Lynette Mei LI Ponniah v LIM Swee Gin (WA-22NCVC-62-02/2017)

Samuel Vincent Ponniah (―Deceased‖) was a former Advocate and Solicitor of the High Court of Malaya. He was with the firm of Advocates & Solicitors known as Messrs Braddell & Ramani in the early years of his practice and was later a partner in the firm of Messrs Ng Ek Teong & Partners. The Deceased will be known to many of the more senior members of the Bar. He unfortunately passed away on the 28th of January 2015. The Plaintiff is the biological daughter of the Deceased. This case concerns the Plaintiff‘s claim to be entitled as a beneficiary to 2 the Deceased‘s residuary estate. The Defendant is the executrix of the Deceased‘s estate and also his wife at time of the Deceased‘s demise.

The Plaintiff is the biological issue of a union between the Deceased and one Lim Kim Yoke (―Linda Lim‖). Sometime between late 1966 and early 1967, the Deceased and Linda Lim underwent what was said to be a Chinese customary ―tea ceremony‖ to celebrate their marriage. Among those present at this tea ceremony were the Deceased‘s sisters Vivian Joy Ponniah and Ivy Ruth Ponniah and the sisters testified at the trial as witness ―PW1‖ and ―PW2‖ respectively. Both PW1 and PW2 had each affirmed a statutory declaration and their respective statutory declarations were admitted into evidence in bundle of documents marked as ―Bundle B‖, which consisted of documents the authenticity of which were not disputed, but their contents were not admitted.

PW1 testified that their father was of Indian descent and was born in Malaysia. Their mother was of Chinese origin and was described by PW1 as a Chinese Hakka from Melaka. PW1 and PW2 testified that their parents were Christians and the children had a Christian upbringing. However, both PW1 and PW2 testified that the Deceased was not a practising Christian. He was described by PW2 as a free thinker. The sisters testified that the tea ceremony was held at a flat rented by the Deceased known as Sam Mansions, in Kuala Lumpur. It was a simple ceremony. They remembered that tea was served, ―ang pows‖ i.e. red packets, were given and ―aunties‖ were present to assist 3 in guiding the couple through the process, though not much guidance was required as it was a simple ceremony. Although both PW1 and PW2 were uncertain of the exact date of tea ceremony however, they were adamant that it did take place and it took place towards the end of 1966 or early 1967. At that time, the Deceased who was born in November 1938, would be just over 28 years of age. After the tea ceremony, Linda Lim stayed with the Deceased at his Sam Mansions flat.

The Plaintiff was born on the 20th of October 1968. Her birth certificate was in the bundle of documents the authenticity of which was not challenged. She was named Mei Li, the Deceased was named as her father and Linda Lim named as her mother. She has a Malaysian National Registration Identity Card bearing No. 681020-10-6854 and her name therein stated is ―LYNETTE MEI-LI PONNIAH‖. There was really no evidence to suggest that the Plaintiff was not the issue of the union between the Deceased and Linda Lim.

Unfortunately the Deceased‘s relationship with Linda Lim did not last long. A few months before the Plaintiff‘s first birthday, Linda Lim left, leaving behind the Plaintiff to be in the sole care of the Deceased. It then came to be that the Plaintiff was raised by the Deceased to adulthood, initially at Sam Mansions and subsequently, apart from a relatively brief period, at the Deceased‘s house at No. 11A, Lorong Mempoyan, Damansara Heights, 50490 Kuala Lumpur (―Damansara Property‖). 4

Sometime around 1970, the Deceased married one Caroline Wulf. In his application form for migration to Australia, the Deceased stated in a form provided, that the period of this marriage was from 17th October 1970 to 18th November 1976. In this form the Deceased indicated that this marriage was under the Christian Marriage Ordinance of 1956 and he stated that the marriage ended in a divorce. The Defendant, who testified at the trial as DW1, stated in her witness statement that she was told by the Deceased that, ―…he was married to one Caroline Wulf in 1970 under the Christian Marriage Ordinance 1956 but had divorced her in 1976.‖ Thus, the Deceased‘s marriage to Caroline Wulf is not disputed and in any event, that marriage has no particular relevance to the issues in dispute in this suit.

On the 16th of December 1991, the Deceased married the Defendant. Their marriage was registered in accordance with the provisions of the Law Reform (Marriage and Divorce) Act 1976 which only came into effect on the 1st of March 1982. In her witness statement, DW1 stated that she used to be taken to the Deceased‘s house and she would see the Plaintiff there as a young girl. She testified that she was told that the Plaintiff was born out of wedlock and that her mother, Linda Lim, was someone whom the Deceased had merely cohabited with, without having undergone any form of formal marriage. The Plaintiff, who testified as PW3, recalled having met the Defendant in 1986 when she was living with the Deceased in the Damansara Property. The Plaintiff was about seventeen years old then. Both the Plaintiff and the Defendant never maintained any close relationship. While the Plaintiff was in Australia, she was informed by her father that he was going to marry the Defendant. After the marriage, 5 the Plaintiff and the Defendant never kept in touch or corresponded. The Plaintiff testified that when she returned from Australia, although they got along, it was nevertheless difficult at times. However, she described their relationship as being cordial. Both the Plaintiff and Defendant testified that their relationship became more difficult after the demise of the Deceased. The Defendant is about four years older than the Plaintiff.

It was an agreed fact that upon his demise, the Deceased left behind a will dated the 3rd of April 2014 (―Will‖). It was also an agreed fact between the parties that at the time of his death on 28th of January 2015, the Defendant was the wife of the Deceased. The Will has only four clauses. The first clause, clause 1, appoints the Defendant as the sole executrix of the Deceased‘s estate: ―1. I appoint my wife LIM SWEE GIN, Singaporean I.C. No. S 1659455 E of Lorong Mempoyan, Damansara Heights, 50490 Kuala Lumpur to be the Sole Executrix of this my WILL.‖ Clause 2 of the Will states as follows: ―2. I bequeath all that property known as No. 11A, Lorong Mempoyan, Damansara Heights, 50490 Kuala Lumpur, held under title deed Geran 34369 Lot 9099 in the Mukim and District of Kuala Lumpur and State of Willayah Persekutuan absolutely.‖ This property shall hereinafter be referred to as the ―Damansara Property‖. However, it is not stated in the Will to whom the Damansara Property was devised. 6 Clause 3 of the Will states as follows: ―3. I bequeath all that property known as No. 370 H Alexandra Road # 02-08 the Anchorage, Singapore 159961 to my wife absolutely.‖ Clause 4 of the Will states as follows: ―4. I give all the monies in my Current Account No. 514123612029 with Maybank Bangsar Baru, Kuala Lumpur and in my Current Account No. 0002263289 with ANZ Singapore to my wife absolutely.‖

There was no residuary clause in the Will that would provide for the distribution of the Deceased‘s residuary estate or the distribution of any asset that was not properly bequeathed or devised to any identifiable beneficiary. The absence of such a clause in the Deceased‘s Will therefore provided the reason, and basis, for the claim in this suit. The Plaintiff, being the daughter of the Deceased, claimed to be entitled as a beneficiary to the residuary estate of the Deceased under the provisions of the Distribution Act 1958 (Act 300) (―Distribution Act‖).

What had not been included in the Will were (i) a house in Melbourne, Australia, owned by the Deceased with the address 5/2 Newton Street, Chadstone VIC 3148, Australia (the ―House in Australia‖) and (ii) a sum of RM2,433,900.00 owed by Dato‘ Syed Mustaffa Bin Syed Abdullah to the Deceased following a Deed of Settlement Agreement dated the 8th of April 2009. 7

The Defendant testified that there was a prior will left behind by the Deceased referred to as the Australian Will. This Australian Will was however dated 13th January 2011. The Defendant testified that no probate had been taken out in respect of the Australian Will. The reason for this, given by the Defendant, was because she could not find the witnesses. The Defendant had been advised by her Australian solicitors that without the witnesses, probating the Australian Will in Australia will be cumbersome.

Probate in respect of Will was granted to the Defendant on the 29th of May 2015. In an application for the grant of probate, it is a requirement under Order 71 of the Rules of Court 2012 that persons alleged to be entitled to share in the distribution of the estate of a deceased is to be identified and how such a person is said to be related to the deceased should be stated. However, in her application for grant of probate, the Plaintiff failed to name the Defendant as a beneficiary to the Deceased‘s residuary estate. The Defendant maintained that the Plaintiff was an illegitimate daughter of the Deceased and was not entitled to be a beneficiary under the Distribution Act.

In the light of the foregoing the Defendant has sought inter alia an order that the Will be rectified such that the Defendant‘s name be added as the sole beneficiary of the Damansara Property and the sum of RM2,433,900.00 said to be owing by Dato‘ Syed Mustaffa bin Syed Abdullah to the Deceased. 8 Was the Deceased’s marriage to Linda Lim lawful?

The evidence tendered in Court through the sisters of the Deceased was that the Deceased and Linda Lim had gone through a Chinese customary tea ceremony in late 1966 or early 1967 to solemnise their union and marriage. Besides PW1 and PW2, no one else was called to testify who was present at that tea ceremony. The testimony of PW1 and PW2 on this issue was challenged by learned counsel for the Defendant. However, in my opinion, these witnesses were firm and adamant that the tea ceremony did take place. Learned counsel for the Defendant, in his submissions, suggested that PW1 and PW2 are interested persons. I do not see how that is so. They have no interest, either under the Deceased‘s Will or the Distribution Act 1958.

There is, also in evidence, a statutory declaration affirmed on 14th September 2015 by one Dr John Danaraj Ponniah, who is the brother of the Deceased. His statutory declaration is also in the bundle of documents in respect of which their authenticity were not challenged but their contents not agreed to. Dr John Danaraj Ponniah did not testify at the trial. In addition, in his statutory declaration, he states candidly that although he was invited, he did not personally attend the tea ceremony. He therefore could not, and did not, testify as to the tea ceremony.

Learned counsel for the Defendant pointed to the discrepancy of the dates given in respect of the alleged tea ceremony and customary marriage. Reference was made to the document that the Deceased completed for his application to migrate to Australia. This 9 was in 1991. In that document, the question posed was ―14. Have you previously been married or been in a de facto/Common Law Relationship?‖ In the details given by the Deceased, he stated that the name of his previous spouse was LIM KIM YOKE, and beneath the name, in parenthesis, he stated ―(de facto/Common Law Relationship)‖. He then went on to state that the marriage or relationship started in ― ‗67‖ and ended in ― ‗69‖ and, as to how it ended, the Deceased stated that it ended by ―MUTUAL CONSENT‖. He also stated that there was one child out of the union. There was also a second application by the Deceased for migration to Australia, but this time as a parent. In this application he stated in the affirmative to the question ―Have you previously been married or been in a de facto/Common Law Relationship?‖. He also stated the name of ―LIM KIM YOKE‖ and that the period of marriage or relationship started on the 1st of March 1967 and ended on 31st December 1969. As to how the relationship ended, the Deceased stated ―MUTUAL DEFACTO SEPARATION‖. With this evidence, learned counsel for the Defendant maintains that the Deceased himself did not maintain that he and Linda Lim were legally married. Legally, counsel for the Defendant maintained that because the Deceased was a Christian, his alleged marriage to Linda Lim by way of Chinese customary marriage was null and void due to the provisions in the Christian Marriage Ordinance 1956. In this regard, contrary to the testimony of PW1 and PW2, the Defendant testified that the Deceased was a staunch Christian and lived a Christian life. She testified that the Deceased would describe himself as being fearful of God. 10

Having regard to the evidence that was led and the cross examination of PW1 and PW2, I am of opinion that the Deceased and Linda Lim did undergo a Chinese customary tea ceremony to celebrate and solemnise their marriage. It should not be overlooked that the Deceased himself saw it necessary to disclose his relationship with Linda Lim in both his applications to migrate. Contextually, Chinese customary marriages were not statutory in nature and given the question posed in the migration forms, the description ―common law relationship‖ is not obviously incorrect. More significantly, in both migration forms, the Deceased stated ―LIM KIM YOKE‖ under ―Name of previous spouse‖. It therefore falls to be considered if the Chinese customary tea ceremony between the Deceased and Linda Lim gave rise to a valid and lawful marriage between them.

At the time of the tea ceremony, at any rate prior to 1st March 1982, the matrimonial regime in Malaysia was very different. Polygamous marriages and customary marriages were recognised. However, as pointed out by learned counsel for the Defendant, in relation to Christians, there was the Christian Marriages Ordinance of 1956.

The preamble to the Christian Marriage Ordinance of 1956 describes it as being, ―An Ordinance to regulate the solemnisation of Christian marriages throughout the Federation of Malaya and to provide for the registration of such marriages‖. Based on its preamble, this Ordinance is expressed to be concerned only with ―Christian marriages‖. Section 2 of this Ordinance defines ―Christian‖ to mean, ―…a person professing the Christian religion;‖ Section 3 provides as follows: 11 ―3. Every marriage between Christians and every marriage between persons one of whom is a Christian shall be solemnised in accordance with the provisions of either of this Ordinance or of the Civil Marriage Ordinance, 1952, and every such marriage solemnised otherwise than as provided in this section shall, subject to the provisions of this Ordinance or the Civil Marriage Ordinance as the case may be, be void.‖

In Re Loh Toh Met, Decd. Kong Lai Fong & Ors v Loh Peng Heng (1961) 1 MLJ 234 the deceased was survived by three women whom he married in accordance with Chinese custom. The deceased died intestate. The learned Trial Judge held that the deceased was a person professing the Christian religion and since his marriage to the three women were not in accordance with the provisions of the Christian Marriage Ordinance of the Straits Settlements and of the Christian Marriage Enactment of Johore, his three marriages were void. In the judgment of Thomson CJ in the court of Appeal, his Lordship stated, at p 244 of the report, that: ―Section 3 provides that ―every marriage between persons, one or both of whom is or are a Christian or Christians‖ (that is by the definition section ‗persons professing the Christian religion‘) which is solemnised otherwise than in accordance with the provisions of the Ordinance ―shall be void‖. In fact, section 3 of the Christian Marriage Ordinance (Chapter 82) states as follows: ―3. Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with section 4, and any such marriage solemnized otherwise than in accordance with such section shall be void.‖ 12 Section 3 of the Christian Marriage Enactment of Johore states as follows: ―3. Every marriage between persons one or both of whom is or are a Christian or Christians shall be solemnized in accordance with the provisions of the next following section; and any marriage solemnized otherwise than in accordance with those provisions shall be void.‖ To my mind, although not identically worded, section 3 of the Christian Marriage Ordinance (Chapter 82), section 3 of the Christian Marriage Enactment of Johore and section 3 of the Christian Marriage Ordinance of 1956 are not materially different. After a detailed and careful analysis, the learned Chief Justice in Re Loh Toh Met, Decd. Kong Lai Fong & Ors held as follows, at page 245 of the report: ― Returning now to the Straits Settlements Christian Marriage Ordinance, this purports to consolidate the law relating to Christian marriage and in my view for reasons which were stated at length in the case of Dorothy Yee, which was a case relating to the jurisdiction of the Court in divorce, the Christian marriage in question means monogamous marriage. The Ordinance deals not with marriage in general but only with the single definite type of relationship which can be described as Christian or monogamous marriage. It has nothing to do with any other type of relationship which is known by another name. It has nothing whatsoever to do with the Muslim type of polygamous marriage nor with the Chinese type of polygamous marriage. It deals with monogamous marriage and monogamous marriage only. … From the foregoing it is clear that the whole object, purpose and scope of the Ordinance is to provide a code of law governing the solemnisation of Christian or monogamous marriages and the true effect of section 3 is clearly to avoid as such any purported 13 Christian or monogamous marriage not solemnised in accordance with the provisions of the Code. It has nothing whatsoever to do with such matters as capacity to marry nor, what is more important for the purposes of the present case, does it affect in any way the capacity of any individual, which he otherwise enjoys, to enter into a marital relationship of some other sort. In particular, coming back to what has been said regarding Chinese polygamous marriages, it would in my view be impossible to read into the Ordinance anything which would forbid a Chinese to enter into the type of matrimonial relationship which, as has been seen, is open to the members of the community to which he belongs. Still less is there to be read into it anything that would invalidate any such relationship when freely and voluntarily and properly entered into. I am, of course, well aware that this is contrary to the view of Sir Charles Murray-Aynsley in the case of In re Henry Lee Fow Lee where he held that where a woman had gone through a form of marriage with a Chinese man domiciled in Singapore who was a Christian otherwise than in accordance with the Ordinance the marriage was invalid. Reluctant as I am to differ from a Judge whose reputation stands so high in our legal history, I feel compelled to do so and I am bound to observe that in the first place his Lordship gave no reasons for his opinion and in the second place it would appear that in the case the question was not very thoroughly discussed.‖ (Emphasis added) Hill JA in concurring with the learned Chief Justice stated, at page 249 of the report, as follows: ― It is clear beyond doubt that the only valid monogamous marriage a Christian could contract was as provided for in these two laws, but nowhere in them is a polygamous marriage by a Christian forbidden if his personal law based on his race recognises polygamy. If a person is a Christian and at the same time his personal law based on his race recognises polygamous marriages, surely he 14 is free to choose whether he will contract as a Christian a valid monogamous marriage or to form a valid polygamous union or unions in accordance with his personal law. If it was the intention in either of the Christian Marriage laws under consideration to forbid to such a person valid polygamous unions, that object in my view was not achieved. Nowhere is such a marriage expressly or impliedly forbidden.‖ While it is clear that prior to the coming into force of the Law Reform (Marriage and Divorce) Act 1976, customary marriages were held to be valid in law and this is notwithstanding the fact that they may be polygamous (See Re Lee Siew Kow, Deceased Yeo Siew Neo (W) v Gan Eng Neo (W) & Ors [1952] 1 MLJ 184 and Dorothy Yee Yeng Nam v Lee Fah Kooi [1956] MLJ 257], that is not quite the issue at hand. The issue at hand is whether section 3 of the Christian Marriage Ordinance of 1956 may be interpreted in the same manner as section 3 of the Christian Marriage Ordinance of the Straits Settlements as did Thomson CJ in Re Loh Toh Met, Decd. Kong Lai Fong & Ors. As to this, Thompson CJ suggested that it can be. This was in Re Ding Do Ca, Decd. [1966] 2 MLJ 220 at p 223 where Thomson, now Lord President of the Federal Court, observed: ― There is, however, nothing in the Christian Marriage Enactment (or the later Christian Marriage Ordinance) corresponding to the provision of the Civil Marriage Ordinance, 1952, (section 4), which in terms renders a party who has married under it incapable during its continuance of contracting a polygamous marriage. And in Loh Toh Met's case it was said that the personal law of Chinese domiciled here resulted from their race and not from membership of any religious community. On the face of it, then, there is nothing in the Christian Marriage Enactment that deprives a Chinese man who marries under it from exercising the right which he enjoys by reason of his personal law to enter into a polygamous union with another woman while his monogamous wife is still alive and, as his personal 15 law stems from race and not from religion, there can be no question of his earlier marriage as a professing Christian being treated as evidence of some sort of notional change of domicile involving some change in his personal law.‖ (Emphasis added) The ―later Christian Marriage Ordinance‖ would be the Ordinance that we are concerned with in this case, the Christian Marriage Ordinance

It would seem that in his Lordship‘s view, the 1956 Ordinance too, did not prohibit a Christian from entering into a polygamous customary marriage. In Re Ding Do Ca, Decd the deceased had married one Madam Wong under the Christian Marriage Enactment and subsequently, in 1937, he went through the form of marriage according to Chinese custom with Madam Ngoi. The Federal Court held that there is nothing in the Christian Marriage Enactment that renders a party, who had married under it, being incapable of contracting the subsequent polygamous marriage, even though the first marriage was still subsisting. [21] However, this does not end the analysis as to whether section 3 of the Christian Marriage Ordinance 1956 applies to preclude the Deceased‘s marriage to Linda Lim. This would depend on whether the Deceased was a person professing the Christian religion. PW1 and PW2 testified that the Deceased was not a practising Christian. He was also described as a free thinker. Even if the Deceased may have been brought up as a Christian, it does not follow that the Deceased himself was, in later life, a person professing the Christian religion. To my mind, the relevant point in time would be when the Deceased sought to marry Linda Lim. Was he then a person professing the Christian religion? 16 Based on the testimony given in Court by his sisters, he was not at that material time. [22] There is then the entry in the Deceased‘s application to migrate to Australia completed in 1991. As stated above, the Deceased after stating the name ―CAROLINE WULF‖ as his previous spouse, had, inserted below the name in parenthesis ―(MARRIED UNDER CHRISTIAN MARRIAGE ORD. 1956)‖. Is the Court to imply that therefore, the Deceased became a person professing the Christian religion in 1970 when he stated he married Caroline Wulf? I do not think it would be correct or safe for a Court to infer, merely from this entry, that the Deceased was a person professing the Christian religion in 1970. It could be that Caroline Wulf had wanted a Christian marriage. It would be wrong for the Court to speculate. [23] Evidence to the contrary was given in the testimony of the Defendant who said that the Deceased was a staunch Christian. Relating to this issue, the Defendant was asked in cross examination, ―Were you married then in other customary marriages? In a Church or anywhere? No?‖ The Defendant‘s answer to this was, ―No‖. So it would appear that the Deceased did not marry the Defendant in a Church, even though he could, as there are provisions under section 24 of the Law Reform (Marriage and Divorce) Act 1976 to enable him to do so. While this may not be consistent with the Deceased being a staunch Christian, the Court should equally not infer too much from this to conclude that the Deceased did not become a staunch Christian later on in life. She also testified that the Deceased was given a Christian ceremony for his funeral. This could well be true as is so often the case, 17 when one grows older the search for spiritual comfort and assurance grows more urgent. [24] The fact of the matter is, the Defendant‘s testimony does not relate to the point in time when the Deceased underwent the tea ceremony with Linda Lim. The Deceased was twenty nine years of age when he went through the tea ceremony with Linda Lim. The registration of his marriage to the Defendant was in December of 1991. By then, the Deceased would have been fifty three years of age. The Defendant in fact testified that prior to the registration of her marriage to the Deceased, there was a ceremony and dinner to announce her union with the Deceased. This was on the 3rd of November 1989. She also testified that she met the Deceased, probably, in 1986. That would mean the Deceased would have been around forty eight years of age. Based on the Defendant‘s National Registration Identity Card number and her testimony, she was born in 1964. Thus in 1966/1967, the Defendant would not have been more than 3 years old. Nevertheless, under cross examination, the Defendant insisted that the Deceased was a staunch Christian in 1966. She said she was told by the Deceased how he lived. There was no specific statement by the Defendant that the Deceased told her that he was a practising Christian at or around the time he went through the tea ceremony in 1966/1967. Clearly, the Defendant had no personal knowledge whether the Deceased was a staunch Christian or not at that time. [25] Therefore the only credible evidence available to the Court was the testimony of the Deceased‘s sisters. Accordingly, I am of the view that the Deceased was not a person professing the Christian 18 religion at the time he went through the Chinese customary tea ceremony with Linda Lim to formalise and celebrate their marriage. In addition, I would add that no evidence was led by the Defendant to establish that the tea ceremony was not properly conducted or not in accordance with what is required by Chinese custom for a valid marriage. Although the Defendant challenged the fact that the tea ceremony took place, she did not challenge the testimony of PW1 that the tea ceremony was undertaken to solemnise the union and marriage of the Deceased to Linda Lim or that the tea ceremony was in any way wrong or not according to Chinese custom. [26] There is yet another issue that remains. Having regard to the statement of Thomson LP in Re Ding Do Ca Decd quoted above, may the Deceased whose father was Indian and his mother a Chinese, be lawfully married by going through a Chinese customary marriage? This was not an issue raised by the Defendant. There was also no expert evidence led to the effect that a person who is the child of parents, one of whom is a Chinese and the other an Indian, may not lawfully be married to a Chinese by way of Chinese customary marriage. As the Deceased‘s mother was Chinese, there could have been sufficient racial nexus for him to wish to elect to go through a Chinese customary marriage. However, suffice to say that there was no evidence tendered that he may not do so. [27] Apart from the central issue as to the Plaintiff‘s status, the Defendant had also raised an issue that this suit is a ―probate action‖ and there has been a failure on the part of the Plaintiff to comply with the mandatory requirements of Order 72 of the Rules of Court 2012, in 19 particular Order 72 Rules 2 and 13(1). Order 72 of the Rules of Court 2012 deals with contentious probate proceedings and sets out certain mandatory provisions that need be complied with in a ―probate action‖. A ―probate action‖ is defined in Order 72 Rule 1(2) as, ―…an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.‖ Having regard to the Plaintiff‘s contentions and the prayers sought, it can be seen that the Plaintiff is not seeking or challenging any grant of probate or Letters of Administration or seeking a decree pronouncing for or against any will. The Plaintiff is also not challenging the interest of the Defendant under the Deceased‘s Will. In any event, these procedural objections could not have misled the Defendant in any way and no objections were taken until after the trial. In the circumstances, I am therefore of the view that this objection by the Defendant is not maintainable. [28] Having regard to the foregoing, I find that the Deceased was lawfully married to Linda Lim, having gone through a Chinese customary marriage and performed a tea ceremony before the coming into force of the Law Reform (Marriage and Divorce) Act 1976. Accordingly the Plaintiff is, in my view, a legitimate child of the marriage between the Deceased and Linda Lim. The Defendant’s Counterclaim [29] To her defence to the Plaintiff‘s claims in this action, the Defendant mounted a counterclaim. In her counterclaim the Defendant 20 seeks, inter alia, to rectify the Deceased‘s Will such that her name be included in the Will as the sole beneficiary of the Damansara Property and of the debt due and owing by Dato‘ Syed Mustaffa bin Syed Abdullah to the Deceased in the sum of RM2,433,9000.00. [30] In her evidence, the Defendant testified that the Deceased had, during his lifetime, told her that she would inherit the Damansara Property. There was also an earlier will by the Deceased dated 21st July 2011 in which the Defendant was devised the Damansara Property. The Defendant believes that there was an unintentional omission of her name in the Will in respect of the Damansara Property. However, there was no mention that the Deceased had intended the RM2,433,9000.00 debt owed to him to be bequeathed to the Defendant. [31] DW2, Jaya Selan s/o P Murugesu, testified on behalf of the Defendant. He is an assistant to a solicitor by the name of Suppiah. DW2 claims he attested the Deceased‘s Will together with Suppiah. Both DW2 and Suppiah‘s names appear at the bottom of the Will indicating that they attested to the Deceased signing it. DW2 testified in his witness statement that at the time the Deceased executed the Will, the Deceased told him that the Deceased was leaving all his property to his wife. DW2 also testified that he was not shown the contents of the Will and that the Deceased had covered the contents of the Will with a piece of paper. [32] As for the Australian Will of 21st July 2011, that has been superseded and revoked by the Deceased in his Will. In the 21 Deceased‘s Will, in respect of which grant of probate was obtained by the Defendant, it states quite clearly in its opening lines that: ―I, SAMUEL VINCENT PONNIAH (NRIC NO: 380611-10- 5081/1185548) of No. 11A, Lorong Mempoyan Damansara Heights, 50490 Kuala Lumpur hereby revoke all former dispositions.‖ (Emphasis added) In regard to the debt of RM2,433,9000.00 said to be owed to the Deceased by Dato‘ Syed Mustaffa bin Syed Abdullah, there was no mention by the Defendant or any witness that this debt would be bequeathed to the Defendant. [33] Prior to the Administration of Justice Act 1982 in the United Kingdom, the view was that under the common law the Courts had no power to rectify a will by adding words to it (see Harter v Harter (1873) L.R. 3 P. & D. 11 and Morrell v Morrell (1882) 7 P.D. 68 and Re Morris [1971] P. 62). It has been said that this is because the Courts are ―enslaved by the Wills Act of 1834‖ (see Re Reynette-James [1976] 1 WLR 161 at p166 per Templeman J.). We too have similar formalities that are imposed by our Wills Act 1959. It is said that the Courts could only omit from a will, words which the testator did not know and approve or where there is fraud. In The Goods of Schott [1901] P 190, there was an application by motion to rectify a clerical error by substituting the word ―residue‖ for the word ―revenue‖. Jeune P stated that, ―I can strike out words, but I cannot insert anything‖. Consequently the words ―revenue of the said‖ were struck out without any other word or words substituted. In Re Horrocks [1939] 1 All ER 579 at 585, Sir Wilfrid Greene MR observed that: 22 ―The jurisdiction of the Court of Probate to grant probate of a will textually different from the actual document signed by the testator is a strictly limited one. If the testator himself approved the words to which he put his signature (and the presumption is that he approved them), those words must stand. If the words were selected by a draftsman to whom the testator confided the task of drafting his will, similarly the words so selected must stand, even if the testator was ignorant of the actual words used. The mistake of the testator, or of the draftsman employed by him, as to the legal effect of the words used is immaterial. The jurisdiction, where it exists, is admittedly confined to the exclusion of words, and does not extend to the insertion of words, since the insertion of words would run counter to the provisions of the Wills Act. These matters are elementary, and there is no dispute about them.‖ [34] More recently, Marley (Appellant) v Rawlings and another (Respondents) [2014] UKSC 2, Lord Neuberger observed as follows: ―Rectification of wills [27] Rectification is a form of relief which involves 'correcting a written instrument which, by a mistake in verbal expression, does not accurately reflect [the parties'] true agreement': see Agip SpA v Navigazione Alta Italia SpA, The Nai Genova and Nai Superba [1984] 1 Lloyd's Rep 353 at 359. It is available not only to correct a bilateral or multilateral arrangement, such as a contract, but also a unilateral document, such as a settlement: see Re Butlin's Settlement Trust, Butlin v Butlin [1976] 2 All ER 483, [1976] Ch 251. However, it has always been assumed that the courts had no such power to rectify a will: see eg Harter v Harter (1873) LR 3 P & D 11 per Hannen P and Re Reynette-James (decd), Wightman v Reynette-James [1975] 3 All ER 1037, [1976] 1 WLR 161 per Templeman J. [28] As at present advised, I would none the less have been minded to hold that it was, as a matter of common law, open to a judge to rectify a will in the same way as any other document: no convincing reason for the absence of such a power has been advanced. 23 However, it is unnecessary to consider that point further, as Parliament has legislated on the topic, in s 20 of the 1982 Act (s 20). [29] Section 20 is headed 'Rectification', and sub-s (1) provides as follows: 'If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence—(a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.' Section 20(2) provides that, save with the court's permission, no application for rectification under sub-s (1) can be made more than six months after the grant of probate. Section 20(3) protects executors who distribute in accordance with the terms of a will before it is rectified after the six-month period referred to in sub-s

(2).‖ (Emphasis added) Thus the remedy of rectifying a will in the United Kingdom became clearly available as provided under the Administration of Justice Act

The observation of Lord Neuberger in paragraph 28 of his judgment above-cited was, in the circumstances of that case, clearly obiter. [35] The Court of Appeal in Singapore in the case of Cheo Yeoh & Associates LLC and another v AEL and others [2015] SGCA 29 was of the view that the rectification of a will was not a remedy available in Singapore. In that case, it was submitted on behalf of the Respondent that: ―(b) The cases cited by the Appellants in support of their position concerned the English situation where rectification is available as a remedy for a defective will. Singapore has no equivalent of that 24 remedy and the only way in which they could obtain relief would be to seek remedy under the tort of negligence.‖ In its decision, the Court of Appeal observed as follows in relation to the comments made in Walker v Geo H Medlicott & Son (a firm) [1999] 1 All ER 685: ―27 We would observe that the comments in Walker, which warn against manufactured claims, were made in the context of the English position where the remedy of rectification is available. No such remedy is available in Singapore. Moreover, the comments there were not made in relation to the question of liability for negligence but pertained rather to the quantum of damages due to a failure to mitigate. In Walker, the facts concerned a plaintiff who inherited a one-sixth share of the testatrix‘s house. Contending that the testatrix led him to believe that the house would be devised to him, the plaintiff sued the solicitors saying that they were negligent in effecting the testatrix‘s instructions. The English Court of Appeal upheld the decision of the trial judge (who dismissed the claim) on two grounds.‖ The Court of Appeal of Singapore further observed that: ―45 Second, there is again no basis for the Appellants to seek to draw a parallel between the foreign cases in which the claimants failed to avail themselves of the remedy of rectification and the present case in which the Respondents allegedly failed to obtain the cooperation of the Unintended Beneficiaries in giving effect to the New Will. What a person is legally obliged to do is distinct from what might be the moral thing to do. While in the English and Canadian cases the remedy of rectification was available to the claimants at law, the recourse of obtaining cooperation from the Unintended Beneficiaries in the present case is hardly of the same nature as the relief of rectification which is available in those jurisdictions. Here, all that the Respondents could do as a matter of mitigating their losses would be to put in a request to the Unintended Beneficiaries to 25 cooperate with them in giving effect to the New Will. But there was no obligation on the part of the Unintended Beneficiaries to cooperate and accede to the request. Since the Judge had found, and we have affirmed, that the Meeting did take place and at the Meeting, the Unintended Beneficiaries were asked to give up their windfall gains but declined to do so, we are of the view that the Respondents could not have distributed the Singapore Estate according to the division spelt out in the New Will.‖ (Emphasis added) [36] Amendments have been made to the Wills Act (Chapter 352) of Singapore to cater for the rectification of a will. We, however, do not have the equivalent of section 28 of the Singapore Wills Act (Chapter 352) or section 20 of the United Kingdom, Administration of Justice Act 1982. [37] Learned counsel for the Defendant did make reference to the Specific Relief Act 1950, contending that the word ―instrument‖ used in therein would include a will. This then would render a will amenable to rectification under section 30 of the Specific Relief Act 1950. This contention was not fully explored in the submissions of learned counsel. Having regard to section 30, I am of the view that wills do not come within its ambit. [38] Section 30 of the Specific Relief Act 1950, together with the illustrations given states as follows: ―When instrument may be rectified

When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute 26 a suit to have the instrument rectified: and if the court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

A, intending to sell to B his house and one of three godowns adjacent to it, executes a conveyance prepared by B, in which, through B‘s fraud, all three godowns are included. Of the two godowns which were fraudulently included, B gives one to C and lets the other to D for a rent, neither C nor D having any knowledge of the fraud. The conveyance may, as against B and C, be rectified so as to exclude from it the godown given to C, but it cannot be rectified so as to affect D‘s lease.

By a marriage settlement, A, the father of B, the intended wife, covenants with C, the intended husband, to pay to C, his executors, administrators, and assigns, during A‘s life, an annuity of RM5,000. C dies insolvent and the official receiver claims the annuity from A. The court, on finding it clearly proved that the parties always intended that this annuity should be paid as a provision for B and her children, may rectify the settlement and decree that the official receiver has no right to any part of the annuity.‖ Section 29 of the Specific Relief Act 1950 provides, expressly, that wills fall within the provisions under Chapter II. Chapter II caters for specific performance of contracts and section 29 provides that: ―Application of preceding sections to awards and testamentary directions to execute settlements 27

The provisions of this Chapter as to contracts shall, mutatis mutandis, apply to awards and to directions in a will or codicil to execute a particular settlement.‖ In addition, the term ―settlement‖ is defined in the Act to exclude a will or codicil. The remedy of rectification is to be found under Chapter III of the Act. [39] Section 30 of the Specific Relief Act 1950, to my mind, contemplates contracts and instruments involving 2 or more parties. Section 32 does not, in my view, extend to rectification of wills and no authority to the contrary has been provided to suggest otherwise. [40] Notwithstanding the foregoing, I am also not persuaded that merely because the Deceased may have told the Defendant and DW2 that he had intended to leave all his property to the Defendant, the Deceased has either erroneously or unintentionally left out the Defendant‘s name as beneficiary to the Damansara Property and/or his residuary estate. It could be said that if the Deceased had not intended to remove the Defendant as a devisee of the Damansara Property, he would not have executed the Will, which was executed subsequent to the Australian Will of 21st July 2011, in which the Defendant was devised the Damansara Property. It could also be that the omission was in fact an omission to substitute the Plaintiff for the Defendant but the Deceased had unintentionally omitted the Plaintiff‘s name. There can be various reasons why no devisee was specifically named in clause 2 of the Will. We will never know why this is so. Was it intentional on the part of the Deceased or was it an erroneous omission? If it was an unintentional omission, did the Deceased intend to insert the name of 28 the Defendant, the Plaintiff or someone else? The machinations of the mind are legion. These are questions the answer to which can lie only in the realm of speculation. However, it is upon evidence that Courts of law act, not speculation. Perhaps one of the reasons for the traditional reluctance of Courts to rectify a will by adding words to it is in the fact that it is a unilateral document executed by a person who is no longer alive. While the Courts are prepared to remove words in a will that the testator did not know or approve, which word or words would be visible for the Court to examine in the context of the will, words that are said to have been omitted are quite another thing. There is nothing to suggest that a testator‘s diplomacy to an expectant beneficiary would never stray beyond the painful truth. A testator is very much entitled to decide to whom he gives or does not. Indeed, clause 2 of the Will may well have been intended to be exactly the way it appears for reasons best known to the Deceased. These concerns are to my mind, reasons why a Court of law should be reluctant, or slow, to rectify a will, even if it had the power to do so. [41] In light of the foregoing, I am of the view that the Court does not have the power to insert the Defendant‘s name into the Will as sought by the Defendant. I am also of the view that even if the Court does have the power to rectify the Will, I am not convinced that there is any evidence sufficient to prove that the Deceased had probably intended to insert the Defendant‘s name in the Will in the manner claimed by the Defendant. Accordingly, I hold that the Defendant‘s counterclaim is not made out and therefore dismissed. 29 Conclusion [42] As the Defendant‘s counterclaim has not been allowed, the Deceased‘s Will stands in its present form. Having regard to clause 2 of the Will, it is clear that it does not state to whom the Damansara Property is bequeathed. Accordingly, that devise fails and the Damansara Property defaults into the residuary estate of the Deceased and falls within the ambit of the Distribution Act 1958. [43] Section 8 of the Distribution Act 1958 states as follows: ―Application to cases of partial intestacy

Where any person dies leaving a will beneficially disposing of part of his property, the provisions of this Act shall have effect as respects the part of his property not so disposed of, subject to the provisions contained in the will: Provided that the personal representative shall, subject to his rights and powers for the purposes of administration, be a trustee for the persons entitled under this Act in respect of the part of the estate not expressly disposed of unless it appears by the will that the personal representative is entitled to take such part beneficially. The Deceased‘ Will does not cater for his residuary estate – it has no residuary clause. As such, assets of the estate that are not specifically bequeathed or devised to anyone will fall within the ambit of the Distribution Act 1958 and be distributed according to the provisions of that Act. Section 8 also sets out the consequence of properties of a deceased not disposed under a will and the obligation of the personal representative. The term ―personal representative‖ is defined under section 2 of the Probate and Administration Act 1959 where it is stated: 30 ―"personal representative" means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the Court;‖ The Defendant is the executrix of the estate of the Deceased, having probated the Will and having obtained a grant of probate on the 29th of May 2015. Accordingly the Defendant, as the executrix of the estate of the Deceased and thus personal representative, is constituted a trustee of the residuary estate of the deceased for the benefit of inter alios the Plaintiff by reason of the Plaintiff‘s entitlement under section 6 of the Distribution Act 1958, as the lawful daughter of the deceased. [44] In addition to the legitimacy of the Plaintiff, which provides the foundation for the reliefs sought, the Plaintiff has also prayed for accounts to be provided by the Defendant. The account sought is in regard to the management of the estate of the deceased since grant of probate, especially in respect of the residuary estate of the deceased. An account was also sought of the Defendant as to the income derived from the house in Kuala Lumpur and Australia. However, no evidence was led or basis made out to warrant these orders sought. Indeed, the basis or justification for these orders were not addressed by learned counsel for the Plaintiff in his submissions. I would add that there is in fact no legal or factual justification for accounts made out in the circumstances of this case. 31 By reason of the foregoing:

It is declared that the Plaintiff, Lynette Mei Li Ponniah is a legitimate daughter of Samuel Vincent Ponniah (deceased) being an issue of the lawful marriage between Samuel Vincent Ponniah (deceased) and Lim Kim Yoke (f);

(ii) It is declared that the Plaintiff, Lynette Mei Li Ponniah is entitled as beneficiary to the residuary estate of Samuel Vincent Ponniah (deceased) in accordance with the provisions of the Distribution Act 1958; and

(iii) the Defendant‘s counterclaim is dismissed. Having heard submissions by counsel for the parties on the issue of costs I order that costs of RM40,000.00 be awarded to the Plaintiff subject to the payment of the allocatur fee of 4% of the costs awarded. Dated this 9th Day of October 2018 -sgd- (YA TUAN DARRYL GOON SIEW CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur (Civil NCvC 2) 32 CASES CITED Re Lee Siew Kow, Deceased Yeo Siew Neo (W) v Gan Eng Neo (W) & Ors [1952] 1 MLJ 184 Re Loh Toh Met, Decd Kong Lai Fong v Loh Peng Heng [1961] 1 MLJ 234 Re Ding Do Ca, Decd. [1966] 2 MLJ 220 Khoo Guat Tee & Ors v Lim Kim Neo & Ors [2016] 8 MLJ 639 Yeoh v Chew [2001] 4 MLJ 373 Azmi Mohamad Azam v Director of Jabatan Agama Islam Sarawak & Ors [2016] 6 CLJ 562 Re Soo Hai San & Wong Sue Foong [1961] 1 MLJ 221 NVJ Menon v The Great Eastern Life Assurance Co Ltd [2004] 3 MLJ 38 David Wee Eng Siew v. Lim Lean Seng & Anor [2014] 1 CLJ 299 In The Goods of Schott [1901] P 190 Harter v Harter (1873) L.R. 3 P. & D. Re Reynette-James [1976] 1 WLR 161 Morrell v Morrell (1882) 7 P.D. Re Morris [1971] P. Re Horrocks [1939] 1 All ER 579 Marley (Appellant) v Rawlings and another (Respondents) [2014] UKSC 2 Cheo Yeoh & Associates LLC and another v AEL and others [2015] SGCA 29 33 Megat Najmuddin Bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385 Munusamy v Public Prosecutor [1987] 1 MLJ 492 RM. P. RM. P. V. Palaniyappan v N. PL. ST. M.V. Ramanathan Chettiar [1977] 2 MLJ 34 Woon Ngee Yew and Others v Ng Yoon Thai and Others [1941] 1 MLJ 37 LEGISLATION AND LEGAL TEXT CITED Distribution Act 1958: Sections 6 and 8 Law Reform (Marriage and Divorce) Act 1976: Parts I-V and Section 109 Civil Marriage Ordinance 1952 Christian Marriage Ordinance 1956 Black‘s Law Dictionary, 8th Ed., Thompson West, (1999); p.992: ―marriage‖/‖common-law marriage‖; p.1336: ―residuary clause‖ Wills Act 1959: Section 5 Evidence Act 1950: Sections 91 and 92 Halsburry‘s Laws of England, 4th Edition, Volume 50: paras 247, 365 and 370 – 372 Probate and Administration Act 1959: Sections 2 and 30 Administration of Justice Act 1982 (UK): Section 20 Lynette Mei Li Ponniah v Lim Swee Gin, Writ No. 22NCVC-561-10/2015, Order dated 24-3-2016 Lim Swee Gin v Lynette Mei Li Ponniah, Civil Appeal No. W- 02(IM)(NCVC)-719-04/2016, Draft Order dated 13-12-2016 34 Probate and Administration Act 1959: Section 34 Rules of Court 2012: Order 38 r.2 Family Law in Malaysia and Singapore, Datuk Professor Ahmad Ibrahim, Malayan Law Journal Pte. Ltd., 2nd Ed. (1984): pp. 12, 45 and 65-67 Pollock & Mulla Indian Contract and Specific Relief Acts, Vol. II, 11th Ed

(1994), pp. 1343-1349 COUNSEL FOR THE PLAINTIFF: Stanley Sinnappan (Aston Paiva with him) (Vazeer Akbar Majid & Co No. 10 Jalan 14/48 46100 Petaling Jaya Selangor Tel : 03-7877 7000 Faks : 03 7877 6677) COUNSEL FOR THE DEFENDANT: M.S Raman (Chandran Nair & Associates No. 10(1st Floor), Jalan 52/10 46200, Petaling Jaya Selangor Tel : 03-7954 8227/79558227 Faks : 03-79568227)