different inference it may be the duty of an Appellate Court to interfere. 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 8 [Emphasis added.] Whether Judicial Commissioner erred in finding no suspicious circumstances surrounding execution of the 2011 Will [24] In a dispute between two wills, the propounder of the later will bears the initial and primary burden of proving its validity, including due execution, testamentary capacity, and the testator’s knowledge and approval of its contents. If suspicious circumstances surrounding such will are raised, it is for the propounder to affirmatively dispel that suspicion with positive evidence. [25] Only if the later will is found to be invalid would the court then proceed to consider the earlier will, the validity of which must in turn be established by its propounder. [26] With regard to the 2011 Will, the Appellants raised the following suspicious circumstances. [27] Preparation of the will – The Appellants contended that the fact that the Second Respondent had personally completed the preliminary administrative form for the Deceased at the premises of the First Respondent constituted a suspicious circumstance, which had cast doubt on the validity of the 2011 Will. [28] We were unable to agree with the Appellants’ contention. In our view, the Second Respondent was merely assisting his elderly mother with an administrative matter and was not directing or controlling the Deceased’s testamentary intentions. [29] The Deceased was 80 years old when the 2011 Will was prepared, and had recently undergone two cataract operations some time in 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 9

In those circumstances, it was entirely natural and unsurprising that she would rely on one of her children to assist in completing a preliminary administrative form provided by the First Respondent. Importantly, the preliminary administrative form itself was not the testamentary instrument, but merely the initial information-gathering form to be completed by an applicant before the file is formally opened by the First Respondent. [30] The evidence further showed that the actual 2011 Will was prepared separately by SD1 and SD2. These witnesses, who were officers of the First Respondent, testified that they had personally explained the contents of the 2011 Will to the Deceased in Bahasa Malaysia, that she understood and accepted its terms, and that she voluntarily executed the will in their presence. The evidence of SD1 and SD2 had established that the Deceased had known and approved of the contents of the 2011 Will at the time of its execution. [31] The learned Judicial Commissioner further observed that the Appellants had failed to adduce any evidence that the Second Respondent had coerced, threatened, pressured, or manipulated the Deceased into executing the 2011 Will. I had to agree with such observation as mere presence or assistance, without more, could not amount to undue influence. Indeed, even assuming for the sake of argument that some form of coercion had existed, which, in my view, it plainly had not, the Deceased would have had ample opportunity between the execution of the 2011 Will and her passing in 2013 to revoke the 2011 will, lodge a complaint, or confide in her other children. Significantly, she did none of these things. 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 10 [32] In my view, the law should be slow to characterise ordinary acts of filial devotion and assistance as suspicious in the absence of independent evidence pointing towards undue influence, impropriety, or fraud. To do so would unfairly penalise devoted children who care for their ageing parents, and would even discourage families from providing the very support that elderly persons naturally require. [33] Against the backdrop of the evidence as a whole, the mere fact that the Second Respondent had assisted the Deceased in filling out a preliminary administrative form did not invalidate the 2011 Will, nor did it give rise to any reasonable inference of undue influence. The learned Judicial Commissioner was, therefore, correct in so finding. [34] I was also of the view that the learned Judicial Commissioner was correct in his evaluation of the evidence of SD1 and SD2. They were impartial witnesses with no personal interest in the outcome of the dispute and were themselves not beneficiaries under the 2011 Will. Their evidence showed that they had adhered to strict standard operating procedures specifically designed to safeguard testators against coercion, manipulation, or deception. Their independent verification provided compelling and objective evidence that the Deceased had fully understood, approved, and voluntarily executed the 2011 Will, irrespective of who had completed the preliminary administrative form. [35] In any event, the maxim omnia praesumuntur rite esse acta (that all acts are presumed to have been rightly and regularly performed) which finds statutory expression in section 114(e) of the Evidence Act 1950 (“Evidence Act”), operates in the present case. 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 11 Accordingly, the acts of SD1 and SD2, as officers of the First Respondent, a wholly Government-owned entity, are presumed to have been regularly and properly carried out unless the contrary is shown. Section 114(e) of the Evidence Act reads: Section 114 – Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:- …

that judicial and official acts have been regularly performed; [Emphasis added.] [36] Language of the will – The Appellants contended that the issue of language lay at the heart of the validity of the 2011 Will. Their case was that the Deceased understood only Tamil and did not possess sufficient proficiency in either English or Bahasa Malaysia. Since the 2011 Will was drafted in English, they argued that the Deceased could not have understood its contents and that the Will was, therefore, invalid. [37] I was unable to accept this contention. The learned Judicial Commissioner found, on the evidence, that the Deceased understood both English and Bahasa Malaysia. In arriving at this conclusion, his Lordship had placed considerable reliance on the 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 12 testimony of SD5, the Deceased's daughter-in-law, and SP8, the Deceased's daughter. [38] Significantly, SP8, who was also the Third Appellant, testified that the Deceased was able to understand and speak both English and Bahasa Malaysia. Such evidence alone had substantially undermined the Appellants' central assertion that the Deceased understood only Tamil. The assessment of witness credibility lies quintessentially within the province of the trial judge, who enjoys the distinct advantage of seeing and hearing the witnesses testify. I, therefore, saw no basis to conclude that the learned Judicial Commissioner was plainly wrong in his assessment. [39] The surrounding circumstances further supported this finding. The Deceased had consistently signed her name using the Roman alphabet rather than Tamil script. There was also evidence, as correctly observed by the learned Judicial Commissioner, that the Deceased had basic literacy of English, which demonstrated a familiarity with, and ability to recognise and use, English letters. [40] I also found persuasive the learned Judicial Commissioner's observation that both the 1976 Will and the 2011 Will were drafted and executed in English. The Deceased executed both testamentary instruments without insisting upon a Tamil translation. This was a compelling indication that she possessed sufficient understanding of English to comprehend the contents of those documents without the need for translation. [41] Faced with this difficulty, the Appellants sought to rely on two documents executed in 2010, namely the Conditional Option to 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 13 Purchase (“Option to Purchase”) dated 26 May 2010 and the Power of Attorney dated 31 May 2010. The former concerned the sale of the family home by the Deceased to the Second Respondent, whilst the latter was executed by the Deceased in favour of the Second Respondent. [42] The Appellants emphasised that both documents contained jurats stating that their contents had been translated into Tamil for the Deceased. From this, they argued that the Deceased required all English legal documents to be translated into Tamil before she could execute them. Accordingly, they submitted that the absence of a similar jurat in the 2011 Will demonstrated that such will had not been translated into Tamil and that the Deceased, therefore, could not have understood its contents. [43] In my view, that submission was unsustainable. The mere presence of a jurat in a particular document does not establish a lifelong inability to understand English. A translation may have been provided for any number of reasons, including convenience, caution, personal preference, or simply because it was offered by the solicitor concerned. The fact that a translation was provided on one occasion does not inexorably lead to the conclusion that it was necessary on every occasion. [44] Furthermore, the documentary evidence was not consistent with the Appellants' theory. Whilst the Option to Purchase and the Power of Attorney contained jurats, both the 1976 Will and the 2011 Will did not. The absence of a jurat in the 2011 Will, therefore, did not compel the inference that the Deceased failed to understand its contents. To conclude otherwise would be to elevate what may have been a 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 14 matter of preference or convenience into a legal presumption, a step that the law neither requires nor permits. [45] I, therefore, agreed with the learned Judicial Commissioner that the use of Tamil-speaking lawyers in relation to certain transactions was more likely a matter of comfort than necessity. It did not establish that the Deceased was incapable of understanding either English or Bahasa Malaysia. [46] In the final analysis, I was unable to accept the Appellants’ contention that the absence of a Tamil translation gave rise to any suspicious circumstances surrounding the execution of the 2011 Will. Even if some suspicion could arguably arise, I was satisfied that the evidence adduced by SD1, SD2, and the Second Respondent was more than sufficient to dispel it. [47] Late emergence of the 2011 Will – The Appellants argued that the 2011 Will was suspicious because it emerged only in 2018, five years after the Deceased's death. [48] I found this contention untenable as it had overlooked a critical and inconvenient fact, that is, that the 1976 Will, which the Appellants championed as the true and valid will, had emerged even later. It was not produced until December 2019, more than six years after the Deceased had passed away, and approximately one year after the 2011 Will had already been placed before the High Court. [49] Moreover, the provenance of the 1976 Will is telling. It was neither found among the Deceased's own documents nor unearthed through any diligent search by the Appellants. Rather, it was 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 15 produced by Poornachandran, a son of the Deceased who, conspicuously, was never called to give evidence. [50] The circumstances surrounding the emergence of the 1976 Will were deeply mysterious. For more than four decades, the document lay hidden, shielded away in the private custody of Poornachandran, and the law firm that drafted it. Not once during her lifetime did the Deceased ever mention it, produce it, refer to it, or act upon it. After her death in 2013, the 1976 Will remained buried for over six years, silent and unseen. It surfaced only in December 2019, after the Appellants had filed their civil suit challenging the 2011 Will — emerging, as if by design, at a moment when it could be used to attack the later will. [51] No witness stepped forward to explain why the 1976 Will had been concealed for so long. The lawyer who allegedly prepared it was never called to verify its authenticity. The learned Judicial Commissioner was left with no first-hand account of its creation, no explanation of its contents, and no assurance that the Deceased ever knew of its existence after 1976. The 1976 Will simply appeared, out of the shadows, at a convenient moment, with no one to vouch for its legitimacy. In my view, a will that emerges under such mysterious circumstances, without a single witness to explain its long concealment, must be viewed with the deepest suspicion. [52] Yet the Appellants did not apply the same standard to the 1976 Will. They accepted it without question, despite its later emergence, because it benefitted them. This selective scrutiny, in my view, revealed the true nature of the Appellants' challenge, which was not 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 16 about suspicious circumstances, but about dissatisfaction with the outcome. [53] In my view, a party cannot argue that a will is suspicious for emerging five years after death while simultaneously embracing another will that emerged six years after death. The late emergence of a will, without more, proves nothing. In my view, the Appellants could not have it both ways. They could not condemn the 2011 Will for lateness while celebrating the 1976 Will that was even later. This inconsistency alone undermined their claim that late emergence amounted to a suspicious circumstance justifying the invalidation of the 2011 Will. [54] In any event, a will does not become invalid simply because it is produced later in time, nor does a delay in production automatically give rise to an inference of fraud or undue influence. There are many entirely innocent reasons why a will may surface only after proceedings have commenced. In this case, the Deceased had named the First Respondent as the executor of the 2011 Will. Upon her death, the 2011 Will was kept safely in the custody of the First Respondent, as was its standard practice. [55] The Second Respondent did not immediately apply for a Grant of Probate, and he was under no legal obligation to do so. There is no statutory time limit within which a beneficiary must produce a will or apply for probate. In my view, the Second Respondent’s failure to proactively produce the 2011 Will in the five years following the Deceased’s death did not, without more, establish that he was concealing it or that the Will was forged. In any event, since the Power of Attorney was already in his favour, the existence of the 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 17 2011 Will may not have materially affected the Second Respondent’s position. [56] To the contrary, as soon as the Appellants filed their application for Letters of Administration in 2018, the Second Respondent promptly procured a copy of the 2011 Will from the First Respondent and produced it to the High Court. This timely production in response to legal proceedings was hardly the conduct of someone attempting to conceal a fraudulent document. [57] Furthermore, the Appellants themselves admitted that they had never asked the Second Respondent about the existence of a will until 2016, three years after the Deceased's death. Their letter to the Second Respondent inquired whether he had a copy of a will, but the failure by the Second Respondent to respond, while perhaps discourteous, did not amount to evidence of forgery. [58] In any event, there is no legal requirement that a beneficiary must respond to inquiries from other family members. The Appellants also had the means to discover the 2011 Will themselves. They could have conducted a search with the First Respondent or with the relevant probate registry at any time. They did not. The 2011 Will was properly registered and kept in the custody of a statutory body, namely, the First Respondent. Its whereabouts were not secret. The fact that the Appellants only discovered it after filing the application for Letters of Administration reflected their own failure to inquire earlier, and not any wrongdoing on the Second Respondent’s part. [59] Ultimately, the critical question was not when the 2011 Will emerged, but whether it was validly executed by the Deceased of sound mind 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 18 who knew and approved its contents. The timing of production goes to the weight of evidence, not to the validity of the 2011 Will itself. In the absence of any evidence that the Second Respondent had intentionally concealed the 2011 Will to perpetrate a fraud, the mere fact of late emergence was not suspicious and certainly not sufficient, standing alone, to invalidate an otherwise properly executed will. To hold otherwise would create a dangerous precedent that any will produced after a delay would be vulnerable to challenge, regardless of its substantive validity, and diligent beneficiaries who do not immediately apply for probate would be penalised. [60] Testamentary capacity – The Appellants contended that the Deceased had lacked the mental capacity to reflect her true intention in the 2011 Will. They further submitted that the burden of proving testamentary capacity rested squarely on the Respondents, relying on the cases of Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] 5 MLJ 891 and Gan Yook Chin v Lee Ing Ching [2004] 4 CLJ 309. [61] In support of their contention, the Appellants pointed to the Deceased's age of 80 at the material time, and the fact that she had undergone two cataract surgeries in 2010, just months before the execution of the 2011 Will, as factors sufficient to trigger the issue of testamentary capacity. [62] Although it is trite law as expounded in the cases of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97, Sarah Abdullah v Kwok Peck Wah & Anor [2010] 1 CLJ 706, and Tob Weng Keong & Anor v Tob Chee Hoong [2019] 10 CLJ 15, that the burden lies on the Respondents, as the propounders of the 2011 Will, to establish 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 19 the Deceased's testamentary capacity, such proof may be adduced through oral evidence, conduct of the Deceased, and surrounding circumstances of the case. The law does not require medical evidence to be produced in every case. Direct testimony from independent witnesses who observed the Deceased at the time of execution of the 2011 Will may be sufficient. [63] It was also crucial to note that the authorities relied upon by the Appellants were, in my view, distinguishable on their facts and, therefore, did not assist their case. [64] In Kong Kin Lay & Ors v Kong Kin Siong & Ors, the Court of Appeal invalidated the will having regard to the very specific circumstances of the testator, who was 97 years old at the material time, illiterate, and wheelchair-bound. These factors, taken together, raised serious and objective doubts as to whether the testator had the requisite testamentary capacity at the time the will was executed. The court further noted the absence of any medical evidence confirming capacity, which was particularly significant, given the testator’s extreme age and physical frailty. In those specific circumstances, the propounders had failed to dispel the suspicious circumstances surrounding the execution of the will. [65] Similarly, in Gan Yook Chin v Lee Ing Ching, the court was concerned with a testator who was in a seriously debilitated condition, suffering from cancer and in a clearly failing state of health. The evidence indicated significant physical and mental weakness, which in turn gave rise to legitimate concerns regarding his testamentary capacity. The court’s conclusion was driven by the cumulative effect of the testator’s medical condition and the 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 20 surrounding circumstances, which were materially different from the present case. [66] Accordingly, both cases were decided on their own particular factual matrices involving serious infirmity and clear evidential concerns as to testamentary capacity of the testator, and were, therefore, not comparable to the present facts. [67] In the present case, all that the Appellants could point to were the Deceased's age of 80 and her two cataract surgeries. [68] In my view, the Appellants' argument was perilously close to inviting the court to presume incapacity from age alone. Such a proposition borders on ageism, in that it assumes, without evidential foundation, that advanced age is synonymous with cognitive decline. The law has never recognised such a presumption. The fact that the Deceased had undergone cataract surgeries did not advance the Appellants' case; those procedures were undertaken to improve her vision and, if anything, demonstrated a continuing concern for her independence and quality of life. The law recognises that elderly persons may retain full testamentary capacity notwithstanding their advanced years. To accept the Appellants' contention would be to undermine testamentary freedom by effectively subjecting it to an unwarranted age-based qualification. [69] Having considered the evidence before me, including the testimony SD1 and SD2, who had personally interacted with the Deceased at the time of execution and confirmed her alertness, understanding, and voluntary consent, I was of the view that the learned Judicial Commissioner was correct in holding that the Deceased possessed 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 21 the requisite testamentary capacity at the time of the execution of the 2011 Will. [70] Accordingly, I found that the challenge by the Appellants to the Deceased's testamentary capacity had no basis. [71] Radical departure from the 1976 Will – In an effort to establish the existence of suspicious circumstances surrounding the execution of the 2011 Will, the Appellants contended that it represented a marked and inexplicable departure from the Deceased's earlier testamentary intentions as reflected in the 1976 Will. They emphasised that under the 1976 Will, the Deceased had elected to distribute her estate equally among all her children, whereas under the 2011 Will, she bequeathed the entirety of her estate to the Second Respondent. According to the Appellants, such a dramatic shift in the disposition of her assets was inherently suspicious and called for closer scrutiny by the Court. [72] The Appellants also relied on the fact that, in 2010, the Deceased had granted the Option to Purchase to the Second Respondent, whereas in 2011, she had instead bequeathed the property to the Second Respondent at no cost and, in doing so, excluded her other nine children. This, the Appellants argued, was an abrupt and unexplained change in stance which was said to be suggestive of undue influence or a lack of testamentary capacity. [73] I found this contention to be unacceptable as it was my view that the Deceased had an absolute and undisputed legal right to change her will at any time during her lifetime. Such right is fundamental to the law of succession. The 1976 Will was not a binding contract between 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 22 the Deceased and her children, nor was it an irrevocable promise incapable of change. It was a testamentary instrument expressing the Deceased’s intentions as to the distribution of her estate upon her death. As such, the Deceased remained at liberty, at any time during her lifetime, to revoke, alter, or replace the 1976 Will entirely, whether for good reason, bad reason, or no reason at all. [74] The 1976 Will, therefore, was not cast in stone, but was merely a snapshot of her intentions at that moment in time, when the Deceased was younger, when her family circumstances were different, and when her relationship with her children may have been different. As the Deceased had aged, as her needs changed, and as she observed which child stood by her and which children did not, she was entitled to reconsider her earlier decision. [75] Hence, the fact that the 2011 Will represented a radical departure from the 1976 Will, leaving everything to one child instead of dividing equally among all, did not, by itself, render the later will invalid. [76] In my view, the same principle applied equally to the Option to Purchase. There was nothing legally objectionable in the Deceased having changed her mind between 2010, when the Option to Purchase was executed, and 2011, when the 2011 Will was made. Mere change in intention within that relatively short period did not, without more, give rise to any inference of impropriety or lack of capacity. On the contrary, it was entirely consistent with the freedom of the Deceased to revise her decisions and dispositions, and in the present case there was no evidential basis to suggest that such change was anything other than a valid exercise of that freedom. 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 23 [77] At this point, it was crucial to emphasise that the law does not require fairness. It does not require equality. It does not require a testator to justify her reasons for excluding certain children. A testator may disinherit a child entirely. She may favour one child over others. She may leave her entire estate to a stranger, or to charity, and exclude all her family members. The law permits this because the right to dispose of one's property by will is a fundamental incident of ownership. [78] In short, the Deceased did not require a good reason to change her will. Nor did she need a reason that satisfied, or was capable of satisfying, her other children. The Court's role was not to ensure a fair distribution of the estate amongst disappointed beneficiaries, nor was it to intervene simply because some children may have received less than they expected or nothing at all. The relevant inquiry was a far narrower one: whether the Deceased possessed the requisite testamentary capacity, understood the nature and effect of the dispositions she was making, and acted of her own free will. The evidence demonstrated that she did. Her decision may well have been perceived as unfair by the Appellants, who stood to benefit under the 1976 Will but not under the later one. However, unfairness is not synonymous with invalidity. The law protects a testator's freedom to dispose of her property as she sees fit, whether her choices are regarded by others as fair, unwise, generous, or otherwise. 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 24 Whether Judicial Commissioner erred in finding that the 2011 Will was not forged [79] Genuineness of signature – The Appellants alleged that the Deceased’s signature on the 2011 Will had been forged and sought to support this allegation through the evidence of SP3, the Appellants’ forensic handwriting expert (“the Expert”). [80] The admissibility of the evidence of the Expert is provided in section 45 of the Evidence Act, which reads: Section 45 – Opinion of experts

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts. [Emphasis added.] [81] It is trite law, as consistently affirmed in a line of authorities including Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241, that the burden of proving forgery lies squarely on the party who asserts it. In the present case, the Appellants bore that burden. This principle is embodied in section 103 of the Evidence Act, which reads: Section 103 – Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. [Emphasis added.] 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 25 [82] At this juncture, it was important to bear in mind that expert opinion on handwriting and signatures, however skilled the expert, remains no more than an opinion. It is not an exact science capable of yielding absolute certainty. As has been repeatedly emphasised in numerous authorities, including Mohamed Kassim bin Yatim v PP [1977] 1 MLJ 64, such evidence must, therefore, be approached with caution and weighed against the totality of the surrounding evidence, rather than treated as determinative on its own. [83] Furthermore, the Expert was unpersuasive and unconvincing for the following reasons. [84] First, the Expert candidly admitted that the methodology employed by him to determine whether the Deceased’s signature was forged was “outdated”. [85] Secondly, the Expert had relied on only four specimen signatures, three of which were mere photocopies and only one was an original document. This fell drastically short of the Jabatan Kimia Malaysia guidelines, which require at least 20 contemporaneous specimens for a proper forensic analysis. It was highlighted by the Second Respondent that in other cases where the Expert had testified, he had used between 17 and 34 specimens, yet in the present case, he used only four, revealing a serious and unexplained inconsistency in his approach. [86] Thirdly, the Expert’s opinion was founded predominantly on photocopied documents rather than original instruments. It was rightly highlighted that, in an earlier case, the Expert himself had accepted that where only photocopies are available, any opinion 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 26 must necessarily be preliminary in nature, given that the examination of originals is essential for assessing critical indicia such as pen pressure, stroke dynamics, and ink flow. Notwithstanding this, a “conclusive” report was issued in the present case on the basis of largely photocopied material. In my view, this departure from his own acknowledged methodological limitations constitutes a serious flaw which materially undermines the reliability and weight to be attached to his opinion. [87] Fourthly, the Expert had failed to account for age-related variation in the Deceased's signature. The Deceased was 80 years old when she executed the 2011 Will, while the earliest specimen dated back to 1976, which was a gap of 35 years. In my view, it was illogical and unreasonable to expect an elderly person's signature to perfectly resemble one made decades earlier. Although the Expert had conceded, during cross-examination, that signatures may vary due to time, age, and health, his report failed to analyse or account for these factors at all. [88] In light of all these deficiencies, the learned Judicial Commissioner was correct to have concluded that the Expert’s report lacked both methodological rigour and probative value. [89] More importantly, while expert opinion evidence may be of assistance to the court, it was in no way conclusive and did not bind the Court. The Court remained fully entitled, and indeed duty-bound, to assess and evaluate such evidence in the context of the totality of the evidence adduced, and to determine what weight, if any, ought properly to be attached to it. As recognised in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor and affirmed by the 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 27 Federal Court, where there exists a sharp conflict between, on one hand, the direct evidence of credible and disinterested witnesses who were present at and witnessed the execution of a document and, on the other, the opinion of a handwriting expert, the court is generally slow to prefer the latter. This is because expert opinion is ultimately advisory in nature, whereas direct factual testimony from witnesses of fact, particularly those who observed the execution itself, ordinarily carries greater evidential weight. In such circumstances, the safer and more principled course was to prefer the direct evidence unless there were compelling reasons to displace it. [90] The rationale for this principle was articulated in Newton v Ricketts [1861] 11 ER 731, where the Court drew a clear distinction between the direct evidence of a witness who has actually observed the execution of a signature, and the more inferential nature of handwriting analysis. The former constitutes direct factual testimony grounded in perception, whereas the latter is, by its very nature, opinion evidence based on comparison and inference. As such, it is empirical, potentially fallible, and must therefore be approached with appropriate caution and evaluated in light of the surrounding evidence. [91] Furthermore, pursuant to section 68 of the Evidence Act, where a document is required by law to be attested, the primary evidence of its execution is the testimony of the attesting witnesses themselves. Section 68 of the Evidence Act reads: 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 28 Section 68 – Proof of execution of document required by law to be attested If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence. [Emphasis added.] [92] In the present case, SD1 and SD2 testified that they had personally witnessed the Deceased execute the 2011 Will in their presence, after confirming that the Deceased had understood and approved its contents. The learned Judicial Commissioner had found both SD1 and SD2 to be independent, disinterested, and credible, with no discernible motive to fabricate their evidence. Their testimony also satisfied the statutory requirement under section 68 of the Evidence Act. [93] Accordingly, I found that the learned Judicial Commissioner had correctly applied the established principle that, where there was a direct conflict between the testimony of disinterested witnesses to execution and the opinion of a handwriting expert, the safer and more reliable course is to prefer the direct evidence. [94] In the circumstances, I was of the view that the Appellants had failed to discharge their burden of proving forgery and that the learned Judicial Commissioner was correct in holding that the signature on the 2011 Will was genuine. 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 29 Concluding remarks [95] In this case, the learned Judicial Commissioner had the opportunity to observe all witnesses who had testified at the trial. His Lordship had assessed their demeanour, their consistency, their responsiveness to cross-examination, and their overall credibility. He was entitled to prefer the direct testimony of SD1 and SD2 over the Expert, and to reject the Appellants' allegations of undue influence and forgery, because he had seen and heard the witnesses and made credibility judgments that no appellate court can replicate based on the appeal records alone. [96] I also took note of the learned Judicial Commissioner’s findings in relation to the 1976 Will. It was observed, first, that SP4, one of the attesting witnesses, conceded under oath that he did not understand the Tamil language. In my view, this admission properly gave rise to a legitimate concern as to his ability to meaningfully attest to the execution of the Will by the Deceased, particularly in circumstances where the Appellants themselves contended that Tamil was her sole language. A witness who is unable to comprehend the language spoken by the testator would be ill-equipped to verify that the testator understood the contents and effect of the document being executed. The learned Judicial Commissioner was therefore entitled, and in my view correct, to treat this as a material infirmity in the Appellants’ case. [97] Secondly, the learned Judicial Commissioner had observed that the Tamil-speaking lawyer who allegedly prepared the 1976 Will was not called to testify, and no explanation was offered for this omission. Similarly, Poornachandran, was also not called as a witness. In my 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 30 judgment, these were material witnesses whose evidence was crucial to establishing the due execution and validity of the 1976 Will. Their absence from the witness box spoke volumes. [98] In light of these failures, the learned Judicial Commissioner drew an adverse inference against the Appellants pursuant to section 114(g) of the Evidence Act. I found no error in this approach. It is a well-established principle of evidence that where a party fails to call a material witness who is within their power to produce, and whose evidence would have been relevant and important, the court is entitled to presume that such evidence, if called, would have been unfavourable to that party's case. [99] Having found the 2011 Will to be valid, it was unnecessary for the learned Judicial Commissioner to embark upon a separate determination of the validity of the 1976 Will on its own merits, as the earlier will would, in any event, be superseded. Nevertheless, in my view, his Lordship’s observations as to the deficiencies in the Appellants’ proof of the 1976 Will would serve to reinforce and fortify his Lordship’s ultimate conclusion that the 2011 Will represented the operative testamentary instrument and must therefore prevail. [100] In gist, it was my view that the Appellants’ dissatisfaction stemmed principally from the outcome of the 2011 Will, and that the Suit was, in substance, driven by their discontent with its distribution rather than by any credible evidence impugning its validity. [101] After careful and comprehensive consideration of the evidence before this Court, the submissions advanced by the respective parties, and the Grounds of Judgment of the learned Judicial 24 June 2026 ----------------------------------------------------------------------------------------------------------------------------------- 31 Commissioner, it was my view that his Lordship had correctly found that the 2011 Will was valid and represented the Deceased’s last valid testamentary instrument. As such, I was of the view that this Appeal should be dismissed. Dated: 24 June 2026 ………….…SIGNED…………… (EVROL MARIETTE PETERS) Judge of the Court of Appeal Malaysia Counsel: For the Appellants – Karin Lim Ai Ching, A. Suppiah, Fatin Maisarah Mohd Hisham; Messrs Presgrave & Matthews For the First Respondent – Habib Rahman, Muhammad Hafiz Tajuddin; Messrs Ezrilaw Firm For the Second Respondent – Razeena Rahumatullah, Aznil Abdul Majid; Messrs Aznil, Naziah, Juli & Praba