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

MOHD SHAN BIN ABDULLAH RESPONDENTS (IN THE HIGH COURT OF MALAYA IN PULAU PINANG IN THE STATE OF PULAU PINANG, MALAYSIA SIVIL SUIT NO: PA-22NCVC-157-10/2018 BETWEEN 1 MANOGARAN A/L SINGRAVELOO 2 KAMALAVANI A/P SINGARAVELLU 3 RATHA SINGARAVELOO JOSEPH 4 SOOSILA A/P SINGARAVELOO PLAINTIFFS 1 AMANAH RAYA BERHAD

MOHD SHAN BIN ABDULLAH DEFENDANTS) CORUM: LIM CHONG FOONG, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA EVROL MARIETTE PETERS, JCA 02/07/2026 16:57:16 P-02(NCvC)(W)-503-03/2024 Kand. 56 P-02(NCVC)(W)-503-03/2024 2

(A) INTRODUCTION [1] This appeal centres on a grievance by the appellants against the decision by the learned Judicial Commissioner (‘JC’) in finding in favour of the respondents on the validity of a will dated 02.06.2011 (‘the 2011 Will’) supposedly left by their mother, Madam Subbamah a/p Munusamy (‘the deceased’). [2] There are two Wills that are the subject matter of dispute between the parties:

A 24.04.1976 Will (‘1976 Will’) dividing her estate equally among all children:

Prepared by a legal firm;

Witnessed by a lawyer and his clerk (‘SP4’); and

Poornachandran a/l Singaraveloo was named as the executor.

A 2011 Will naming the Second Respondent (‘R2’) as the sole beneficiary. This 2011 Will was:

Prepared by the First Respondent, Amanah Raya Berhad (‘R1’); P-02(NCVC)(W)-503-03/2024 3

Witnessed by two of R1’s officers (SD1 and SD2); and

R1 was named as the executor. [3] The appellants are four of the deceased’s surviving children, who challenged the 2011 Will, grounded on:

Language;

Capacity;

Undue influence; and

Forgery.

(B) BRIEF FACTS [4] The facts of the case had been set out by the learned JC in his ground of judgment, and we have, by and large, jointly adopted his findings of fact with necessary modifications. [5] The deceased, passed away on 19.05.2013, leaving behind the First Plaintiff (‘P1’), the Second Plaintiff (‘P2’), the Third Plaintiff (‘P3’), and the Fourth Plaintiff (‘P4’) [collectively referred as the plaintiffs (‘the Ps’)], the Second Defendant (‘D2’), and five other children: P-02(NCVC)(W)-503-03/2024 4

The Ps claimed entitlement to the deceased's estate until D2 produced the 2011 Will during the proceedings for Letters of Administration (LA).

The Ps later discovered a 1976 Will, which divided the estate equally among all surviving children. They amended their claim to challenge the validity of the 2011 Will produced by D2 that had purportedly named him as the sole beneficiary, while the 1976 Will named all children as the lawful beneficiaries. [6] After a full trial lasting for 13 days, the learned JC had addressed the following issues as follows:

Whether the 2011 Will was executed in compliance with the Wills Act 1959;

(ii) Whether the deceased had testamentary capacity and understood the contents of the 2011 Will; and

(iii) Whether there were any forgery, undue influence, fraud, or suspicious circumstances surrounding the 2011 Will. [7] The Ps before the High Court argued that the deceased only understood Tamil and was not appropriately apprised of the 2011 Will. In addition, it was asserted that D2 had supposedly exerted undue influence in the purported execution of the impugned 2011 Will: P-02(NCVC)(W)-503-03/2024 5

It was argued that the deceased only understood Tamil and could not comprehend English or Malay;

They presented evidence of previous documents signed by the deceased, which were translated into Tamil by Tamil-speaking lawyers or commissioners of oaths;

The deceased was not provided with an appropriate explanation of the 2011 Will by D1's officer;

It was alleged that undue influence by D2 who had brought the deceased to D1's office to revoke the 1976 Will; and

The deceased's advanced age (80 years) and lack of understanding of the 2011 Will's language made her vulnerable to manipulation. [8] Meanwhile, D2 took the position that the deceased understood English and Malay and asserted that the 2011 Will was executed voluntarily and in accordance with proper procedures:

The deceased could communicate in the foregoing languages;

D1's officer testified that the deceased understood the content of the 2011 Will and signed it voluntarily; P-02(NCVC)(W)-503-03/2024 6

D1 followed its Standard Operating Procedures (SOP), ensuring the deceased's understanding and free consent were obtained before executing the 2011 Will; and

The witnesses from D1 confirmed the deceased signed the 2011 Will in their presence after understanding its contents.

(C) THE LEARNED JC’S FINDINGS [9] In his decision, the learned JC opined that:

There was supposedly no conclusive evidence that the deceased only understood Tamil; there was testimony that supposedly supported her understanding of English and Malay. The absence of a jurat in both Wills suggested that the deceased did not require translation. Testimonies from SD5 (Dr Puspvalli a/p Singaraveloo) and SP8 (P3 – Ratna Singaraveloo Joseph) supported the claim that the deceased could understand English and Malay;

His Lordship found no evidence of mental incapacity or unsoundness of mind for the deceased to infirm her execution of the 2011 Will. The deceased was deemed to have testamentary capacity and understood the nature and effect of the 2011 Will; P-02(NCVC)(W)-503-03/2024 7

The Forensic analysis of the signature was supposedly inconclusive, with no evidence of forgery due to insufficient sample size and reliance on photocopies. The court found no evidence to support the fraud claim;

His Lordship found the witnesses from D1 were found credible and independent. The court accepted the testimonies of D1's witnesses (SD1, SD2, SD3) as credible and independent, confirming that the deceased signed the 2011 Will in their presence;

There were supposedly no undue influence, fraud, or suspicious circumstances surrounding the 2011 Will; and

In the premise, on 27.02.2024, it was held:

The 2011 Will was declared valid and compliant with the Wills Act 1959;

The Ps' claims were dismissed, and costs were awarded to the respondents/defendants; and

D2’s counterclaim was allowed, including the cancellation of caveats on the deceased’s property.

(D) THE PARTIES’ ARGUMENTS BEFORE THE COURT OF APPEAL P-02(NCVC)(W)-503-03/2024 8 [10] The Appellants/Plaintiffs (‘Ps’) Submitted:

The deceased had passed away on 19.05.2013, leaving behind 10 surviving children in her estate. The Ps argued that the 2011 Will produced by the R2 (Mohd Shan bin Abdullah) is invalid due to suspicious circumstances, lack of testamentary capacity, and undue influence by R2 (originally an Indian Malaysian who had converted to Islam), who is named as the sole beneficiary in the 2011 Will:

It was argued that the deceased was 81 years old at the time of the 2011 Will, and there was no medical evidence to confirm her testamentary capacity. It was argued before us that:

The 2011 Will was executed under suspicious circumstances;

(ii) R2 allegedly took the deceased to R1 (Amanah Raya Berhad) to create the Will, where R2 himself filled out the Will form, naming himself as the sole beneficiary of 100% of the deceased’s estate;

(iii) The deceased was allegedly illiterate in English and Bahasa Melayu, and the Will was P-02(NCVC)(W)-503-03/2024 9 not explained to her in Tamil, the only language she supposedly understood;

(iv) The Appellants argue that the deceased did not have knowledge or approval of the contents of the 2011 Will, as it was not explained to her in Tamil, and there were no contemporaneous notes or evidence to prove her understanding; and

A handwriting expert testified that the signature on the 2011 Will was most likely forged, as it showed significant differences from the deceased’s known signatures on other documents.

The "Golden Rule" was not followed, which requires a medical practitioner to assess the testator’s mental capacity, especially for elderly individuals, as in the case of the deceased; and

The deceased was supposedly illiterate in English and Bahasa Melayu, and the 2011 Will was written in English without translation into Tamil, her mother tongue. [11] The Appellants/Ps cited: P-02(NCVC)(W)-503-03/2024 10 - Gan Yook Chin & Anor v Lee Ing Chin & Ors [2005] 2 MLJ 1, where the Federal Court emphasised that:

Testamentary capacity is determined by the testator's soundness of mind at the time of executing the will.

(ii) The testator must understand the nature of the act, the extent of their property, and the claims of beneficiaries.

(iii) Any suspicious circumstances surrounding the making of a will must be dispelled by the propounder of the will.

(iv) The propounder of the will must prove testamentary capacity, due execution, and dispel any suspicious circumstances.

The challenger must prove undue influence, fraud, or forgery. - Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] 5 MLJ 891, where it was observed by the Court of Appeal that:

The "golden rule" from Simpson's case, which suggests that wills executed by elderly or infirm testators should be witnessed and approved by a medical practitioner to ensure testamentary capacity.

(ii) The court invoked an adverse inference under Section 114(g) of the Evidence Act 1950 against the respondents for failing to call a medical practitioner who had examined the deceased multiple times. P-02(NCVC)(W)-503-03/2024 11

(iii) The court found that the respondents failed to dispel suspicious circumstances surrounding the will, including the involvement of beneficiaries in its preparation and the omission of certain assets. [12] We were alluded to the fact that the 2011 Will emerged only in 2018, five years after the deceased’s death, and after the Appellants/Ps had filed an application for Letters of Administration (‘LA’). It was suggested that:

R2 actively orchestrated the preparation and execution of the 2011 Will, including filling out the Will Form himself and naming himself as the sole beneficiary;

The deceased had previously executed legal documents, including her 1976 Will, with the assistance of Tamil-speaking lawyers or interpreters to distribute her estate equally amongst her surviving children:

The 1976 Will was executed without any suspicious circumstances, and the original Will was produced in court by the lawyer’s firm that had prepared it; and

(ii) The Appellants argue that the 1976 Will is valid and should be admitted to probate.

However, no such assistance was provided for the 2011 Will; P-02(NCVC)(W)-503-03/2024 12

The 2011 Will represents a radical departure from the 1976 Will, which had divided the estate equally among all 10 children; and

The 2011 Will left 100% of the estate to R2, which would contradict the deceased’s known intentions to share her estate among her children in 1976. [13] The Appellants/Ps cited in support: -Tobin v Ezekiel [2012] NSWCA 285, where it was observed by the

The interplay between suspicious circumstances, knowledge and approval, and undue influence.

(ii) It held that suspicious circumstances must be dispelled by the propounder of the will, but undue influence must be affirmatively proved by the challenger.

(iii) The court found that false and incomplete evidence given by beneficiaries raised adverse inferences about their involvement in the will-making process. - Chin Jhin Thien & Anor v Chin Huat Yean [2020] 4 MLJ 581, where the Federal Court emphasised that suspicious circumstances must be adequately addressed and dispelled by the propounder of the will. [14] It was further argued that: P-02(NCVC)(W)-503-03/2024 13

The deceased did not have knowledge or approval of the contents of the 2011 Will. The Will was not translated or explained to her in Tamil, and there is no evidence that she understood its contents;

The Appellants allege that R2 orchestrated the creation of the 2011 Will to benefit himself. He failed to take the deceased to a lawyer’s office for independent legal advice and instead took her to R1, where he influenced the process;

Witnesses from R1 (executor of the 2011 Will) allegedly provided contradictory and unreliable testimony regarding who explained the Will to the deceased. The inconsistencies and contradictions in the testimony of R1 witnesses were highlighted, particularly regarding whether the contents of the 2011 Will were explained to the deceased. They argue that R1’s witnesses are not credible and that their testimony is unreliable;

The Appellants criticise R1’s SOP, arguing that they were inadequate for handling the case of the elderly and illiterate testator. R1 failed to provide a Tamil interpreter, did not take notes of the deceased’s instructions, and allowed R2 to fill out the Will form; and

It was suggested that the absence of a jurat (a statement confirming the Will was explained to the deceased) further P-02(NCVC)(W)-503-03/2024 14 raises doubts about whether the deceased understood the document (though in law there is no such requirement). [15] In the circumstances, it was submitted that:

R2 had exerted undue influence over the deceased, who was elderly, physically weak, and financially dependent on him;

R2 manipulated the deceased into making the 2011 Will, which solely benefited him, contrary to her previous intentions;

R2 deliberately chose R1’s office to prepare the 2011 Will instead of taking the deceased to a Tamil-speaking lawyer for independent legal advice;

The 2011 Will emerged only in 2018, five years after the deceased’s death, and after the Appellants had filed an application for Letter of Administration (LA);

R2 failed to respond to inquiries from the P3 and her lawyer about the existence of a Will, despite claiming that the deceased had left the estate to him; and

R2 allegedly used RM200,000.00 from the deceased’s late husband’s estate to renovate the house, which he P-02(NCVC)(W)-503-03/2024 15 later claimed as his own. He also prevented other siblings from accessing the house by placing another sibling and her husband there. [16] A forensic expert testified that the signature on the 2011 Will was of different authorship compared to the deceased’s signature on other documents. The Rs failed to provide any expert evidence to prove the authenticity of the signature on the 2011 Will:

R1 failed to adhere to proper procedures in preparing the 2011 Will, allowing R2 to fill out the Will Form and name himself as the sole beneficiary; and

R1’s witnesses provided inconsistent and contradictory testimony regarding the explanation and translation of the 2011 Will to the deceased. [17] In support of their arguments, the Appellants/Ps also cited amongst others:

Ng Hoo Kui & Anor v Wendy Tan Lee Peng [2020] 12 MLJ 67: The Federal Court emphasises the importance of dispelling suspicious circumstances surrounding a Will.

(ii) Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998] 3 MLJ 457: P-02(NCVC)(W)-503-03/2024 16 Jeffrey Tan J (HC) highlights the need for a sound disposing mind and the testator’s appreciation of claims by other beneficiaries.

(iv) Tob Weng Keong & Anor v Tob Chee Hoong [2019] MLJU 1435: The Court of Appeal states that the propounder of a Will must provide strong affirmative proof to dispel suspicious circumstances.

(iv) Dalip Kaur v Pegawai Polis Daerah [1992] 1 MLJ 1: The Supreme Court stresses the importance of considering the evidence of handwriting experts. [18] In the foregoing circumstances, it was submitted that:

The learned JC erred in his findings and conclusions, which justify appellate intervention to invalidate the 2011 Will and admit the 1976 Will to probate;

The 2011 Will was executed and emerged under suspicious circumstances, where the deceased lacked testamentary capacity and did not have knowledge or approval of the 2011

The Rs failed to discharge their legal and evidential burden to prove the validity of the 2011 Will that does not reflect the deceased’s true intentions and was influenced by R2’s undue influence and fraud. P-02(NCVC)(W)-503-03/2024 17 [19] The Respondents’ Submissions 19.1 R1 took the position that:

The deceased:

Had full knowledge and approval of the 2011 Will's contents, supported by testimony from witnesses who interacted with her during its execution;

She understood the contents of the will, which were explained to her twice, including in Malay for confirmation;

Witnesses from R1 testified that the deceased was fully conscious and understood the nature and effect of the 2011 Will. The deceased was alert, lucid, and fully aware of her actions at the time of execution of the Will; and

The Ps did not provide medical evidence or testimony to support their claim of mental incapacity.

It was argued that appellate courts should be cautious in overturning findings of fact made by trial judges who had the benefit of observing witnesses directly;

Though the Ps had presented a handwriting expert (SP3) to challenge the authenticity of the deceased's signature, P-02(NCVC)(W)-503-03/2024 18 R1 questioned the credibility of the expert, noting that he had retired 16 years prior, lacked current qualifications, and based his analysis on photocopied signatures with a 34- year time gap. Expert opinions are not conclusive and must be supported by cogent data;

R1 maintained their stand that:

The deceased had testamentary capacity, understood the 2011 Will's contents, and executed it with full knowledge and approval;

The 2011 Will was validly executed, and the Ps have failed to provide credible evidence to support their claims;

The deceased knew and approved the contents of the 2011 Will, which were explained to her in simple Bahasa Melayu before signing;

The Ps claim that the 2011 Will is invalid because it was written in English, which the deceased allegedly did not understand. The contents were explained in Bahasa Melayu, which the deceased understood, and there is no legal requirement for a will to be written in a specific language.

The Ps shoulder the burden of proving undue influence, fraud, incapacity, or suspicious circumstances to challenge P-02(NCVC)(W)-503-03/2024 19 the 2011 Will's validity. They have failed to meet this burden:

Allegation has been made that R2 had influenced the preparation of the 2011 Will, but R1 argues that this claim is speculative and unsupported by evidence;

The Ps had made allegations of suspicious circumstances surrounding the 2011 Will's execution, but these claims lack legal merit and evidence;

R1 emphasises the independence and credibility of the attesting witnesses, who were neutral professionals and provided consistent testimony; and

The Ps evidence is inconsistent, speculative, and unsupported by credible documentation, undermining their case. The High Court's findings were correct and based on credible evidence, and there is no basis for appellate intervention.

R1 highlights the legal principle that a testator has the right to dispose of their property as they wish, provided that the will is executed voluntarily and in compliance with the law. P-02(NCVC)(W)-503-03/2024 20

19.2 R2 took the position that:

The deceased executed her last 2011 Will on 02.06.2011, leaving the entirety of her estate to R2, including the family home at No. 1569, Jalan Bukit Panchor, Nibong Tebal, Penang:

The 2011 Will was executed in compliance with the Wills Act 1959, including proper witnessing and testamentary capacity; and

As it had been confirmed by independent witnesses from R1.

The Ps claim dissatisfaction with the deceased’s decision to exclude them from the estate and challenge the impugned High Court’s ruling;

The deceased was of sound mind and fully capable of understanding the nature and effect of her actions when executing the last 2011 Will. She had the necessary testamentary capacity. Witnesses from R1 testified that the deceased was alert, able-bodied, and capable of clear communication;

There are no suspicious circumstances as alleged by the Ps. The 2011 Will was prepared and executed transparently at R1’s office, a reputable institution with strict SOP. P-02(NCVC)(W)-503-03/2024 21 Allegations of suspicious circumstances, undue influence, and fraud by the Appellants are unsubstantiated and based on conjecture;

The Ps failed to discharge their burden to provide credible evidence to support their claims of forgery, fraud, or undue influence. Their reliance on the alleged First Will (1976 Will) is flawed because they failed to call key witnesses to establish its authenticity:

They failed to address substantive arguments regarding the 1976 Will and abandoned their allegations of forgery concerning the 2011 Will; and

The Ps failed to provide credible evidence or witnesses to prove the validity of the 1976 Will. Key witnesses, including the solicitor who allegedly attested the First Will, were not called to testify. It lacks evidentiary support, proof of translation, and corroborating testimony.

The handwriting expert’s report provided by the Ps is unreliable due to insufficient and outdated specimen signatures, reliance on photocopies, and lack of methodological rigour; and

In the foregoing circumstances: P-02(NCVC)(W)-503-03/2024 22

R2 argues that he has successfully proven the validity of the 2011 Will, which reflects the true testamentary intentions of the deceased; and

The Ps have failed to provide credible evidence to challenge the impugned High Court’s decision.

(E) THE COURT OF APPEAL’S FINDINGS [20] We have duly considered the arguments of the parties, the evidence before us and the findings of the learned JC, holding in favour of the Rs. We are mindful of the trite legal position that there is no appellate intervention unless there is an appealable error in the learned judge's appreciation of the facts before him that led to an erroneous finding and an unjust conclusion. We have examined the evidence vis-à-vis the learned JC’s findings as follows:

THE LAW ON TESTAMENTARY CAPACITY KNOWLEDGE [21] It is settled law that the burden of proving testamentary capacity and due execution lies on the propounder of the will, as does the burden of dispelling any suspicious circumstances that may surround the making of the will. While the onus of establishing extraneous vitiating factors such as undue influence, fraud or forgery lies on those who challenge the validity of the impugned will. A person may lack the mental capacity to enter a contract and yet may have sufficient testamentary capacity. The relevant and material point of time to P-02(NCVC)(W)-503-03/2024 23 consider the mental capacity of the deceased was the time at which the will was made. [22] We refer to the case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA , where Justice Gopal Sri Ram JCA made essential factual and legal observations in a case involving a 75-year-old man with ill health on the validity of a Will. The appellant in that case had made such an assertion, but the trial judge dismissed such allegations on the basis that no evidence (medical report) had been adduced to support the claim of a lack of testamentary capacity at the relevant time. The Court of Appeal held that it is a trite law that where mental incapacity is alleged in the pleadings or evidence, the burden of proof on testamentary capacity rests upon the party propounding the Will (Sarkar’s Law of Evidence, 14th Edition, 1993). The Court of Appeal made it clear that there should not be any doubt that it is sufficient for the appellant challenging the Will to call into question, either by way of pleadings or evidence, the mental capacity of the deceased. The moment the capacity is called into question:

The onus lies on the propounder of the Will to establish affirmatively otherwise, and

The appellant in law is not obliged to adduce any medical report to show that the deceased lacked testamentary capacity. P-02(NCVC)(W)-503-03/2024 24

Though there is supposed evidence that the deceased had given instructions to draw up the Will, and that the deceased had executed the said Will to demonstrate testamentary capacity, the judge failed to appreciate that such evidence by itself does not discharge the burden of proof where there is a suggestion to the contrary.

In such circumstances, it is incumbent upon the propounder of the Will to establish affirmatively that the deceased had testamentary capacity.

The Court of Appeal (COA)’s decision above was affirmed by the Federal Court in of Gan Yook Chin & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2004] 4 CLJ 309. [23] We have taken the liberty of distilling the principles in the judgment that would be applicable in the present appeal before us as follows:

The judge must:

When deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria.

(ii) He must consider the presence or absence of any motive that a witness may have in giving his evidence. Where contemporary documents existed, he must test the oral evidence of a witness against these. P-02(NCVC)(W)-503-03/2024 25

(iii) He must also test the evidence of a particular witness against the probabilities of the case (emphasise is ours).

(iv) The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal.

In Udham Singh v Indar Kaur [1971] 2 MLJ 263, [1971] CLJU 144:

The Federal Court noted that it was correct for the appellant to argue that the judge was wrong in placing the onus of proving testamentary capacity on the appellant.

(ii) A person has testamentary capacity when he understands the nature of the act and its effect.

(iii) No disorder of the mind must poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.

(iv) No insane delusion must influence his will in disposing of his property, and bring about a disposal of which, if the mind had been sound, would not have been made (Banks v Goodfellows (1870) LR QB 565). P-02(NCVC)(W)-503-03/2024 26

It was for the propounder of the Will to establish the mental capacity of the testator, that he understood the disposition of the Will, and that it was duly executed by him (Bankim Bihari v Matangini Dasi AIR (1919) PC 157).

The Privy Council in Barry v Butlin (1838) 12 ER 1089 observed two rules on the burden of proof:

The onus probandi lies in every case upon the propounder of a Will, and he must satisfy the conscience of the Court that the instrument is the last Will of a free and capable testator.

(ii) If a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought to excite the suspicion of the Court generally; it calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed. It is judicially satisfied that the Will propounded does express the true will of the deceased (emphasis is ours).

The foregoing rules were further expanded in Tyrrel v Painton [1894] pp.151-157 by Lindly LJ, where he said that the rules propounded in Barry v Butlin and the cases of Fulton v Andrews (1874-75) LR 7 HL 448 and Brown v Fisher 63 LT 465: P-02(NCVC)(W)-503-03/2024 27

The rule is not confined to the single case in which a Will is prepared by or on the instructions of the person taking considerable benefits under it but extends to all cases in which circumstances exist which excite the suspicion of the Court. Wherever such circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicion.

(ii) It is only when that is done that the onus shifts to those who oppose the Will to prove fraud, undue influence, or whatever else they rely on to displace the case made for establishing the Will.

To sum up:

The effect of the authorities on the subject is that while the onus lies on the propounder of a will to dispel any suspicious circumstances surrounding the making of the will, that burden may be discharged by showing that the testator, being of competent mind, had his will read over to him (Fulton v Andrew [1875] LR 7 HL 448) or that the testator knew and approved of the contents of the will (Tyrrell v Painton [1894] P 151).

(ii) One method of dispelling suspicious circumstances where there is a substantial gift to a person who either prepares or is closely involved in the preparation of a will is to show that the P-02(NCVC)(W)-503-03/2024 28 testator had obtained independent legal advice (emphasis is ours).

(iii) Alternatively, the propounder may, by other methods, show that the Will contains the intention of the testator and that he knew and understood what he was doing, and in this way sufficiently removes any suspicions which may have arisen (Ramcoomarsingh v Administrator General (2002) UKPC 67). [24] We also take cognisance of:

Tristram and Coote’s Probate Practice, 28th Edition, 1995, pg.658, where it was stated that in law, it is essential in the validity of a Will that the testator should know and approve its contents;

Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 18th Edition, 2000, explains:

That a party who put forward a document as being the true last Will of the deceased must establish that the testator knew and approved the contents at the time of execution; and

(ii) It is a trite legal position that due execution cannot be equated with knowledge and approval of the contents, as it is for the party propounding the P-02(NCVC)(W)-503-03/2024 29 impugned Will to prove the existence of knowledge and approval of the testator concerning the impugned Will (emphasis is ours).

The testator’s knowledge and approval of the contents of the Will are part of the burden of proof assumed by anyone who propounds a testamentary instrument; and

Once the appellant had clearly, by their pleadings or evidence, raised the issue as to the knowledge and approval of the deceased concerning the contents of the alleged Will, it is incumbent on the respondent, as the party propounding the impugned Will, to prove affirmatively that the deceased knew and approved the contents of the said Will.

(ii) SUSPICIOUS CIRCUMSTANCES [25] As in all cases concerning the validity of a Will, the issue would be anchored on this basis, amongst other vitiating factors.

The alleged Will does not at all reflect the deceased’s true will, intention and volition, but was procured by importunity of and or determined by the respondent in consultation with the party that prepares the impugned Will, without the knowledge and approval of the deceased; P-02(NCVC)(W)-503-03/2024 30

It is incumbent for the propounder of the Will to remove the suspicion affirmatively, and to prove the deceased knew of the contents of the impugned Will and approved it;

In Dr Shanmuganathan v Periasamy s/o Sithambaran Pillai [1997] 3 MLJ 61, FC, the Federal Court observed that:

At the close of the defendant’s case, numerous instances clearly excited the suspicion of the Court, and these were still present and were not affirmatively removed;

(ii) The suspicions were not removed at all, either after the witnesses gave their evidence or, for that matter, even after the close of the defendant’s case;

(iii) The Federal Court found that there had been misdirection on the part of the trial judge in holding that it was unnecessary to deal with suspicious circumstances, as these had been considered and dealt with under the headings’ testamentary capacity and due execution; and

(iv) It was also a misdirection and no judicial appreciation of the evidence when the trial judge held that suspicious circumstances were all circumstantial, and some were conjecture and speculation. P-02(NCVC)(W)-503-03/2024 31 [26] Anchored on and guided by the foregoing trite legal positions, the facts to wit are:

(i). TESTAMENTARY CAPACITY AND KNOWLEDGE OF THE DECEASED CONCERNING THE COMPETING WILLS (2011/1976): Part C, Ikatan Dokumen Bersama, L9, PDF 147-147; Ikatan Teras Bersama 4, L21, PDF 165-169:

The learned JC in his findings addressed the arguments of the parties on the issue of whether the deceased understood the content of the 2011 Will.

After addressing the Ps arguments that:

The deceased did not understand the content of the Will dated 2.6.2011 because she only understood Tamil and was not provided with proper explanations by R1/D1's staff;

(ii) They presented documentary evidence showing that the deceased required translations into Tamil for other legal documents, such as a Power of Attorney (2010), a Statutory Declaration (2009), and a Deed of Revocation of Power of Attorney (2009); and

(iii) They maintained that the deceased's inability to understand English or Malay (Bahasa Melayu) was evident from her reliance on Tamil-speaking professionals for previous legal documents.

And the Ds arguments that: P-02(NCVC)(W)-503-03/2024 32

The deceased understood the content of the 2011 Will and voluntarily revoked the First Will.

(ii) Witnesses from the R1 who testified that the deceased understood English and Malay and was briefed about the 2011 Will's contents before signing it.

The learned JC:

After deliberating on all the evidence before the Court, he surmised by assuming in paragraph [34] of his findings that, in the circumstances, it should be assumed that the deceased understood English (emphasise is ours).

It is a trite principle and a bedrock of a fair trial that a Court of law does not participate in guesswork. A fact must be proved or not at all, but indeed not presumed.

Civil cases are always grounded on the factual evidence, and not assumptions or speculations. The Court does not act on speculation on the evidential materials before it in arriving at a decision.

A sitting judge may only accept certain things (judicial notice) as accurate without formal proof when they are notorious facts and or verifiable facts. P-02(NCVC)(W)-503-03/2024 33

When a piece of evidence is “assumed” into the record sans proper legal foundation, it would attract appellate intervention. It is settled law that the Court must not act on assumptions, speculation, or conjecture.

As alluded to in Asean Security Paper Mills Bhd v CGU Insurance Bhd [2007] 2 MLJ 301, the Federal Court observed:

That a judge’s decision must be based on primary facts and proven evidence, rather than guesswork.

(ii) The Court should not act on suspicion or conjecture.

(iii) It would be doing a grave injustice if the Court were to accept (the evidence), as it is not based on primary facts and personal knowledge, but on conjecture without any proper foundation.

It is our considered observation from decided legal authorities set out earlier that:

Given her advanced age and the circumstances of the deceased and the parties from the facts gathered before the Court and the pleadings, it would have been prudent on the side of abundant caution to mitigate or P-02(NCVC)(W)-503-03/2024 34 dispel any suspicion or adverse inference that the Golden Rule propounded in the Simpson’s case be strictly observed.

(ii) As cited in Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] 5 MLJ 891 , it was determined that the "golden rule" from Simpson's case suggests that wills executed by elderly or infirm testators should be witnessed and approved by a qualified medical practitioner in the appropriate field to ensure testamentary capacity.

(iii) In the foregoing case, the Court found that the respondents had failed to dispel suspicious circumstances surrounding the will, including the involvement of beneficiaries in its preparation and the omission of certain assets. Chin Jhin Thien & Anor v Chin Huat Yean & Anor [2020] 4 MLJ 581 legally amplified the need that any existing suspicious circumstances must be adequately addressed and dispelled by the propounder of the will (emphasise is ours). [27] We find the learned JC has failed to appreciate the suspicious circumstances, as follows: P-02(NCVC)(W)-503-03/2024 35

We have examined the witness statements, the notes of evidence, and all other available materials produced before us in considering this appeal;

Several inconsistencies which, in our considered determination, constitute suspicious circumstances that had not been appropriately addressed and/or dispelled during the proceedings at the High Court below;

In examining these suspicious circumstances, we are guided by the timeless beacon of guidance (benchmark) in such matters, as propounded by the Privy Council in Barry v Butlin (1838) 12 ER 1089, that:

Where a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought to excite the suspicion of the Court generally; it calls upon it to be vigilant and jealous in examining the evidence in support of the instrument (emphasis is ours); and

(ii) It ought not to pronounce a judgment in favour unless the suspicion is removed.

This rule extends to all cases in which circumstances exist which excite the suspicion of the Court: Tyrrel v Painton [1894] pp.151-157. P-02(NCVC)(W)-503-03/2024 36

Wherever such circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicions satisfactorily. It has been advocated that one method of dispelling suspicious circumstances where there is a substantial gift to a person who either prepares or is closely involved in the preparation of a will is to show that the testator had obtained appropriate independent legal advice. In the present case, there are no materials of such nature to assist in removing the suspicious circumstances (emphasise is ours). [28] The following are the suspicious circumstances, which, in our considered findings, had not been appropriately dispelled by the respondents/defendants that were not judicially appreciated by the learned JC, who, in summing up, felt that it must be assumed that the deceased understood English and consequently understood the contents and terms of the impugned will that she supposedly signed:

28.1 The impugned 2011 Will was drawn up by R1 and R2 (named the 100% sole beneficiary):

R2 did not deny during cross-examination (PDF pg.166) that he was the one, instead of the deceased, who filled out the “Borang Wasiat” (L.9, PDF 42-46) at the premises of R1;

(ii) He claimed that the deceased chose R1 for the drawing up of the 2011 Will, but evidence at the trial reveals that it was his choice (L.7 PDF 196). P-02(NCVC)(W)-503-03/2024 37

(iii) At p.212 (cross-examination), he disagreed when it was put to him that if the deceased understood English, there was no reason for his presence at the time of drawing up the will. He acknowledged that he personally wrote that he was 100% beneficiary in the Borang Wasiat;

(iv) R1 did not enquire if there was an existing will of the deceased, and neither did R2 notify them of the 1976 Will (which he knew existed) that had distributed the deceased estate equally amongst the surviving children.

We are not persuaded by the R2’s explanation that he was particular about filling in the Borang Wasiat, and the deceased’s handwriting was allegedly not clear. We find his demeanour suspect.

28.2 Supposed Attestation by R1 officers (SD1 and SD2):

SD1 and SD2 could not confirm during cross-examination that the deceased signed the Borang Wasiat which is the precursor to the drawing up and signing of the impugned 2011 Will (L.21 PDF 166-169). It is to be noted that the 2011 Will was in English but SD1 and SD2 admitted the said 2011 Will was explained to the deceased in Bahasa Melayu. Hence, if it is true that the deceased was the one who prefer the 2011 Will to be in English, then what is the necessity for SD1 and SD2 to explain to the deceased in Bahasa Melayu. From the facts before the Court, we are P-02(NCVC)(W)-503-03/2024 38 not convinced that appropriate explanation had been accorded to the deceased;

(ii) There is no evidence that SD1 and SD2 are conversant and able to communicate in Tamil to explain to the deceased on the terms and contents of the 2011 Will;

(iii) Other than the oral testimony of these witnesses and SD3, no official supporting documents, notes taken, folders or files concerning the deceased’s will were produced in Court. However, the impugned 2011 Will had named R1 as the executor;

(iv) It renders their evidence overall uncertain. Since R1 is the named administrator of the deceased’s estate, a missing file or missing documents does not augur well for their evidence. We take their evidence with abundant caution;

At the time of the supposed execution of the 2011 Will, the deceased was 80 years old, having just had a first cataract operation in January 2010 and a second cataract operation in October 2010 (L.7 PDF 154-155, R2’s cross-examination); and

(vi) In the circumstances, it would be prudent for R1 staff to inquire further on the health and testamentary capacity of the deceased, which they did not. It leaves much to be desired in terms of clarity. P-02(NCVC)(W)-503-03/2024 39

28.3 Concerning the impugned house supposedly gifted by the deceased to R2, evidence before the Court revealed that:

In May of 2010, the deceased entered a Conditional Option to Purchase by giving R2 an option to purchase the said property (6 years from the date of the agreement), which was never exercised by R2 (pg.19, L7(2D)). We have observed and find that:

(ii) This Conditional Option to Purchase, in our considered determination, reflects the true intention of the deceased concerning the impugned property.

(iii) The late father’s 1975 Will is testament and reflects the true family intent that all assets of the estate were to be divided equally between the mother and surviving children (L.21, PDF 8).

(iv) The deceased mother’s 1976 Will that her estate was to be divided equally between the surviving children also reflects the true intent of the deceased mother (L.21, PDF 165).

No long thereafter, the impugned 2011 Will was supposedly executed by the deceased, which we find under suspicious circumstances, supposedly gifting the entire impugned property and estate of the deceased entirely and solely to R2 to the exclusion of all other surviving children. P-02(NCVC)(W)-503-03/2024 40

(vi) On question 6 (R2’s Witness Statement), denied that he did not inform his siblings of the 2011 Will. But evidence at the trial revealed that:

P3 (Ratna) wrote in 2016 (L.7 RR 2D PDF 24-26) inquiring about the impugned 2011 Will, but R2 did not respond to it (L.7 PDF 219).

Presgraves & Mathews, the solicitor for the Ps, wrote on the same matter on 26.09.2016 to R2 but did not receive a response (L7, RR 2D, pg.32-34).

Saravanan & Partners' also (L7 RR 2D, PDF 22-23) wrote on the late father's Will, which was not acted upon. It also remained unanswered. It reflects an adverse pattern of behaviour of R2. In cross-examination at pg. 176, R2 agreed (by replying "OK") when asked whether, if there is a genuine 2011 Will, he has no valid reason to be reluctant to show the 2011 Will to his siblings. We take note too, that the CTC copy of the impugned 2011 Will produced by R2 was not accompanied by any supporting documents (including the covering letter from R1).

28.4 R2 claimed to have provided financially for the deceased without any assistance from his siblings, but could not produce any documents to corroborate:

However, when pressed by the learned counsel for the Ps, he conceded that the late father had left a sizeable estate (money RM200,000.00 for each sibling and the deceased, and land) to the deceased.

(ii) In the circumstances, the deceased had her own money.

(iii) He further admitted that Ratna (P3) and Dr Pushpa (SD5) also contributed to her medical expenses.

(iv) His demeanour leaves much to be desired as a truthful witness.

R2 at (L.7 RR 2C PDF186), cross-examination, admitted the RM200,000.00 of the deceased’s entitlement from the late father’s estate; he had supposedly used RM40,000.00 (unsupported) for the deceased’s funeral, while the balance of RM160,000.00 he claimed to have used to renovate the impugned house (unsupported) without informing the siblings, as it falls under the estate of the deceased.

(vi) It does not augur well for his demeanour and credibility as a truthful witness. [29] The Federal Court clarified in Dr Shanmuganathan v Periasamy s/o Sithambaran Pillai [1997] 3 MLJ, FC, that numerous instances clearly excited the suspicion of the Court that were still present and were not affirmatively removed even after the witnesses P-02(NCVC)(W)-503-03/2024 42 gave their evidence or, for that matter, even after the close of the defendant’s case. [30] In the present case, in its entirety, we are not persuaded that the learned JC has appropriately addressed suspicious circumstances and affirmatively dispelled them by the respondents/defendants. It had impaired the learned JC’s findings, leading to an unjust decision. For context and clarity, it bears reiterating in a nutshell what was articulated by Gopal Sri Ram JCA in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA, over essential factual and legal observations in a case involving a 75-year-old man on the validity of a Will:

The trial judge dismissed the allegation on testamentary capacity on the basis that no evidence (medical report) had been adduced to support the claim of a lack of testamentary capacity at the relevant time.

The Court of Appeal held that it is a trite law that the burden of proof on testamentary capacity rests upon the party propounding the Will (Sarkar’s Law of Evidence, 14th Edition, 1993).

The Court of Appeal made it clear that there should not be any doubt that it is sufficient for the appellant challenging the Will to call into question, either by way of pleadings or evidence, the mental capacity of the deceased. P-02(NCVC)(W)-503-03/2024 43

The moment testamentary capacity is called into question; the onus lies on the propounder of the Will to establish affirmatively otherwise.

The appellant in law is not obliged to adduce any medical report to show that the deceased lacked testamentary capacity.

Though there is supposed evidence that the deceased had given instructions to draw up the 2011 Will, and that the deceased had executed the said 2011 Will to demonstrate testamentary capacity, the judge failed to appreciate that such evidence by itself does not discharge the burden of proof where there is a suggestion to the contrary. (emphasis is ours)

In such circumstances, it is incumbent upon the propounder of the 2011 Will to establish affirmatively that the deceased had testamentary capacity. [31] Grounded on the foregoing findings alone, it is our considered view that there was no appropriate judicial appreciation of the facts, circumstances and evidence that would warrant appellate intervention to set aside the decision of the learned JC in the present appeal.

(ii) WHETHER THE SIGNATURE OF THE DECEASED IN THE 2011 WILL IS A FORGERY P-02(NCVC)(W)-503-03/2024 44 [32] After addressing the expert evidence of SP3, a forensic handwriting expert, who analysed the signature and concluded it was forged, while the Ds did not provide expert testimony to refute SP3's findings. The learned JC found SP3's testimony unconvincing due to the limited number of signature samples provided (only four, mostly photocopies) and the supposed outdated methods used for analysis. He emphasised that expert testimony is opinion-based and not conclusive. It must be supported by cogent data and corroborated by other evidence, and it must be ruled that the signature of the deceased was not proven to be forged. [33] It is a trite legal position that due execution cannot be equated with knowledge and approval of the contents (Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 18th Edition, 2000), as it is for the party propounding the impugned Will to prove the existence of knowledge and approval of the testator concerning the impugned Will. [34] Since we have determined legal infirmity in the learned JC's findings regarding the understanding and knowledge addressed in paragraph above, this issue is rendered academic; consequently, it goes without saying that the nature of the signature on the 2011 Will does not remedy its invalidity. (emphasise is ours) [35] Our determination herein to set aside the learned JC’s impugned decision effectively and immediately sets aside the 2011 Will. Consequently, it restores the existence of the 1976 Will as if it had not been revoked by the 2011 Will as claimed. With the same P-02(NCVC)(W)-503-03/2024 45 reasoning above, we also hereby order that the counterclaim filed by R2 is dismissed with costs payable to all the Ps. [36] In the foregoing circumstances, we find it just and equitable to allow the Ps’ claim, as set out in paragraph 27, PDF pp.140-143, SoC, L4, Appeal Record A. For convenience, they are summarised in a nutshell as follows:

Paragraph 27.1 is allowed: The 2011 Will is not the last.

Paragraph 27.2 is allowed: The 1976 Will stands as the last will.

Paragraph 27.3 is allowed: The 2011 Will did not revoke the 1976 Will.

Paragraph 27.4 is allowed: The beneficiaries listed in the 1976 Will are valid beneficiaries.

Paragraph 27.5 is allowed: R2 is not the sole beneficiary in the estate of the deceased.

Paragraph 27.6 is allowed: The 1976 Will is the last will to proceed for probate.

Paragraph 27.7 no order

Paragraph 27.8 is allowed: P-02(NCVC)(W)-503-03/2024 46 R2 is to surrender forthwith and deliver all documents on the impugned land and the residential unit.

Paragraph 27.9 is allowed: R1 is restrained from applying for the grant of probate on the invalidated 2011 Will.

Paragraph 27.10 is allowed: R1 is restrained from representing the beneficiaries.

Paragraph 27.11 no order.

Paragraph 27.12 no order:

Paragraph 27.13 is allowed: That the respondents/defendants are to account for the estate of the deceased within seven days from the date hereof.

Paragraph 27.14 is allowed: R2 is forthwith to account and return all proceeds from the estate of the deceased.

Paragraph 27.15 is allowed: In the event of non-compliance, appropriate subsequent proceedings may be pursued to compel compliance by R2.

Paragraph 27.16 is allowed: Damages lie against R2. P-02(NCVC)(W)-503-03/2024 47

Paragraph 27.17 is allowed: The registrar of the High Court will assess damages.

Paragraph 27.18 is allowed: The Ps are permitted to apply for consequential orders.

Paragraph 27.19 is allowed: Costs.

(F) CONCLUSION [37] All things considered, after examining all evidence before us, by majority we allow this appeal and the impugned judgment of the learned JC is set aside forthwith, with costs of RM40,000.00 awarded against R1 and R2, separately, subject to the allocator’s fee. Dated 27 April 2026 HAYATUL AKMAL ABDUL AZIZ JUDGE COURT OF APPEAL Counsels: For the Appellants: Karin Lim Ai Ching together with A. Suppiah, Shamsul bin Jamil and Fatin Maisarah binti Mohd Hisham Messrs Presgrave & Matthews P-02(NCVC)(W)-503-03/2024 48 For the First Respondent: Habib Rahman together with Muhammad Hafiz Tajuddin Messrs Ezrilaw Firm For the Second Respondent: Razeena Rahumatullah together with Aznil bin Abdul Majid Messrs Aznil, Naziah, Juli & Praba