1. ) Wasunan Tonrab v Lee Ah Sin @ Lee Sin Kee (JA-22NCvC-149-09/2019)

WASUNAN TONRAB

THITIMA SAE-LEE (PASSPORT NO.: AA8187380) … PLAINTIFFS AND LEE AH SIN @ LEE SIN KEE [I/C No.: 481002-01-5127] ... DEFENDANT GROUNDS OF JUDGMENT

The Plaintiffs have filed this civil suit seeking various orders, inter alia, for a declaration that the last Will and Testament of the late Mr. Lee Poi Sam is the Will dated 17.07.2018 and that the Will dated 01.04.2005 is revoked and the caveat granted via Kuala Lumpur High Court Suit WA-Kaveat-1824-07/2019 to be revoked.

The Defendant, in reply to the Plaintiff’s claim, had filed a counter claim against the Plaintiffs, inter alia, for a declaration that the Probate obtained by the Plaintiffs, vide Originating Summon No. JA- 32NCVC-371-07/2019 on 19.08.2019 is unenforceable and is to be set aside, that the valid Will and Testament of the late Mr Lee Poi Sam is the Will dated 01.04.2005 and that the Will dated 17.07.2018 04/09/2025 15:56:18 JA-22NCvC-149-09/2019 Kand. 137 S/N afy0I9u7WUufNJTr3nhtug is revoked alongside other ancillary orders.

After going through full trial, having considered the evidence presented and having read the parties’ written submissions, I allow the Plaintiffs’ claim for paragraphs 7.1, 7.2 and 7.3 of the Statement of Claim as follows:

a declaration that the last will of Lee Poi Sam, the deceased is the Will dated 17.07.2018 dan the Will dated 01.04.2005 be revoked and invalid;

caveat obtained pursuant to Court Order via Kuala Lumpur High Court suit no: WA-Kaveat-1824-07/2019 be revoked;

grant of probate to the Plaintiff based on the last will of the deceased dated 17.07.2018 be maintained; and

costs of RM 10,000.00 subject to allocator fees, to be paid by the Defendant to the Plaintiffs.

I have dismissed the Defendant’s counter claim with no order as to costs.

Below are my grounds of the decision.

The background facts in this case are gathered from the cause papers and submissions filed by the parties in chronological order.

The late Mr. Lee Poi Sam (“the deceased”) died on 23.06.2019 at the age of 72 years old. Prior to his death, he has made three (3) wills as follows: S/N afy0I9u7WUufNJTr3nhtug

Will dated 01.04.2005 (the “2005 Will”), naming the Defendant as executor and sole beneficiary of his estate;

a Will dated 27.04.2016 (the “2016 Will”), naming the First Plaintiff (“P1”) as the executrix and sole beneficiary of his estate; and

a Will dated 17.07.2018 (the “2018 Will”), naming both Plaintiffs as the executrixes and the only beneficiaries of his estate.

The Plaintiffs are the joint executrixes and the beneficiaries of the estate of the deceased according to the terms of his Last Will and Testament dated 17.07.2018.

Following the demise of the deceased, the Plaintiffs filed an Originating Summons No.: JA-32NCvC-371-07/2019 in the Johor Bahru High Court to obtain a grant of probate of the 2018 Will whereby a grant of probate was duly issued to the Plaintiffs in the said action.

However, the grant of probate obtained in the said action could not be sealed because the Defendant lodged a caveat in the central registry in the Kuala Lumpur High Court which has been registered as WA-Kaveat-1824-07/2019, purportedly claiming an interest in the estate of the deceased under the 2005 Will.

As such, the Plaintiffs have filed this suit, inter alia, for the declaration that the 2018 Will is the last will and testament of the deceased. S/N afy0I9u7WUufNJTr3nhtug

In brief, the crux of the Defendant’s Defence and Counter Claim is that the Defendant is the rightful executor and beneficiary of the deceased’s estate based on the 2005 Will and the 2018 Will was obtained by the Plaintiffs under undue influence. The Defendant also alleged that the deceased did not have testamentary capacity to execute the 2018 Will, rendering it invalid.

The Defendant makes the following claims and allegations in his

he is the brother of the deceased;

the deceased made the 2005 Will which named the Defendant as the sole executor and beneficiary of the deceased’s estate;

the objective of the 2005 Will was to transfer property identified as Geran Mukim 112, Lot 2838, Mukim Kulai, Daerah Kulai (the “Subject Land”) to the Defendant for the benefit of all the siblings of the Defendant;

the Subject Land was originally mortgaged to the Defendant’s late father as consideration for a loan of RM2,500.00 given by him to one Warjo Bin Kajum sometime in 1965. The said Warjo bin Kajum, the current registered owner of the Subject Land failed to repay the loan, hence the Defendant’s father became the beneficial owner of the Subject Land;

when the grant to the Subject Land was given to the deceased, he became the “bare trustee” of the Subject Land because the loan was given by the Defendant’s father S/N afy0I9u7WUufNJTr3nhtug and not the deceased;

the Defendant has filed an Originating Summons vide JA- 32NCVC-388-07/2019 at the High Court of Johor Bahru for a grant of probate in respect of the deceased’s estate but failed to obtain the order since the Plaintiffs had earlier lodged a caveat at the Kuala Lumpur High Court in respect of the deceased’s estate; and

the Defendant then lodged a caveat at the Kuala Lumpur High Court vide caveat WA-Kaveat-1824-07/2019.

With respect to the 2018 Will, the Defendant alleged that the deceased lacked “testamentary capacity” to make the 2018 Will for the following reasons:

the deceased was 71 years old at that time and he was under the care of the Defendant;

the deceased was undergoing hospital treatment and needed continuous medications;

the deceased suffered a stroke and was not in a proper state of mind to instruct the writing of the two (2) subsequent

the deceased could not possibly understand the effect of the two (2) Wills; and

the effect of the last two (2) Wills contradict the oral agreement between the brothers and contradict the position of the deceased as “bare trustee”.

The Defendant also alleged that the last two (2) wills were prepared under suspicious circumstances since the deceased did not inform the other brothers about his new wills and he did not S/N afy0I9u7WUufNJTr3nhtug use the services of his usual lawyer to prepare the two (2) new wills.

Despite few issues were raised by the parties, I have identified the following issues are the main issues to determine the Plaintiff’s claim and the counter claim of the Defendant:

whether the 2018 Will constitutes a valid will;

whether the deceased has testamentary capacity in executing the 2018 Will;

whether 2018 Will is the last will of the deceased and revoked all his previous wills;

whether the Subject Land was pledged in exchange of loan given by the deceased to the proprietor;

whether the deceased is only a trustee of the Subject Land and consequently, the deceased is not entitled to bequeath it under the 2018 Will; and

whether the 2005 Will was prepared pursuant to the understanding or agreement between the siblings concerning the Subject Land.

Whether the 2018 Will constitutes a valid will

The Wills Act 1959 [Act 346] sets out the elements required to make a valid will. In specific, section 5 of the Act 346 sets out the formal requirements for a valid will: “5. Mode of execution

No will shall be valid unless it is in writing and executed in manner hereinafter mentioned. S/N afy0I9u7WUufNJTr3nhtug

Every will shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; such signature shall be made or acknowledged by the testator as the signature to his will in the presence of two or more witnesses present at the same time, and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary….”. [Emphasis added]

In regards to the testamentary capacity, by virtue of section 4 of the Act 346, it is provided that the testator must be 18 years old and above (section 4 of the Act 346 to be read together with section 2 of the Age of Majority Act 1971 [Act 21] and that the testator must be of sound mind (section 3 of the Act 346). All these requirements, if fulfilled, should constitute a valid will.

It is trite that the burden of proving due execution, testamentary capacity and to dispel suspicious circumstances surrounding the making of the Will, is on the party propounding the will. In the present case, it is the Plaintiffs. However, the onus of establishing any extraneous vitiating element (such as undue influence, fraud or forgery) lay with the party who is challenging the will, the Defendant.

This position was settled in the Federal Court case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 where it was held that— “…[19] As regards the burden of proof, the Court of Appeal quite rightly stated the settled law, ie that where the validity of a will was challenged, the burden of proving testamentary capacity and due execution lay on the propounder of the will as well as dispelling any suspicious circumstances surrounding the making of the will; that the onus of S/N afy0I9u7WUufNJTr3nhtug establishing any extraneous vitiating element such as undue influence, fraud or forgery lay with those who challenged the will. In this connection, we find the approach taken by the High Court of Australia in William Henry Bailey & Ors v Charles Lindsay Bailey & Ors (1924) 34 CLR 558 to be instructive. Therein Isaacs J said inter alia:

The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged, the court is bound to pronounce against the instrument.

This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.

The proponent's duty is, in the first place, discharged by establishing a prima facie case.

A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator.

A man may freely make his testament, how old so ever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments.

The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances.

As instances of such material circumstances may be mentioned:

the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries;

the exclusion of persons naturally having a claim upon the testator;

extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.

Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, S/N afy0I9u7WUufNJTr3nhtug for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

To displace a prima facie case of capacity and due execution, mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing his property.

The opinion of witnesses as to the testamentary capacity of an alleged testator is usually for various reasons of little weight on the direct issue.

While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the court must judge from the facts they state and not from their opinions.”. [Emphasis added]

Therefore, applying the principles enunciated in the case above, the burden of proving due execution of the 2018 Will lies on the Plaintiffs whereas the onus on the Defendant is to prove vitiating elements which would render the said will invalid. In this context, the applicable standard of proof required the Plaintiffs and the Defendant to establish their respective claims on the balance of probabilities.

In the instant case, it is clear that the Plaintiffs has satisfied the formal requirements as stipulated under section 5 of Act 346, whereby the 2018 Will was indeed in writing and signed by the deceased in presence of two (2) witnesses who are advocate and solicitors of the High Court of Malaya, namely PW1 and PW3. S/N afy0I9u7WUufNJTr3nhtug

Thus, it can be seen that the 2018 Will contains a clear attestation clause and the attesting witnesses (PW1 and PW3) have confirmed that the 2018 Will was executed in their presence and that they subscribed their names to the will in the presence of the deceased.

Hence, there is no doubt that the formalities of the 2018 Will have been duly proven in this case.

Whether the deceased has testamentary capacity in executing the 2018 Will

For a will to be valid, the testator ought to be of sound mind. It is important that the testator must have testamentary capacity to make a will, failing which shall render the will invalid. In the case of Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581, the Federal Court explained that testamentary capacity refers to the ability of a person to make a will. A testator is said to have testamentary capacity when he is fully conscious, has a sound mind, understands and approves the contents of the will. The English case of Banks v Goodfellow

LR 5 QB 549 was cited as authority for the meaning of testamentary capacity: “[53] The meaning of testamentary capacity was explained by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, in the following words: “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion S/N afy0I9u7WUufNJTr3nhtug shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the particular state of bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of … [54] The case of Banks v Goodfellow not only lays down the test for will-making capacity, but also makes it clear that a partial unsoundness of mind, not affecting the person’s general faculties and not operating on the person’s mind in regard to a particular testamentary disposition, will not be sufficient to deprive the person of the power to dispose of their property in a will.”. [Emphasis added]

Hence, for the Plaintiffs to prove their case, the burden rests on the Plaintiffs’ shoulder to prove that the deceased in fact had testamentary capacity when making the 2018 Will.

In proving such, four (4) witnesses were called in support of the Plaintiffs’ contention and out of these 4 witnesses, three (3) of them are advocates and solicitors of the High Court of Malaya, namely PW1 and PW3 who were involved in making and executing the 2018 Will and PW2 who was involved in preparing and executing the 2016 Will. It is the Plaintiffs’ contention that the testimonies of each witnesses corroborated each other.

PW1 in his testimony informed that the deceased was seated in his conference room and the deceased appeared to be normal as other testators whose signature PW1 had witnessed in the past. The deceased was not utterly insane and he has signed the 2018 S/N afy0I9u7WUufNJTr3nhtug Will when it was brought to him for execution.

The evidence of PW3 was rather significant in this case as she is the advocate in charge of drafting the 2018 Will. According to PW3, the deceased came to her office alone, bringing along a copy of the will he signed in 2016 and told her specifically what he wanted to change. She further confirmed that the deceased indeed told her his will dated two (2) years earlier, contained terms which are more or less the same except for adding his daughter, the Second Plaintiff (“P2”) as an additional beneficiary and to clarify his lien holder's interest in the Subject Land. PW3 confirmed that the deceased appeared to be very clear minded and very precise about what he wanted. The deceased speech was clear and not incoherent. The deceased was lucid and was very clear in his intention that he only wanted his daughter to inherit his estate. The deceased did not slur in his speech.

The deceased later went to PW3’s office on 17.07.2018 to execute the new will after it was prepared by PW3. PW3 and PW1 had witnessed the execution and signed as witnesses of the new will.

PW3 further informed that the deceased came alone and was able to move on his own. The deceased executed the will by himself and the deceased appeared to like any other individual who is fully capable of handling his affairs, and was clear and precise about what he wanted. The deceased could read in English and he has read over the will before he signed it. PW3 was not aware whether the deceased has any other will that was made after 2018 and as S/N afy0I9u7WUufNJTr3nhtug such, to the best knowledge of PW3, the 2018 Will is the last will and testament of the deceased.

It can also be noted that PW3’s evidence was unshaken by the Defendant during cross-examination whereby PW3 reiterated her stand on the deceased’s testamentary capacity during the making and execution of the 2018 Will.

On the other hand, the Defendant contended that the deceased was old, physically infirm, undergoing hospital treatment and needed continuous medications, and was a stroke patient from

Thus, the Defendant contended that the deceased did not have testamentary capacity in executing the 2018 Will.

PW3 in answering the question why she did not ask for the deceased medical card, has testified that the deceased informed her he had suffered a stroke many years ago and he has given very clear, precise and unequivocal instructions. Thus, PW3 has no doubt as to his testamentary capacity.

In rebuttal to this as well, I am minded of PW2’s testimony, who is also an advocate who prepared the deceased’s 2016 Will. Although the 2016 Will is not directly the subject matter of this case, a point to note from PW2’s testimony is that there is in fact another will made before the execution of the 2018 Will. PW2’s testimony in this case has proven that the deceased was not utterly insane, able in handling his own affairs and was not in any manner debilitated by the stroke. PW2’s statement too confirmed that the deceased had testamentary capacity even in 2016. PW2’s S/N afy0I9u7WUufNJTr3nhtug evidence that the deceased was aware of what he was doing was corroborated by the evidence of the PW3.

From these, it is observed that during the making and execution of the 2018 Will, the deceased was of sound mind and that he had testamentary capacity to execute the will.

In any event, the law on testamentary capacity is that very little testamentary capacity is required to make a valid will. Mere bodily ill-health or imperfect memory is insufficient. This was highlighted in the Court of Appeal case of Lee Ing Chin @ Lee Teck Seng & Ors . v. Gan Yook Chin & Anor. [2003] 2 MLJ 97 as follows: “It may thus be seen that what the law primarily looks for as vitiating testamentary capacity is mental disorder or insane delusion. Mere bodily ill-health or imperfect memory is insufficient. That comes across again from the judgment of Cockburn CJ in Banks v Goodfellow: In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter part may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of. … But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, S/N afy0I9u7WUufNJTr3nhtug and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it in writing. Thus it may be seen that testamentary capacity is not to be equated with contractual capacity. A person may lack the mental capacity to enter into a contract and yet may have sufficient testamentary capacity.”. [Emphasis added]

Further, I refer to the case of Parker v. Felgate [1883] 8 P.D. where the facts of the case are quite similar to the present case. In that case, the testator gave instructions to a solicitor, but whose condition deteriorated thereafter. The testator was later roused from a partial coma to execute the will. ln upholding the will, the Court ruled that— “This being the material evidence, the law applicable to the case is this: If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, “I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out. “Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at that time know and recollect all that she had done with Mr. Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that she was in a condition, if each clause of this will had been put to her, and she had S/N afy0I9u7WUufNJTr3nhtug been asked, “Do you wish to leave So-and-So so much,” or do you wish to do this (as the case might be), she would have been able to answer intelligently “Yes” to each question? That would be another condition of mind. It would not be so strong as the first. viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction. and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, “I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it”; it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient. It is for you to say whether, having regard to the circumstances under which this will was prepared and executed, you accept the view of those who were present at the time, and who have given their evidence, and who say that in their judgment she was conscious.”. [Emphasis added]

From the evidence of PW2 and PW3, I find the deceased has given clear, precise and unequivocal instructions for the preparation of 2016 Will and 2018 Will respectively to PW2 and PW3. The deceased has gone through the 2016 Will and 2018 Will respectively with PW2 and PW3 before the deceased executed both Wills.

The Defendant has raised another issue pertaining the making of the 2018 Will, whereby it was contended that there were suspicious circumstances in the making of the same. S/N afy0I9u7WUufNJTr3nhtug

The Defendant brought in issues in regards to the conducts and characteristics of the deceased to rule out the possibility of him naming the Plaintiffs as the beneficiaries as well as several other factors which questioned his decision to name the Plaintiffs as his beneficiaries via the 2018 Will.

The Defendant contended the Plaintiff has exerted undue influence on the deceased as the deceased is weak and suffered stroke and can be influenced by the Plaintiffs. The Plaintiffs stayed in Thailand and are not close to the deceased. They never take care of the deceased. The deceased was taken care by the Defendant and was close to the Defendant. The deceased usually would have discussed with them before he made any decision about his property. The Defendant also claimed that the deceased did not employ the solicitor that used to prepare the previous will. The Defendant further claimed that the Plaintiffs planned to obtained money from the estate in order to build a resort in Thailand.

In this regard, I refer to the Court of Appeal decision in the case of Eu Boon Yeap v. Ewe Kean Hoe [2007] 6 CLJ 791 where the facts bear striking similarity to the present case. The Court of Appeal decided that it is immensely important to specifically analyse the respective role of the witnesses in order to determine the issues and then have ruled there was no evidence produced to prove any of the four witnesses were actuated by any ulterior motive or collateral purpose to induce them to concort half-truths or untruths in relation to their respective role played by them. S/N afy0I9u7WUufNJTr3nhtug

In the instant case, there was no evidence produced by the Defendant to show that the Plaintiffs have exercised undue influence on the deceased. PW2 and PW3’s evidence proved that the deceased met them alone and instructed them to prepare the 2016 Will and 2018 Will respectively. PW3 informed that she met P1 for the first time when she accompanied the deceased to her office. P1 was seated outside when the deceased and PW3 were in the conference room to discuss the 2018 Will. PW1, PW2 and PW3 testified that the deceased came alone and not accompanied by anyone when he came and executed the 2016 Will and 2018 Will respectively.

Since P1 already the sole beneficiary under the 2016 Will, there was no reason for her to exert undue influence on the deceased to reduce her interest in the estate, by inducing the deceased to make the 2018 Will to include P2. The evidence of PW2 and PW3 has refuted the allegations made by the Defendant.

Further, there is no evidence to prove that PW2 and PW3 were actuated by any ulterior motive or collateral purpose to induce them to concort half-truths or untruths in relation to their respective role played as the solicitors engaged to prepare the will. They are independent witnesses and have no interest in the estate of the deceased. Thus, there is no rhyme or reason for them to lie in Court. The allegations of the Defendant is purely conjectures and speculation.

Additionally, I find no evidence of any illness of the deceased that could so affect his mental faculties such as to vitiate testamentary S/N afy0I9u7WUufNJTr3nhtug capacity when he executed the 2018 Will. Accordingly, there is no evidence to show that the deceased lacked testamentary capacity at the time he executed the 2018 Will.

As such, I am satisfied that the deceased was of sound mind and had testamentary capacity to give instructions and executed his 2018 Will.

I find the issue regarding whether the 2018 Will is fair and equitable is irrelevant to the crux of this matter. To rule so, I take guidance again on the case of Lee Ing Chin (supra) whereby it was ruled that whether a will is fair or equitable is not a relevant consideration. When determining the validity of a will, the court “is not concerned with the fairness of the will. A court must resist the natural temptation to set aside a will on the ground that it does not appear to be fair, equitable or just.”.

Further, I find the Defendant has failed to produce any evidence to prove that the deceased lacked the requisite testamentary capacity or he was insane. The Defendant witness, DW1 has during the cross-examination confirmed that the deceased was able to drive his own vehicle JFN 6438 right up to his death. DW1 also confirmed that the deceased was able to handle his own banking matters without any aid. Therefore, it can be concluded that the deceased was of sound mind and he was able to manage his own affairs prior to his death.

DW2 on the other hand, has alleged that the deceased was insane and thus lack of testamentary capacity. DW2 bear the burden to prove it. Reference is made to the case of Dew v Clark S/N afy0I9u7WUufNJTr3nhtug [1826] 3 Add. 79 where the Court held that the daughter who was left out of her father’s will bear the burden to prove that the father was insane. I find that DW2 has failed to provide any documents to support his allegations.

The evidence of PW4, DW1 and DW2 in fact established that the deceased carried out the ordinary routine as a normal individual and did his own banking and drove his own car. The Defendant has failed to prove that the deceased has suffered an insane delusion that affected his testemantary capacity.

Further, it is not the Defendant’s pleaded case that the deceased suffered from any delusion. The Defendant’s pleaded case is the deceased suffered a stroke in 2012 which has impaired his testamentary capacity. However, the evidence produced by the Plaintiff has clearly rebutted such allegations.

In Tob Weng Keong & Anor v Tob Chee Hoong [2019] MLJU 1435, the Court of Appeal explained that the question of suspicious circumstances in the making of a will is relevant in the context of the testator’s knowledge and approval of the contents of a will. In the said case, it was held as such— “[40] The question of suspicious circumstances in the making of a will is relevant in the context of the testator’s knowledge and approval of the contents of a will. A testator must know and approve of the contents of his will. Underlying this rule is the rationale that a will must be the result of a testator’s own intelligence and volition, though its contents need not originate from the testator provided he understands and approves them (Constable v. Tufnell (1833) 4 Hag. Ecc. 465). If the contents of a will originate from another person and the testator executes it in ignorance of its contents, the will is invalid (Hastilow v. Stobie (1865-69) LR 1 P & S/N afy0I9u7WUufNJTr3nhtug D 64). [41] English common law suggests that whilst the testator must know and approve of the contents of his will, he need not know its legal effect. Thus, if the testator does know and approve of the contents of his will, it is immaterial that he, or the draftsman employed by him, is mistaken as to its legal effect.”. [Emphasis added]

In this context, as quoted by the Court of Appeal in Tho Yow Pew & Anor v Chua Kooi Mean [2002] 4 MLJ 97 the reference from Theobald on Wills 18th edn. at p. 65 under the heading of “Knowledge and approval of contents of will” is particularly instructive: “(c) Suspicious circumstances If a will was prepared and executed under circumstances which raise a well-grounded suspicion that the will (or some provision in it, such as the residuary gift) did not express the mind of the testator, the will (or that provision) is not admissible to probate unless that suspicion is removed by affirmative proof of the testator’s knowledge and approval. A classic instance of suspicious circumstances is where the will was prepared by a person who takes a substantial benefit under it. Another instance is where a person was active in procuring the execution of the will under which he takes a substantial benefit by, for instance, suggesting the terms for the will to the testator and instructing a solicitor chosen by that person. However, circumstances can only raise a suspicion of want of knowledge and approval if they are ‘circumstances attending, or at least relevant to, the preparation and execution of the will itself.”. [Emphasis added]

Thus, it can be deduced that it is a recognized principle that the S/N afy0I9u7WUufNJTr3nhtug testator must know and approve of the contents of his will at the time when he executes it. It is sufficient if the testator knows and approves of the contents of his instructions to his solicitor for the preparation of a will as long as the said will was prepared in accordance to his instructions.

Through the testimony of PW2 and PW3’s evidence that it is clear that although the deceased suffered a stroke in 2012, he was not in any manner debilitated by the stroke. The deceased went to PW2 and PW3’s office on his own and without any aid. The deceased gave a clear and unequivocal instructions to PW2 to prepare 2016 Will and the tenancy contract, and also for PW3 to prepare 2018 Will. I find PW2 and PW3’s evidence were convincing and it remove any suspicions pertaining to the making of the 2016 Will as well as the latest 2018 Will by the deceased. PW3 has continue to communicate with the deceased till 18.06.2019, a week before the deceased passed away.

Further, the evidence of DW2 that the deceased knew what he was doing when he executed the inter vivos transfer this property to DW2 on 15.03.2013 which was shortly after the deceased suffered his stroke. The evidence of the PW4 that her father, the deceased recovered from the stroke is corroborated by the evidence of DW2. As such, the inter vivos transfer of this property to DW2 rebut the allegation made by the Defendant that there were suspicious circumstances in the making of the will and the deceased lacked testamentary capacity due to his stroke.

Accordingly, I find no suspicious circumstances in the preparation S/N afy0I9u7WUufNJTr3nhtug and execution of the Will.

Whether 2018 Will is the last will of the deceased and revoked all his previous will

In order to determine this issue, it is wise to reproduce the relevant provisions of the said 2018 Will for the ease of reference: THIS IS THE LAST WILL AND TESTAMENT OF ME, LEE POI SAM (NRIC NO.: 470113-01-5281 / 3522923) of LOT 2837, JALAN ALOR BUKIT, 81000 KULAI, JOHOR DARUL TAKZIM (Exhibit P-1 at pages 7-11 of Enclosure 7).

I HEREBY REVOKE ALL FORMER WILLS, codicils and Testamentary Dispositions herein before made by me and declare this to be my Last Will.

I HEREBY APPOINT WASUNAN TONRAB (THAILAND NATIONAL IDENTITY CARD NO: 1520100103239) (THAILAND PASSPORT NO: AB1005351) AND THITIMA SAE-LEE (THAILAND NATIONAL IDENTITY CARD NO: 1520100084111) (THAILAND PASSPORT NO: AA8187380) both of Lot 2837, Jalan Alor Bukit, 81000 Kulai, Johor to be the Executrixes of this Last Will.

…

I HEREBY GIVE BEQUEATH AND DEVISE to WASUNAN TONRAB (THAILAND NATIONAL IDENTITY CARD NO: 1520100103239) (THAILAND PASSPORT NO: AB1005351) AND THITIMA SAE-LEE (THAILAND NATIONAL IDENTITY CARD NO: 1520100084111) (THAILAND PASSPORT NO: AA8187380) jointly and equally, all my legal and beneficial rights, interests profits and benefits in the whole share of the Property held under GM 112 LOT 2838 IN THE MUKIM OF KULAI, DISTRICT OF KULAIJAYA, STATE OF JOHOR together with the building existing on the Land or to be erected on the Land (“the Property”), for which I have lodged a lienholders’ caveat over. The original title shall be kept by my beneficiaries and a lienholder’s caveat lodged over the Property. S/N afy0I9u7WUufNJTr3nhtug

I HEREBY GIVE BEQUEATH AND DEVISE to WASUNAN TONRAB (THAILAND NATIONAL IDENTITY CARD NO: 1520100103239) (THAILAND PASSPORT NO: AB1005351) AND THITIMA SAE-LEE (THAILAND NATIONAL IDENTITY CARD NO: 1520100084111) (THAILAND PASSPORT NO: AA8187380) the following jointly and absolutely:

5.1 all the remaining money or monies that may be in my savings account, fixed deposit account and current account with any financial bank or institution in Malaysia or anywhere else absolutely;

5.2 all the insurance money with any insurance company or the insurance policy or policies that I may have in my name and that becomes due and payable at my demise absolutely;

……..

I further declare that I deliberately have made no provisions for other beneficiaries who may be entitled or claim to be entitled and if any one of my beneficiaries, their heirs and/or personal representatives should severally or jointly contest my Last Will and Testament, then upon such occurrence, any such of them contesting shall each be entitled to a sum of Ringgit Malaysia One (RM1-00) only.

Clause 1 of the 2018 Will provides the revocation provision that all the deceased’s former will, codicils and testamentary disposition.

I refer to the case of Sothern v. Dening [1881] 20 Ch.D. 99 where it was held that— “The question I have to decide is as to the title of the Plaintiff to this moiety ... by will she [the testatrix], being at the time a married woman, exercises that power by appointing the moiety to the Plaintiff absolutely. Then she becomes a widow and makes a second will as follows: first she says, "I revoke all former wills." That must have reference to the first will, and S/N afy0I9u7WUufNJTr3nhtug nothing else, for there was no other will but the first. ... Now I have no hesitation in saying that this is a complete revocation of the prior testamentary appointment. First the testatrix revokes all former wills… The first question that arises on this wiII is, did it revoke the former wills entirely? The testatrix had made two previous wills, the second of which also contained a revocatory clause. First it is said that this third will does not revoke "all former or other wills," because it does not contain a complete disposition of her property, since it disposes of her personal estate only. But that it, to my mind, a novel doctrine. You can revoke a prior will without making any disposition at all; in fact, the words of revocation are put in for the express purpose. Conveyances put them in to get rid of all former wills altogether: they would be absolutely useless on the theory that they do not amount to a complete revocation. So well was this known, that the revocatory clause was retained in wills even after the passing of the Wills Act which expressly recognised the fact that the execution of another will was sufficient to revoke a former will.”. [Emphasis added]

Section 14 of Act 346 provides that— “No will or any part thereof shall be revoked otherwise than… by another will executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed.”. [Emphasis added]

In the instant case, the deceased has made it clear to the advocates who prepared the 2018 Will that there were previous Will made by him wherein the deceased himself brought a copy the 2016 Will to be revoked and changed accordingly. The S/N afy0I9u7WUufNJTr3nhtug revocation clause in the 2018 Will expressly provide that all previously wills made by the deceased will be revoked which will include the 2016 and 2005 Wills. The revocation clause was made pursuant to section 14 of Act 346.

As long as the 2018 Will is proven, it is rightful for me to refuse to take cognizance of the 2005 Will. In that matter, I agree with the Plaintiffs that the 2005 Will was revoked twice by virtue of the 2016 and 2018 Will.

Hence, it appears clear to me that the deceased knew and approved of the contents of the 2018 Will and the same was executed on his own intelligence and volition.

Therefore, based on the Sothern v. Dening(supra) and clause 1 of 2018 Will, the 2005 Will which the Defendant relies on has been revoked by the deceased.

Whether the land GM112 Lot 2838 was pledged in exchange of loan given by the deceased to the proprietor?

The Defendant contended that the deceased has executed the 2005 Will on 01.04.2005 to bequeath the GM112, Lot 2828, Kulai District, Johor (the “Subject Land”) to the Defendant and his siblings. The land title of the Subject Land was pledged by a proprietor of the land, Warjo bin Kajam (“the proprietor”) to the deceased’s late father, Lee Choo @ Lee Chau to exchange for the sum of RM2500.00 via the friendly loan agreement (IDD15) sometimes in year 1968. S/N afy0I9u7WUufNJTr3nhtug

The proprietor has failed to repay the friendly loan and consequently, the Subject Land should be transferred to the deceased’s late father. However, due to demise of the deceased’s late father no transfer of the Subject Land has been carried out. Subsequent thereto, the private caveat was lodged by the deceased’s late brother Lee Kong San@ Lee Cheong Sing 05.10.1990 [see pages 51-54 of Common Bundle of Document (“CBD”)] and 09.10.1996 (see pages 55-58 of “CBD”) with the grounds that he has granted a friendly loan of RM2500.00 without interest to the proprietor. The deceased also has entered private caveat in November 2002 and 28.04.2009 respectively and lien holder caveat on 12.02.2015. Thus far, the proprietor has not challenged on the caveat entered by the deceased or his late brother Lee Kong San @ Lee Cheong Sing.

The Defendant contended that the deceased was not in the capacity to grant loan to the proprietor since the deceased was about 18 years old and was not working during that time. There was no nexus between the deceased and the proprietor. The deceased was only the bare trustee for the Subject Land, the lien caveat entered by the deceased was invalid and should be struck off. Hence, the deceased was “bare trustee” and cannot transfer or sell his interest in the Subject Land to the Defendant and/or any beneficiaries of the late father of the deceased.

The evidence of DW1 and DW2 did not support their contentions that the Subject Land was pledged by the proprietor to the deceased’s late father to exchange for a loan granted as they S/N afy0I9u7WUufNJTr3nhtug were not able to confirm that their late father gave a friendly loan to the proprietor.

Hence, there is no direct oral evidence to prove this. In order for the Defendant to rely on the friendly loan agreement, IDD15, the Defendant must satisfy the requirements under section 73A of the Evidence Act 1950 [Act 56].

In this regards, I take guidance from the decision of the Federal Court in Allied Bank (Malaysia) Bhd v. Yau Jiok Hua [1998] 2 CLJ 33, where Augustine Paul JC (later FCJ) held: “There are certain conditions that must be satisfied before a statement can be admitted in evidence under s. 73A. I shall confine myself, on the facts of this case, to the position where the maker of the statement does not have personal knowledge of the contents of the statement within the meaning of s. 73A(1)(a)(ii) and is not available to give evidence as provided by the proviso to s. 73A(1)(b). The conditions to be satisfied are:

the statement must have been made in a document;

the original document must be produced;

the document in question is or forms part of a record purporting to be a continuous record (in so far as the matters dealt with thereby are not within his personal knowledge) and was made in the performance of a duty to record information supplied to the maker by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters;

the statement must not have been made by a person interested at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish; and

the maker of the statement must be dead, or unfit by S/N afy0I9u7WUufNJTr3nhtug reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and it is not reasonably practicable to secure his attendance1 or if all reasonable efforts to find him have been made without success. The language of s. 73A requires all the condition enumerated above to be satisfied.”. [Emphasis added]

Applying the principle of the case stated above, in order for IDD15 to be admitted, the conditions under section 73A of Act 56 must be fulfilled. Although the original of IDD15 was produced by DW2, the Defendant failed to proved the efforts have been taken to locate the proprietor or his successors. As such, the exhibit remain to be inadmissible.

There is contradictory version as to who has actually grant a friendly loan to the proprietor. Therefore, failure to call the proprietor or the successor of the proprietor to prove the existence of a friendly loan is fatal and may affect the lien holder’s interest. This issue can only be determined based on the testimony of the proprietor or the successor of the proprietor later in a separate proceedings.

Until and unless the parties manage to prove that the friendly loan agreement is valid and enforcebale, the interest of the deceased’s late father at the material time, if any, is merely the lien holder interest on the Subject Land.

Therefore, I rule that if the IDD15 is proven, the interest going to be inherited by the deceased or the Defendant from their late S/N afy0I9u7WUufNJTr3nhtug father is only lien holder interest in the Subject Land. As such, the deceased can bequeath his entitlement of lien holder interest in the Subject Land via 2018 Will to the Plaintiffs pursuat to section 3 of Act 349.

Section 3 of Act 349 provides that— “Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will.”’ [Emphasis added]

Further, clause 4 of the 2018 Will, the deceased has cleary stated that he has bequeathed his lien holder’s interest in the Subject Land to P1 and P2.

Following the ruling that the 2005 Will has been revoked by 2018 Will, the Defendant is not entitled to claim the deceased’s lien holder interest in the Subject Land. However, the Defendant and his siblings are still entitled to their portions of the Subject Land if they manage to prove the IDD15 and manage to transfer the Subject Land to their late father, then the Subject Land shall be distributed according to section 6 of Distribution Act 1958 [Act 300].

The declaration of this Court with regard to the validity of the 2018 Will will not in any way be considered that this Court recognizes the lien holder interest of the deceased on the Subject Land. The S/N afy0I9u7WUufNJTr3nhtug Plaintiffs need to prove the validity of the IDD15 vide separate proceedings.

Whether the deceased is only a trustee of the subject land and consequently, the deceased is not entitled to bequeath it under the 2018 Will?

Whether the 2005 Will was prepared pursuant to the understanding or agreement between the siblings concerning the Subject Land?

The Defendant contended the deceased was bare trustee who hold the Subject Land on trust for the benefit of the siblings and hence he was not entitled to bequeath it under the 2018 Will.

The Defendant bears the burden to prove the existing of trust. The Defendant claimed the trust is created based on the fact that the siblings made three (3) wills simultaneously through Mr. Tham.

In this regards, I refer to the Court of Appeal in the case of Tan Keng Yong & Anor. v Tan Hwa Ling & Ors [2022] 3 CLJ 274 applied the principles approved by the Federal Court in Lee Phek Choo v Ang Guan Yau & Anor [1975] 2 MLJ 146 where the Federal Court rule that in order to establish a trust, there must exist three certainties, that is, certainty of words, certainty of subject matter and certainty of objects.

I find none of the certainties are established by the Defendant. There is no written document to prove that the deceased hold the Subject Land on trust for the Defendant or his siblings. S/N afy0I9u7WUufNJTr3nhtug

The Defendant also contended there was an agreement between the siblings the Subject Land can be inherited by the sibilings only.

The testimony of DW2 contradicted with the documentary evidence produced in Court. DW2 claimed that there was three

wills were prepared by the legal firm, Messrs Derek K. T. Tham & Co., namely one prepared for the deceased on 01.04.2005, the other two (2) were prepared simultaneously on 01.07.2017 for the Defendant and brother of the deceased, Lee Kong San@ Lee Cheong Sing who has passed away on 04.01.2018. These wills were prepared to ensure the Subject Land be maintained, transferred and inherited by the siblings.

Upon perusal of the DW2’s Will (D16), there is nothing mention about the the trust or family arrangement for the Subject Land. What was mentioned in the DW2’s Will was a property held under HS(M) 20231, No. P.T. 19970, Mukim Ampang, Selangor together with a double storey terrace house with the address of No. 80, Jalan Cempaka 30, Taman Cempaka, 68000 Ampang, Selangor to be bequeath to his brother, Lee Moon and the property was not the Subject Land. Likewise in the Lee Kong San @ Lee Cheong Sing’s Will (D17), there was no reference made to the Subject Land and what was referred thereto in the said will was the property held under C. T. No. 14480, Lot No, 7545, Township and District of Johor Bahru, State of Johor Bahru together with a double storey bungalow house with the address of No. 3, Jalan Sepui, Taman Kolam Air, Johor Bahru to be bequeath to his brother, the deceased. S/N afy0I9u7WUufNJTr3nhtug

Further, I find that the land mentioned in the 2005 Will that the deceased agreed to transfer the property to the Defendant was the property held under GM 112, Lot 2837, Senai Kulai District, Johor and the said land is not the Subject Land as claimed by the Defendant. The said land has been transferred and registered in the name of the Defendant (see page 15 of the CBD). The Defendant has misconceived and is confused over the particulars of the Subject Land.

Further, I find that the IDD13 was made on 01.04.2005 whereas the other two (2) wills were made on the same day, namely 10.07.2007. The three (3) wills were not made simultaneously and it has refutted the Defendant’s contention.

I find the testimonies of DW1 and DW2 that there was an oral agreement between all the siblings was not supported by the documentary evidence, IDD13, D16 and D17. There is no independent evidence adduced to support the Defendant’s contentions. Mr. Tham Kok Toh who was the solicitor prepared the three (3) wills was not called as a witness and there is no explanation for the failure to do so. The Defendant’s counsel only produce a copy of email from Bar Council dated 02.03.2023 to state Mr. Tham Koh Toh has ceased practice and his whereabout was unknown. No efforts was shown to locate Mr. Tham Kok Toh except an email from Bar Council. Therefore, I rule that IDD 13 is inadmissible as the Defendant has failed to satisfied the requirements under section 73A of Act 56.

The Plaintiff argued that if Mr. Tham Kok Toh was called, it will S/N afy0I9u7WUufNJTr3nhtug prove that there was no such family arrangement made between the siblings and urged the Court to invoke section 114(g) of Act 50 against the Defendant. I find that there is no evidence to suggest that the Defendant suppress or withhold the evidence by not calling Mr. Tham Kok Toh and hence, section 114(g) of Act 50 is not applicable. Nonetheless, DW1 and DW2 have failed to prove there was a family arrangement between the siblings. In any event, this issue become non-issue following the decision of this Court that the 2018 Will is the last will and testament of the deceased.

I further find that DW2 has not taken any action either to lodge a police report or protest or challenge when the deceased informed the Defendant that he intends to sell his lien holder interest in the Subject Land and requested the Defendant to vacate the Subject Land. The Defendant only claimed interest in the Subject Land after the demise of the deceased and after the Plaintiffs applied for probate of 2018 Will. The police report lodged by the Defendant after the death of the deceased did not state that the lien holder interest was the subject of the family arrangement. If the allegation of the DW2 that the deceased has usurped the Subject Land and has illegally sold it, he would have made a police report at that time. Therefore, it can be concluded that DW2 knew there was no basis to do that and the Defendant’s claim over the lienholder interest is an afterthought.

The evidence of PW4 is consistent with the testimonies of PW2 and PW3 that the deceased never informed them about the family arrangement as alleged by the Defendant. PW3 informed that the S/N afy0I9u7WUufNJTr3nhtug deceased wanted his will to expressly state he has a lien holder’s interest over the Subject Land. The fact that the deceased would like to sell his lien holder’s interest in the Subject Land has been confirmed by PW3 and DW2. It further reinforces that the alleged family arrangement is an invention after the demise of the deceased. I rule that the contentions of the Defendant devoid of merits.

The Defendant has raised other issues, inter alia, that the Plaintiffs are not the daughter of the deceased. I refer to paragraph 4(c ) of the Defence and Counter Claim, the Defendant averred that through the marriage of the deceased, the Plaintiffs are the daughter of the deceased. Therefore, the Defendant is estopped from raising this issue during the trial.

With regards to the photographs of background of the Subject Land marked as IDD18 (page 106 to 112 of CBD), I rule it is not admissible as the photographs were taken by the Defendant’s friend and he was not call as the witness.

The Affidavit affirmed by Mr. Tham Kok Toh (also known as Derek Tham) remain to be marked as IDD27 since the witness was not call as witness by the Defendant and as ruled in paragraph 91 above, the Defendant has failed to fulfil the requirements under section 73A of Act 56. S/N afy0I9u7WUufNJTr3nhtug

To sum up, in the instant case, I find that the Plaintiffs have succeeded in proving due execution of the 2018 Will. It is to be noted that PW1 and PW3 are in fact independent witnesses wherein these two witnesses were directly involved in the making and execution of the 2018 Will. They take no benefit under the Will, and their evidence therefore holds massive weight.

On the issue of testamentary capacity, I find that the Defendant was unable to show that the deceased lack testamentary capacity. Besides, I am of the view that the purported suspicious circumstances raised by the Defendant, were not proven, and therefore cannot amount to suspicious circumstances to invalidate the will.

In this premise, I find that the Plaintiffs have successfully proved their case on the balance of probabilities. Accordingly, I allow the Plaintiffs’ claim as follows:

a declaration that the last will of Lee Poi Sam, the deceased is the Will dated 17.07.2018 dan the Will dated 01.04.2005 be revoked and invalid;

caveat obtained pursuant to Court Oder via Kuala Lumpur High Court suit no: WA-Kaveat-1824-07/2019 be revoked;

grant of probate to the Plaintiff based on the last will of the deceased dated 17.07.2018 be maintained; and

costs of RM 10,000.00 subject to allocator fees, to be paid by the Defendant to the Plaintiffs. S/N afy0I9u7WUufNJTr3nhtug

The Defendant’s counter claim was dismissed with no order as to costs. Dated 25 August 2025 Signed by: …………………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel for the Plaintiffs: Mr. R. Param with Dr. Clarence Edwin and Ms. Diyana Kadir Counsel for the Defendant: Mr. Ungku Ahmad Hafis and Ms Norsuryati Binti Abd Karim S/N afy0I9u7WUufNJTr3nhtug