Charanjeet Kaur A/p Sukhbir Singh v Zhao Jingkun (B-02(NCvC)(A)-88-01/2023)

This appeal arises from a probate dispute concerning the estate of the deceased, Dennis Charles Sen. The primary contention is 23/06/2026 11:15:24 B-02(NCvC)(A)-88-01/2023 Kand. 32 between the Plaintiff (Appellant), Charanjeet Kaur a/p Sukhbir Singh, and the Defendant (Respondent), Zhao Jingkun. The defendant is the second wife of the deceased and the named executrix of his final Will dated 2014.

The deceased and his first wife, Jaspal Kaur, executed similar Wills in the year 2007 (the 2007 Wills), naming each other and the plaintiff as executors. Following Jaspal’s death in 2008, the deceased married the defendant in 2012. In 2014, the deceased executed a new Will (the 2014 Will), which revoked all prior dispositions and named the defendant as the sole beneficiary and executrix.

The plaintiff contends that the 2007 Wills were Mutual Wills, born of a binding, irrevocable agreement between the deceased and his first wife. Consequently, she argues the deceased was legally barred from revoking the 2007 Will, rendering the 2014 Will invalid. Conversely, the defendant maintains the 2007 Wills were merely Mirror Wills (identical but revocable) and that the 2014 Will stands as the valid final testament.

The doctrine of Mutual Wills is an exceptional legal concept. As established in Hiroto Watanabe v Law Yen Yen [2012] 1 AMR 344 and Gray v Perpetual Trustee (1928) AC 391, the mere existence of simultaneous or identical Wills is insufficient to establish mutuality.

The case of Gray is a foundational Privy Council authority, an appeal from Australia that remains a cornerstone for Commonwealth jurisdictions, including us. In that case, husband and wife executed simultaneous Wills in identical terms. Each gave the other a life interest in their estate, with the remainder going to their granddaughters. After the husband died, the wife executed a new Will that changed these dispositions. It was decided that the mere fact that two people make mirror or simultaneous Wills is not evidence of an agreement that those Wills should be irrevocable. Therefore, the outcome is, for the doctrine of Mutual Wills to apply, there must be a definite agreement between the parties that the survivor will not revoke their Will. Without proof of such a contract, the survivor retains their testamentary freedom to change their mind.

Foundational authorities such as Dufour v Pereira 21 ER 332 and Re Goodchild (1997) 1 WLR 1216 emphasize that without a specific, proven agreement, testamentary freedom prevails. Mirror Wills remain inherently revocable at the discretion of the surviving testator. The English Court of Appeal case of Re Goodchild is often cited to clarify the standard of proof required to override a later Will. In that case husband and wife made mirror Wills leaving their estates to each other, and then to their son. After the wife died, the husband remarried and made a new Will leaving everything to his second wife, effectively disinheriting his son. The son argued there was a mutual agreement. The court found that while both parents intended and expected the son to inherit, they had not entered into a legally binding contract to that effect. The court had distinguished between a loose moral obligation, which is unenforceable and a clear contractual undertaking which is enforceable. It emphasized that the floating trust of a mutual Will only crystallises if there is clear and satisfactory evidence of an agreement to be bound. In that case, the claim for mutual Wills failed because there was no evidence that the parties intended to create a legally binding, irrevocable arrangement. In the present case, because there was no written agreement or express clause in the 2007 Wills stating they were irrevocable, they remained Mirror Wills. This has allowed the deceased to exercise his testamentary freedom in 2014 after his circumstances changed through remarriage.

To succeed, the plaintiff must satisfy a heavy burden of proof by clear and satisfactory evidence that:

There was a contractual agreement between the parties not to revoke the Wills.

(ii) This agreement was intended to be binding and irrevocable upon the death of the first spouse. Evaluation of Evidence and Credibility of Witness

The plaintiff’s case relied heavily on the oral testimonies of four witnesses, PW1 to PW4. However, the High Court correctly identified significant evidentiary gaps:

The 2007 Wills contained no express clause of irrevocability, nor was there any contemporaneous written evidence, in the form of file notes or collateral agreements, to support the claim of a binding contract.

(ii) The court noted that PW1, the drafter cum beneficiary and PW3 the intended beneficiary of the Subang Jaya house, had a significant personal stake in the outcome. Their evidence was deemed self-serving and lacked corroboration.

In contrast, the defendant’s witnesses DW3 and DW6, provided disinterested testimony. DW3 brother of the deceased and DW6 a legal professional and friend testified that the deceased was surprised by the plaintiff’s claim of mutuality and consistently maintained that the 2014 Will reflected his true final intentions, specifically that the defendant should inherit the Subang Jaya house.

The Learned High Court Judge dismissed the plaintiff’s claim in Suit 361 and granted probate to the defendant in OS 231 on the following grounds:

There was no evidence of a positive legal duty preventing the deceased from changing his Will.

(ii) Upon Jaspal Kaur’s death, the deceased inherited her share of the Subang Jaya house absolutely, granting him the legal right to dispose of it as he saw fit.

(iii) Because the element of irrevocability was not established, no trust could be imposed upon the estate to favour the 2007 beneficiaries. Findings and Conclusion of this Court

In our jurisdiction, pursuant to section 12 of the Wills Act 1959 (Act 346), marriage acts as a legal reset for testamentary intentions. Every Will made by a man or woman shall be revoked by his or her marriage. When the deceased married the defendant in 2012, any prior Will, including the 2007 Wills was revoked by operation of law, unless it was expressly stated to be made in contemplation of marriage to that specific person. This reinforces the defendant’s position that the 2007 Wills were no longer valid legal instruments once the new marriage was contracted.

Further, section 14 of the same Act provides that the testator with the testamentary freedom may change his mind through a formal act. The rule is no will or any part thereof shall be revoked otherwise than as provided by section 12, vide marriage, or by another Will or Codicil executed in a manner as required or by some writing declaring an intention to revoke the same, and executed in the manner in which a Will is required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same. In the present case, the 2014 Will explicitly contained a revocation clause. By executing this document, the deceased legally cancelled all previous testamentary intentions. The court has correctly prioritized the most recent validly executed 2014 Will as the true reflection of the testator’s last mind.

Section 18 of the same Act, determines when a Will takes effect and what property it covers. The rule is every Will shall be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the Will. The High Court had applied this principle of law to show that at the time of the death of the deceased, his last word was the 2014 Will. In this respect, the plaintiff failed to prove a contrary intention, i.e. the existence of a binding mutual agreement that would have frozen the 2007 Wills in time.

Therefore, the provisions of the Wills Act 1959 lean heavily in favour of the defendant. Without a written, contractual Mutual Will clause to bypass section 12 and section 14, the law views the marriage and the 2014 Will as the definitive legal conclusion to the estate planning of the deceased.

A point of pleading canvassed by the learned High Court Judge, which goes against the case of the plaintiff is that there is no specific plea made by the plaintiff in her Statement of Claim that the deceased and his first wife had instructed her to prepare irrevocable Wills and that she had explained to both of them that the surviving spouse could not revoke his or her respective Will after the death of the other spouse. Hence, the pleaded case of the plaintiff is that the 2007 Will of the deceased and his first wife’s 2007 Will are not implicitly or impliedly mutual Wills. The pleaded case is only that the plaintiff was purportedly instructed by the deceased and his first wife to prepare mutual Wills. It is trite law that the plaintiff is bound by her pleading, thus estopped from raising otherwise at the trial.

In summary, the case of the plaintiff fails to meet the high legal and evidentiary thresholds required to establish the existence of the Mutual Wills. The court’s findings are anchored on three inescapable pillars:

Under section 12 of the Wills Act 1959, the deceased’s marriage to the respondent in 2012 automatically revoked the 2007 Wills by operation of law. Without a written agreement proving the Wills were irrevocable, they remained mere Mirror Wills subject to the standard rules of revocation.

(ii) The plaintiff provided no contemporaneous documentary evidence to wit file notes, correspondence and there is no express clause to prove a binding contract existed. Oral testimonies from interested parties, recollected fifteen years after the fact, cannot override the clear, written terms of a subsequent, validly executed Will in 2014.

(iii) The 2014 Will represents the final, speaking intention of the deceased under section 18. To elevate a spousal Mirror Will to a Mutual Will without a strict, cogent proof would be to undermine the fundamental right of a testator to change his mind as his life circumstances evolve.

The role of this court is to determine if there was a proper judicial appreciation of evidence by the trial court, as decided in the case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors reported at [2005] 2 CLJ 1 FC as follows: … the central feature of appellate intervention, i.e. to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase ‘insufficient judicial appreciation of evidence’ merely related to such a process. This is reflected in the Court of Appeal’s restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole of any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, i.e. that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal …

In the same case, at the Court of Appeal, incidentally also a case on construction of Wills, reported at [2003] 2 MLJ 97 at page 116, it was decided by His Lordship Gopal Sri Ram JCA (as he was then) that a trial judge when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. He must also test the evidence of a particular witness against the probabilities of the case. Emphatically, His Lordship had decided that a trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal and it does not matter whether the issue for decision is one that arises in a civil or criminal case, as the approach to judicial appreciation of evidence is the same. So, is the situation in the present case, premised on the analysis and findings made, as elaborated above, there has been proper judicial appreciation of evidence and the ultimate fact that the 2014 Will prevails, is in accord with the law and the language of the Will, and nothing else. There has been no contrary intention by the deceased testator.

I find that the Learned Judge did not err in fact or law. Her Ladyship correctly applied a cautionary approach to the testimony of interested parties and weighed them against the probabilities of the case. No error of law or fact was committed by the learned judge and the probabilities of the case tilt decisively in favour of the defendant, respondent, with the foregone conclusion that the 2014 Will is the sole, valid testament governing the distribution of the estate of the deceased.

In view of the foregoing reasons and findings, no appealable error is found in the decision of the High Court, justifying appellate intervention. The appeal is therefore dismissed and the decision of the High Court is affirmed. Dated: 29 May 2026 -sgd- (MUNIANDY KANNYAPPAN) (JUDGE)