Shireen Anne Davies v Gerelda A/P Anthony Bartholomew Dings (WA-22NCvC-558-08/2019)

GERELDA A/P ANTHONY BARTHOLOMEW DINGS

JOSEPH ISIDORE LOPEZ (NRIC NO.: 550817-11-5061) …DEFENDANTS GROUNDS OF JUDGMENT (After Trial) Introduction [1] This is the Plaintiff’s action (‘this Action’) to revoke the validity of the alleged last will of the Cynthia Gladys Lopez (‘the Deceased’) dated 15.05.2018 (‘the 2nd Will’). The Plaintiff claimed that the only genuine will and testament signed by the Deceased was on 03.12.2017 (‘the 1st Will’). The Plaintiff, however, disagreed with this. Background Facts [2] The Plaintiff is the niece of the Deceased having resided in the United Kingdom. Meanwhile, the 1st Defendant is the Deceased’s sister-in-law and the 2nd Defendant is the Deceased’s distant cousin. The 2nd Defendant's paternal aunt was said to be married to the Deceased’s maternal uncle. [3] On 03.12.2017, the Deceased made the 1st Will. The existence of the 1st Will was never disputed, and it is known that the Plaintiff was one of the beneficiaries. 13/02/2024 10:38:37 WA-22NCvC-558-08/2019 Kand. 201 [4] the Deceased passed away on 30.07.2018. Before her passing, the Deceased had allegedly written another will i.e., the 2nd Will on 15.05.2018 naming the Defendants as the executors of her estate. The beneficiaries of the 2nd Will were among others, the Plaintiff, the Defendants, and two others. The 2nd Will was witnessed by one Chong Jock Peng (“DW1”) and Dr Gnanasothie a/p A E Doranisamy (“DW2”). [5] Relying on the 2nd Will, on 16.01.2019, the Defendants obtained the grant of probate for the estate of the Deceased from High Court of Kuala Lumpur through petition No. WA-32NCVC-62-01/2019. [6] The Plaintiff then disputed the validity of the 2nd Will by alleging that at the time of the 2nd Will, the Deceased lacked testamentary capacity and/or was under undue influence by the Defendants. The Plaintiff’s claim was mainly for the following: a) An order to revoke the Grant of Probate dated 16.01.2019; b) A declaration that the 2nd Will is invalid and void; c) A declaration that the 1st Will is the true and valid last will and testament of the Deceased; and d) An order that probate be granted to the Plaintiff in accordance with the 1st Will. Findings and Decisions of the Court [7] After perusing the cause papers, the witnesses’ statements, the notes of proceeding, and the written and oral submissions and replies by the parties, I dismiss the Plaintiff’s action. Herein are my reasons. [8] It is the Plaintiff’s claim that the 2nd Will was invalid and correspondingly asserted that the only true and valid will of the Deceased is the 1st Will. The Plaintiff grounded her claim to revoke the 2nd Will due to the following reasons: I. that the Deceased lacked testamentary capacity; and/or II. that the Deceased was not of sound mind or understanding at the time of making the 2nd Will, and/or III. the 2nd Will was made under undue influence practiced by the Defendants. [9] I will now address these grounds in turn. Whether the Deceased lacked testamentary capacity/sound mind? [10] Before I move on further to the discussion, it is wise to address that the burden of proof to prove whether the testator is lacking in his or her testamentary capacity is on the party propounding the will. As quoted by the Plaintiff’s counsel, Mohd Zawawi Salleh FCJ in Chin Jhin Thien & Anor v Chin Huat Yean & Anor [2020] 7 CLJ 137 had observed at 162 that, “[79] … Wills – The law has been thus stated in two well-known cases: “These rules are two; first, that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite suspicion of the court, and call upon it to be vigilant and jealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased… Those who propound a will must show that the will of which is sought is the will of the testator, and that the testator was testamentary capacity. In ordinary cases, if there is no suggestion to the contrary, any man who is shown to have executed a will in ordinary form will be presumed to have testamentary capacity, but the moment the capacity is called in question, then at once the onus lies on those propounding the will to affirm positively the testamentary capacity. Moreover, if a will is only proved in common and not in solemn form, the same rule applies even though the action is to attack a probate which has been granted long ago…” [Emphasis added] [11] Nonetheless, I find that the ratio in the Federal Court case of Ong Eng Hock & Anor v Ong Cheng Guan & Anor [2018] 7 CLJ 154 is more applicable to our present case since the Defendants had already obtained the grant of probate for the 2nd Will back in 2019. In Ong Eng Hock (supra), Jeffery Tan FCJ opined at p. 161 that, “[13] We agree that “those who propound a will must show that the will of which probate is sought is the will of the testator…has to prove its due execution and valid execution and if there are any suspicious circumstances…remove them from the mind of the court…” (Sarkar on Evidence 14th edn vol. 5 2 at p.1396). that is so where probate is being sought. But probate was not sought in the instant case. The will had been propounded. Probate had been granted. After it had been probated, the will was challenged. But yet, what was before the trial court was not an action for the grant of probate, but an action for revocation of the probate.” [Emphasis added] [12] Similarly, in our present case, the Plaintiff’s action is to revoke the validity of the 2nd Will based on the grounds stated above. It is trite that revocation of will may only be made if there is a sufficient cause. This is elucidated in section 34 of the Probate and Administration Act 1959, “any probate or letters of administration may be revoked or amended for any sufficient cause.” Accordingly, the burden of proof lies on the party who seeks such revocation i.e., the Plaintiff in our present case. Thus, the key question here is whether the Plaintiff had sufficiently proven that the Deceased lacked in testamentary capacity at the time the 2nd Will was executed? [13] The Plaintiff’s counsel submitted that it is reasonable to presume that the Deceased lacked in testamentary capacity considering that at the time of the 2nd Will, she had a recent history of testamentary capacity. The Deceased condition was also terminal, and she was prescribed opioids – Fentanyl to keep her pain at bay. The Plaintiff’s counsel called upon an anaesthetic expert (PW4) to testify about the side effect of Fentanyl. PW4 explained [Q&A 16 of PWS4] that: Q. In your report you state that a person on Fentanyl can look normal but that person's higher functions will be impaired – please explain. A: Patients who are on Fentanyl may look normal to their friends who visit them or talk to them. But the patient’s higher functions, such as the ability. To appreciate alternative courses of action, comprehension of legal documents (and consequently the ability to give consent) will be impaired when the person is on Fentanyl. That is why as doctors, we avoid taking consent to operate from such patients. Patients who are on Fentanyl should not drive or operate machines because of this impairment to higher functions. [14] The Plaintiff’s counsel further argued that following the recent history of the Deceased impaired testamentary capacity, it is presumable that the Deceased lacked testamentary capacity until it is proven otherwise. He cited Section 114(d) of the Evidence Act 1950 and the ratio of Gopal Sri Ram JCA (as he then was) in Tho Yow Pew v Chua Kooi Heun [2002] 4 MLJ 97. [15] The Plaintiff further alleged that at the time the 2nd Will was written, the Deceased’s doctor was not present, but it was witnessed by the Deceased’s friend, DW2 and her attorney, DW1. DW2 was a qualified doctor before her retirement. Nevertheless, it was the Plaintiff’s case that DW2 could not ascertain the Deceased’s mental capacity in the same way as the Deceased’s doctor since she had never treated the Deceased before. Similarly with DW1, who admitted that if he had known the Deceased was on Fentanyl he would have asked the Deceased’s doctor for a medical certificate. [Notes of Proceeding (NOP) at p. 535] He also mentioned that when it comes to surgical consent, he mentioned this yesterday, they will try not to take if from a patient who is on fentanyl, ok. But, in all fairness to you Mr Chong, you did not know that the patient was on fentanyl? Yes, Had you known that Cynthia was on fentanyl, had you known that she was on a drug which had all these effects, what other precautions might you have taken? Had I known about this, I would have asked the doctor in charge to give me a medical certificate. Ok. To examine the patient. And the doctor in charge you mean Dr Paul, right? Yes. [16] In rebutting the Plaintiff’s notion, the Defendants argued that the Plaintiff has not produced any tangible evidence to support her allegation. Firstly, the Defendants contended that it was the Deceased’s decision to absolve the Plaintiff of her responsibility as executrix. This can be seen in an email from the Deceased on 12.05.2018 (Exhibit D-43, page 288, Bundle C1) Dear Shireen, apologies for waking up at an early hour… Your mother has been telling me you are very very busy and that you cannot make a visit KL this year. Under circumstances, it is best that you absolve your responsibilities as an executor. It is unfair for Mr Chong to have waited for so long. When the job is not completed, Mr Chong cannot be paid fully. So I have decided that it is best that the job as an executor be taken over by Mrs Dean Lopez and Mr Joe Lopez. I found them to be completely honest and dependable. Please let me know as soon as possible so that we can complete the changes. With love Aunty Gladys [17] The Plaintiff also knew the existence of the 2nd Will as she was duly informed by DW1. This was admitted by the Plaintiff herself during cross-examination: [NOP pp. 75 – 76] So, you knew that when you wrote this email on the 12th of May that the role of the executor only takes place after the person has died. You are saying that you had full knowledge you were no longer the power of attorney or the attorney for the deceased. And then you went on to say, “Mr Chong can be paid what is owed for his legal affairs directly by yourself and Mrs Dean Lopez, Joe Lopez can administer the estate thereafter as joint executors”, correct? You said that, correct? SHIREEN Yes, based on her email to me. Right. And based on her email at page 287, as at that time on 12/05/2018, did you write any email to Mr Chong to say that “Look, I have received this email from my aunty. Can you check into her mental state?” Did you write such a letter to Mr Chong? SHIREEN No, I didn’t know what to do, and I was trying to keep everybody happy. This was really awkward. [NOP at pp. 71-72] Right. Did you on 18/07/2018 receive a reply from Mr JP Chong? SHIREEN Yes. In which he answered under, just below the heading joint bank account with Dr CG Lopez, he said, “On Dr Lopez’s will, I have her instructions to inform you that she had on 15/05/2018 made a new one in which Mr Joe Lopez and Mrs Edwin Lopez be appointed as executors and trustees with you as one of the beneficiaries named therein.” So, would I be right to say that it has been acknowledged that he executors have been changed? Right. At 18th July, and that she had made a new will. SHIREEN Yes. [18] Moreover, the Plaintiff herself also admitted and acknowledged the state of the Deceased’s mental capacity as lucid in an email dated 28.03.2018 (Exhibit P-11, page 247, Bundle C1): Dear Mr Chong Thank you for your e-mail and continuing efforts on our family’s behalf, and clarification regarding the revocation of the PoA granted recently. Dr Lopez called me this morning (27.3.18) at 5.30 am (UK time) and said that she was revoking the PoA as she wanted a simple process as well as local oversight for managing her affairs. This would include yourself, and an (unnamed) accountant friend who would keep track of spending on her bank accounts. She was clearly compus mentis, and so I shall concede to her wishes and return the PoA forms to your office. I hope that in spite of the revocation, my name will not be besmirched in any way at the High Court, in case it is necessary to reinstate this provision…” [Emphasis added] At the time, the Deceased had revoked the Power of Attorney that she had bestowed upon the Plaintiff on 14.03.2018. [19] Considering the above submission, I am with the Defendants on this matter. According to the Federal Court in Chin Jhin Thien (supra) at para [52], the testator testamentary capacity is determined by assessing

whether the testator understood the nature of the act and its effect;

whether the testator could understand the extent of the property of which he is disposing of; and

whether the testator could be able to comprehend and appreciate the claims to which he ought to give effect. It is the soundness of the mind and not the particular state of bodily health that is to be attended to. [20] Likewise, in Randolph Yap Pow Kong & Anor v Yvonne Yap Yoke Sum (f) & Ors [2011] 3 MLJ 556 at 564, it was held by Ravinthran JC (as he then was) that in determining the testamentary capacity, one needs to see the testator condition during the signing of the will. [21] At the outset, I must draw the baseline of what constitutes testamentary capacity and its difference with contractual capacity. In order to create a will, the law requires only slight capacity to fulfil the threshold (see Tho Yow Pew (supra)). The decision of Zawawi Salleh FCJ in Chin Jhin Thien (supra), at p. 603 clearly enunciated that testamentary capacity cannot be equated with contractual capacity where he cited the decision of Gopal Sri Ram JCA (as he then was) in Lee Ing Chin: “… [62] Testamentary capacity cannot be equated with contractual capacity. In the words of His Lordship Gopal Sri Ram JCA (as he then was) in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97: Thus, it may be soon 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. [63] We venture to suggest that this approach is consistent with the concept of task-specific capacity, that is, that a person’s capacity to make a decision in one area or task (for example will-making) is distinct and separate, and therefore cannot be extrapolated from their capacity to perform another task (for example entering into a contract and making decision about finances etc).” [Emphasis added] [22] Accordingly, the degree of contractual capacity is higher than of testamentary capacity. It is then possible that an individual has lost contractual capacity, but testamentary capacity remains because the law requires only slight capacity to fulfil the threshold. [23] This can be seen even in the English case of Banks v Goodfellow [1870] LR 5 QB 549, which remains the landmark common law decision on testamentary capacity to this day. It is trite law form this case that the testamentary capacity would not be nullified on the basis of mental incapacity due to disease or narcotics alone but requires further consideration of whether the deceased had full comprehension of the disposal of their property in the will. [24] In our present case, it can be concluded from the evidence that the Deceased has the testamentary capacity at the time of the signing of the 2nd Will. Firstly, the facts that lead to the creation of the 2nd Will are well explained by DW1 during re-examination by the Defendants’ counsel. [NOP at pp. 539-540] Could you inform the Court once again why did you meet her on the 11th of May? She called me to the house. She told me that she wanted to make change to the will. So, I went there to see her. I found that she was quite mentally alert and she was in her usual self. Now how long were you there to take her instructions? I think it’s about half an hour. … Were her instructions clear? Yes. Did she give clear instructions? Yes, Did at any point in time when she gave instructions to you on the 11th or 15th, did you have the same worry that you had on the 03/03/2018 when you met her? No worries. She was because I found her to be mentally very alert. Ok. And on the 12th of May, she did not give instructions because I there to ask her to sign the will. 12th of May? 11th of May … Sorry. It was 11th of May. She asked me to amend the will. Then, I explained to her how she wanted me to amend the will. And also, I told her to, I advised her to inform the Plaintiff about it. [25] DW1 also testified that he had read the 2nd Will out to the Deceased in the presence of DW2 before the Deceased signed the will. [NOP at p. 527] What, did you read out the will to her? Yes, I read out the whole will to the deceased and she was there Ok I suppose she would have heard. Ok She was listening to my explanation So, you read out the whole will? Yes, I read out to her. Ok. And after you read out to her, who signed it first? The Deceased. She signed first. Ok. And was Dr Gnanasothie present all the time you were reading it to her? Yes [26] Likewise, DW1 had explained during re-examination that: [NOP at pp. 537 – 539] Right. You were asked this question a long prelude to the question about her medical conditions and the medication she was taking and you said you were not aware. Yes. And again, you were asked. “If you were what would you do”? Yes. And you said, “Had I known, I would have asked for a medical certificate.” That was your answer, alright. Now, my question is, even without a medical certification, ok, what measures did you take to ascertain that the deceased had testamentary capacity to alter a will? … Yes. I spoke to the Deceased and explained the terms of the will to her, and she appeared to be mentally very alert and she understood what I explained to her. [27] This is also further clarified and collaborated by DW2 who testified during re-examination that the Deceased called DW2 to be her witness for the 2nd Will. [NOP at pp. 571-573] Alright. Now, you also wanted to expend but you were cut off, when you, the questioned my learned friend that when you went to attest the signature on the 15th of May, she was lucid, right? Yes, she talked to me. … Sorry. Alright. What was her state of mind, from your observation? Well, she called me. Speak into the mic loud and clear She called me to come and witness her will. So, she called you? Yes. Alright. And? I was sitting on the, I had gone out to the other side, then she called me there. … Could you explain when you used the word “lucid”, what did you mean by that? Well, she called me, and then, she wanted me to be a witness to her will. Right. So, I accept that she was aware of what she was doing And you went over to see her? Yes [28] I also find the Defendants’ counsel quoted ratio of Rajaratnam Kumar (alias Rajaratnam Vaiamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit [2010] SGHC 164 of assistance: “59. It is also pertinent to note that the fourth wills are, in any case, valid on the ground that they were prepared in accordance with instructions given by a testator when he or she was of sound mind. In Parker and Another v Felgate and Tilly (1883) 8 PD 171, Sir James Hannen explained at 173 as follows: 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.” [29] Another point that was alleged by the Plaintiff was the effect of Fentanyl which was taken by the Deceased. On this matter, the Plaintiff had called 2 expert witnesses, PW3 and PW4 to testify about the effect of the said medication. However, I agree with the contention of the Defendants’ counsel that the opinion of PW3 and PW4 should be taken with caution since both witnesses had never treated nor assessed the Deceased. PW3’s and PW4’s expert opinion was only based on the documents i.e., two statutory declarations which were highly disputed regarding their authenticity. PW3 and PW4 admitted this during cross-examination: [NOP at pp. 253-254] Ok. So the next column, we find sources of information. So your entire opinion of probable mental condition on around May till June 2018 of Gladys Cynthia Lopez was based on, you agree with me the Pantai Hospital records of the deceased and two statutory declarations? Yes Right. So in coming to your conclusions, you were given this huge four volumes medical reports of the deceased? That’s right. Five Sorry, five, sorry. And you are given two statutory declarations from Bernalda Insuya Coral dated 29/04/2019 and Christina Ramirez Jerero (00:40:55) dated 24/06/2019. Yes And you did not interview either of these persons? No Now, Doc, can I refer you to page 15? Hold on. Before that, alright, before that, can I just, under the source of information at page 13, I also observed that you said apart from two statutory declarations, no collateral history was obtained from any other party? Yes Right. Could you just explain to me because I just to be clear because I may have a different interpretation of it. When you said no collateral history was obtained from any other party, are you referring that your knowledge in coming to your conclusion is purely derived from these five bundles and the two statutory declarations? Yes [NOP at pp. 289-290] Alright, in coming to your terms of reference, you have several things. One, you have never seen the patient, correct? Yes So you have never interviewed here, you wouldn’t know actually what was her state of mind as at the 15/05/2018, would I be right? Yes Alright, how she was, whether she spoke, whether she could understand legal documents or other documents, you wouldn’t know, correct? Yes Alright, so your opinion is based on, based on all this medication, this is how she ought to be? Based on the records, of the medical records, entries by the doctors who were treating her at that time, based on that, is where I form my opinion on. Yes, so you formed the opinion also based on the five volumes of medical report – Yes And also you relied on two documents, two statutory declarations? Yes, I did. Alright, did you know whether or not those statutory declarations were true or false? No, I was just looking at it as a statutory declaration. Alright, so you just took those statutory declarations, believing them to be true Yes [30] Essentially, these two statutory declarations were prepared by the Plaintiff’s counsels. These two statutory declarations were affirmed separately by Cristina Ramirez Gerero (‘Cristina’) and Bernalda Insuya Coral (‘Bernalda’), who were the Deceased’s helpers at the time. However, throughout out the trial, only Bernalda was subpoenaed as a witness: PW2. Nonetheless, from the cross-examination of PW2 by the Defendants’ counsel, I find that her testimony and her statutory declarations are unreliable and inconclusive. Her demeanour in answering questions from the Defendants’ counsel was also evasive. [NOP at pp. 213-216] Alright, that is why I am asking you, alright, when did you prepare this document? Sorry. This one I prepare in August, already. You prepared already? Yes, that time I make a new one then I meet Mr Peter in the office. Yes, when you prepared this new one, who was present? Joyce and Mr Peter. Joyce and Mr Peter was present when you prepared this statutory declarations? Yes … August, on the same day that you prepared this? Don’t look at you lawyer for answers ,alright? BERANALDA: … So, on the 29/08/2022, you went to Mr Peter’s office in Damansara? Yes Now, and who drafter this statutory declaration for you? The lawyer. The lawyer drafter the statutory declaration. So, you when you arrived, this statutory declaration was already prepared? No, then-I, this one is I already, this one is okay already. This one is okay already? yes What do you mean by this one is ok already? This one, I remember, I go there first then prepare then after one week, call me again to sign. [31] The authenticity of the statutory declarations is also questionable. Other than the possibility that the statutory declarations would have been tampered with as highlighted by the Defendant, I also find that the material facts she had testified were not primarily originated from her, but from Cristina, the other helpers of the Deceased. [NOP at p. 198] Alright. On the 14/03/2018, alright, do you recall Mr JP Chong coming to the hospital? I am [sic] not the one who duty, Christina is the one who duty [sic] but she informed me. She called you? Yes Now, you got confused, you are talking about 03/03/2014, I am not talking about 3rd of March. You said, Christina called you and said somebody came to make a Will and sign a Will and so on and so forth, correct? She just informed me. She just informed me, alright. So, you never saw the Will, the so-called will for Aunty Gladys to sign, correct? No So, this statement is based on what Christina told you? Yes, because she – [32] Also in [NOP at pp. 201-202] Now, you have said in para 4 at page 260, alright, whenever, the patches were on her, she immediately became like a trance, cannot speak properly, cannot remember anything, did you immediately call the doctor to find out why is her reactions like that? This one, we know already because – Did you or did you not call a doctor? Christina is ]sic] the one who called the doctor and explained, the doctor explained. So you didn’t call. This is your affidavit? Yes… [Emphasis added] [33] All there are surely hearsay and could not be relied upon. Nevertheless, even if I were to accept Bernalda’s statement, in her statutory declaration, she never mentioned nor explained the Deceased’s conditions during the signing of the 2nd Will. She only stated this “I confirm that Glady was admitted in hospital for a month from February 2018 to March 2018 and after she was discharged, she was frequently in great pain. To help her ease the pain, she was given Fentanyl patches. Whenever this patch was on her, she immediately became like in a trance, cannot speak properly, and cannot remember anything.” Accordingly, this Court is unable to consider her testimony. [34] Coming back to the testimony of PW3 and PW4, as establishing earlier, none of them had actually treated/ examined the Deceased at the time she wrote the 2nd Will. Consequently, the weight of the expert opinion made by PW3 and PW4 should be lessened. As cited by the Defendants’ counsel, Richard Malanjum CJSS (as he then was) in Desa Samudra Sdn Bhd v Bandar Teknik Sdn Bhd & Ors [2012] 1 MLJ 729 had made it clear at 742 that: “In the law governing documentary evidence, as in oral evidence, three matters come to mid-relevancy, admissibility, and weight. They must be considered in that order. Only evidence which is relevant ought to be admissible. Irrelevant evidence should be rendered as inadmissible and the matter ends there. Now, relevant evidence which is rendered admissible is still subject to the element of weight. The court can either attach due weight to the evidence, or some weight, little weight, or no weight at all. Due regard must be given to the authenticity of the evidence, its source, its contents, and more importantly, the surrounding circumstances of the case. This is where contemporaneous evidence would come in handy” [35] I also refer to the case of Low Chee Choy v Tok Siew Ling & Anor [2016] MLJU 1666, where Alizatul Khair Osman Khairuddin JCA (as she then was) referred to the observation made by Suriyadi J (as he then was) in Thiang Kai Goh v Tee Bee Eng & Ors [2005] 1 MLJ 431 that the only ones who present with the testator during the signing of the will would be the only ones who could present a reasonable fair picture of what had happened on that day. Moreover, since there was no medical evidence adduced by the plaintiff regarding the testator’s mental faculty on the material date, it is safe to assume that the testator has the testamentary capacity in signing the will. [36] The weight of the expert witnesses, PW3 and PW4 are further reduced simply due to the fact that they were not the attending physicians on the deceased’s mental state either before or during the will’s execution. In the case of Sethambal Doraiappah & Anor v Krishnavani Muniandy [2004] 1 CLJ 869 at p. 882, para. b – d, Abdul Hamid Mohamad JCA (as he then was) had held that the weight of another doctor’s opinion in the consideration of testamentary capacity was of little value and did little to assist in determining the testamentary capacity of a deceased. [37] Since neither PW3 nor PW4 was present during the signing of the 2nd Will, PW3 and PW4’s observation/ conclusion of the Deceased’s condition at the material time is presumptuous. This is readily admitted by both PW3 and PW4: [NOP at p. 252] Right. So would I be right to say, Dr, at best based on your expertise, you are giving a probable – Absolutely. Not something that is conclusive? Would I say that? Yes [NOP at p. 301] Exactly. Similarly your opinion is based on conjecture that is based on her reaction to medication. Yes Alright, that is the assumption that you have made, correct? An assumption plus-That is the assumption you have made, correct? Correct. [38] To sum up, I find that the Plaintiff had failed to show that the Deceased’s mental capacity was impaired during the signing of the 2nd Will. Even though the Deceased was suffering from a terminal illness, it does not mean that her testamentary capacity is lacking (See Chin Jhin Tean (supra)). As testified by DW2, notwithstanding any presumption with regard to the effect of the opium-Fentanyl patches, the key consideration here is the Deceased. It is the Deceased that we are talking about here. And she found nothing to suggest any lack of testamentary capacity of the Deceased at the time the 2nd Will was executed by her. I find this testimony from DW2, an independent witness who has no personal interest in the outcome of this case, reliable and convincing. This is further collaborated by DW1, another witness who dis not see any “unwell’ condition of the Deceased on the day of signing of the 2nd Will, unlike what had transpired in the previous occasions. DW1, is again another independent witness who has no personal interest in the outcome of this case. Both DW1 and Dw2 are professional and had found the Deceased of sound mind, lucid, conscious, mentally alert, and able to communicate on the day she executed the 2nd Will. Whether the Deceased was undue influence by the Defendants? [39] The Plaintiff further alleged that there is an undue influence exerted by the Defendants in the making of the 2nd Will. This is because the Deceased had fully relied on the Defendants, especially the 2nd Defendant in her day-to-day activities, not to mention that the Deceased’s mental capacity is deteriorating, and the circumstances were such that the Defendants benefited from the 2nd Will. [40] On this matter I refer to Court of Appeal case of Lee Ah Sin @ Lee Sin Kee v Wasunan Tonrab & Anor [2023] 2 MLJ 818 at p. 834, where Natha Balan JCA referred the meaning of undue influence in probate actions in Wingrove v Wingrove (1885) 11 PD 81: “To be undue influence in the eye of the law there must be – to sum it in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.’ [Emphasis added] [41] The Plaintiff had also further argued that in the event that the undue influence could not be proven, the Court is empowered to invalidate the 2nd Will since the outcome of the present case would similarly benefit the Defendants. To support, the Plaintiff’s counsel referred to the case of Choo Mooi Kooi v Choo Choon Jin @ Jimmy Choo and other suits [2012] 2 MLJ 691 where Varghese George JC (as he then was) said that “even where undue influence may not have been definitely established on evidence, the court could still strike down a will or instrument that had been challenged on that count, under the inherent duty of the court to be vigilant against suspicious circumstances which could got to the root of the validity of any document before the court.” [42] To disseminate the Plaintiff’s claim, the Defendants premised that undue influence may not be presumed where a will is concerned. Here the Defendants’ counsel referred to Singapore High Court case of Rajaratnam Kumar (supra) where Tan Lee Meng J elucidated that: “65… However, in the context of wills, Lord Cranworth explained in Boyse v Rossborough (1857) 6 HLCas 2 at 49 that “once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the [burden] of proving that it was executed under undue influence is on the party who alleges it.” In short, where a will is concerned, undue influence may not be presumed…” [Emphasis added] [43] Hence, the question is whether the Plaintiff has successfully shown that there was any undue influence involved in the making of the 2nd Will? The answer is negative. Plaintiff had not established anything to convince this Court soundly that there was indeed such an undue influence. [44] I also agree with the Defendants’ counsel that, if the Plaintiff had suspected that the 2nd Will was written under undue influence, why she did not raise her concern earlier to the Deceased’s lawyer? The Plaintiff had known the existence of the 2nd Will way before the grant of probate. This was admitted by the Plaintiff herself during cross-examination: [NOP at p. 89] I also believe that she signed the document following undue influence practices by Joe and Gerelda. I also believe, again, this is your opinion, correct? SHIREEN Yes Right. You agree that at the material time even as late of 12/05/2018, you did not write to JP Chong or anybody, and register your fear that Joe and Gerelda were practising undue influence on Aunty Gladys? SHIREEN No. [45] Therefore, I am of the view that the allegation of undue influence claimed by the Plaintiff is a mere afterthought and is without basis. Inter-Vivos Gift [46] Another issue that was also raised by the Plaintiff was on the inter-vivos gift i.e., RM390,000 paid by the Deceased to the 2nd Defendant. With regards to this, the Plaintiff again alleged that the inter-vivos gift was given under undue influence. This is because the 2nd Defendant was in a position of trust and confidence, and the amount given was not a customary gift such as ‘ang pow’ or a birthday present. [47] In contrast, the Defendants again argued that in cases that involve will, and gift such as in the present case, undue influence cannot be presumed. The Plaintiff bears the burden of proof to show that indeed undue influence had happened. It is also the Defendants’ case that inter-vivos gift can exist side by side with the testamentary intentions of the Deceased. To support, the Defendants refer to the Singapore Court of Appeal case of Lim Sui Hong Katherine v Lim Joo Hien Anthony [1998] 3 SLR (R) 612. [48] To this, I agree. As discussed above, the Plaintiff had failed to show any sound evidence to suggest/establish that the Defendants had exercised undue influence over the Deceased. The onus of proving the case is always upon the Plaintiff. Since the Plaintiff had failed to discharge such burden of proof, accordingly the Plaintiff’s claim should fail and ought to be dismissed. [49] It is also pertinent to note that the said gift was transferred by the Deceased herself in June 2018. Regardless of any reasons for such gifts, it was given by the Deceased to the 2nd Defendant during her lifetime. Thomas CJ in Kumarappa Chettiar v The Federated Malay States [1938] 1 MLJ 9 elucidated that inter-vivos gift as “the transfer of any property from one person to another gratuitously. It is an act whereby anything is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the donor and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver.” [50] The principles of inter-vivos gift are also thoroughly explained by His Lordship Gopal Sri Ram JCA (as he then was) in the case of Lee Ing Chin (supra) at p. 63: “We begin with the proposition that there are three and only three ways in which a gift inter vivos may be made. First, by an outright transfer of the property to the intended done. Second, by a transfer of the property absolutely to trustees to hold on trust for the donee. Third, by the owner declaring himself as trustees to hold on trust for the donee. An ineffective outright gift will not be save by the court by construing it as a declaration of trust because “there is no equity in this court to perfect an imperfect gift”: Milroy v Lord [1862] 45 ER 1185, per Turner LJ. We find the decision in Jones v Lock [1865] 1 Ch. App 25 to be a ready illustration of the principle we have just stated. It follows that inter vivos gift that is not effected in one of the three ways aforesaid can only take effect either as a testamentary gift under a will of a testator or pass under an intestacy…” [Emphasis added] [51] Referring to the above authorities, the amount of RM390,000 given by the Deceased to the 2nd Defendant is simply a gift as it falls under the first category mentioned in Lee Ing Chin (supra). Thus, there is no reason whatsoever for this Court to disrupt the inter-vivos gift just because the amount is too high to the Plaintiff’s liking. Conclusion [52] To conclude, I find that the Plaintiff had failed to discredit the evidence tendered by the Defendants to convince this Court that the Deceased was lack of testamentary capacity and was under undue influence at the time of the 2nd Will. There is no direct evidence put forward by the Plaintiff to show that the Deceased was lack of testamentary capacity at the time the 2nd Will was executed by the Deceased. The witnesses and solicitors attending to the Deceased found her to be lucid. The Plaintiff had failed to challenge the validity of the 2nd Will and therefore I have decided in favour of the Defendants. The Plaintiff’s claim is thus dismissed with costs. Dated: 10th February, 2024 Dr John Lee Kien How @ Mohd Johan Lee Judge High Court Malaya Kuala Lumpur For the Plaintiff David Dev Peter & Lavernya Bala Subramaniam (PIC) Messrs. Jerald Gomez & Associates Advocates & Solicitors For the Defendants Muralee Menon & Tan Wei Ting Messrs. M. Menon & Partners Advocates & Solicitors Table of Authorities Cases Banks v Goodfellow [1870] LR 5 QB 549 Chin Jhin Thien & Anor v Chin Huat Yean & Anor [2020] 7 CLJ 137; [2020] 4 MLJ 581 Choo Mooi Kooi v Choo Choon Jin [2012] 2 MLJ 691 Desa Samudra Sdn Bhd v Bandar Teknik Sdn Bhd & Ors [2012] 1 MLJ 729 Kumarappa Chettiar v The Federated Malay States [1938] 1 MLJ 9 Lee Ah Sin @ Lee Sin Kee v Wasunan Tonrab & Anor [2023] 2 MLJ 818 Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19 Lim Sui Hong Katherine v Lim Joo Hien Anthony [1998] 3 SLR (R) 612 Low Chee Choy v Tok Siew Ling & Anor [2016] MLJU 1666 Randolph Yap Pow Kong & Anor v Yvonne Yap Yoke Sum (f) & Ors [2011] 3 MLJ 556 Rajaratnam Kumar (alias Rajaratnam Vaiamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit [2010] SGHC 164 Sethambal Doraiappah & Anor v Krishnavani Muniandy [2004] 1 CLJ 869 Tho Yow Pew v Chua Kooi Heun [2002] 4 MLJ 97 Ong Eng Hock & Anor v Ong Cheng Guan & Anor [2018] 7 CLJ 154 Statutes Section 34, Probate and Administration 1959