Yaleperumal A/L Perumal v Rajindran A/L D.Kuppusamy (JA-22NCvC-55-04/2021)

RAJINDRAN A/L D. KUPPUSAMY [NRIC No. : 551218-07-5373)

PACHIMAL A/P PERUMAL [NRIC No. : 640705-08-5370] …DEFENDANTS GROUNDS OF JUDGMENT 17/02/2026 20:07:16

Plaintiff filed in this action seeking a Declaration that the Will dated 05/09/2012 ("the Second Will" or "the Impugned Will"), which purportedly was the last Will and Testament of the late Perumal a/l Gavaran ("the Deceased" or "the Testator"), is null and void and of no effect. The Plaintiff also prays that all actions taken pursuant to the said Second Will be declared null and void.

The trial was conducted for two days, on 10th and 11th November

Four witnesses were called to testified : one witness for the Plaintiff (SP1, the Plaintiff himself) and three witnesses for the Defendants, namely –

SD1 - Shanmugam Thevar Selvarani, the solicitor who prepared the Second Will;

SD2 - Rajindran a/l D. Kuppusamy, the 1st Defendant; and

SD3 - Pachimal a/p Perumal, the 2nd Defendant.

Parties filed their written submissions’ together with Bundle of Authorities and also orally submitted before this Court on 19th December 2025. The decision was adjourned to today and this Court shall now deliver its decision.

The Deceased, Perumal a/l Gavaran was born in 1931. He has 5 children, 3 sons and 2 daughters. He passed away on 15/01/2013 at the age of 81 years due to a stroke and left two Wills.

The Deceased was registered as a person with disability (OKU) due to a leg disability from birth. According to the evidence at the trial, the Deceased could not read or write in English or Bahasa Malaysia, and could only communicate in Tamil. This fact is significant given that the Second Will was prepared entirely in English.

The Plaintiff is the youngest son of the Deceased (the 4th child) and was a named beneficiary under the First Will dated 12.02.1988, being one of the two younger sons for whose welfare and marriage the two eldest sons were made responsible.

The 2nd Defendant is the eldest daughter of the Deceased (the 3rd child) and the elder sister of the Plaintiff. She is named as the Sole Beneficiary in the Second Will. The 1st Defendant the son-in-law of the Deceased, being the husband of the 2nd Defendant. He is named as the Sole Executor in the Second Will.

The central dispute in this case are the two Wills purportedly made by the Deceased, as follows –

The First Will dated 12/02/1988

the First Will was made in Dharmapuri District, Tamil Nadu, India when the Deceased was 57 years old;

(ii) the salient features of the First Will are as follows –

(A) it was handwritten by the Deceased himself in Tamil, his native language;

(B) the Deceased signed and affixed his thumbprint on the

(C) it was witnessed by three (3) independent witnesses, including the District Registrar of Dharmapuri, Tamil Nadu, India, who affixed an official seal for authentication;

(D) it was duly registered at the District Registration Office;

(E) all four sons of the Deceased were named as beneficiaries. The two eldest sons were entrusted with the properties, with the responsibility to care for the two younger sons, including the Plaintiff, and to arrange their marriages;

(F) the two eldest sons were entrusted as custodians of the family properties and the welfare of the younger sons. The First Will also reserved to the Deceased the right to change, cancel or alter the Will during his lifetime.

(iii) according to the Plaintiff, the exclusion of daughters from the First Will was in accordance with Indian tradition at that time, whereby daughters who would marry and leave the family home were not named as beneficiaries, while sons who would remain with the family were named.

The Second Will dated 05/09/2012 (The Impugned Will)

the Second Will was allegedly executed at Kulai, Johor when the Deceased was almost 81 years old, approximately four (4) months before his death.

(ii) The features of the Second Will that are relevant to this case are –

(A) it was prepared in English by SD1, a solicitor, although the Deceased could not read or understand English;

(B) the Deceased only affixed his thumbprint without any signature, despite the attestation clause stating "signed, sealed and delivered by the above named

(C) the 2nd Defendant (eldest daughter) is named as the Sole Beneficiary, thereby excluding the Deceased's wife and four other children including three sons;

(D) the 1st Defendant (son-in-law, husband of the Sole Beneficiary) is named as the Sole Executor;

(E) it contains an anti-contest clause providing "RM1.00 or equivalent Rupees in India" to anyone who contests the

(F) one attesting witness (Sharadah a/p Ramakrishnan, a clerk) signed on a separate page attached to the Will, not on the same page as the Deceased's thumbprint, as highlighted in the Plaintiff's Issues; and

(G) a Grant of Probate was issued on 21/10/2014 pursuant to Originating Summons No. 32NCVC-320-09/2014.

Against this backdrop, the Plaintiff filed his Writ of Summons and Statement of Claim on 17th April 2021, seeking a declaration that the Second Will dated 05/09/2012 is null and void. The Plaintiff pleaded that the Second Will was invalid based the following reasons –

the Will states “signed sealed and delivered” but bears only a thumbprint without signature;

there are no signatures of two witnesses on the same page as the thumbprint;

the solicitor who allegedly witnessed the Will did not file an affidavit for the Probate application;

the Deceased did not understand English but the Will was entirely in English; and

the clerk’s affidavit stated she witnessed the testator “menurunkan tandatangan” (affix signature) when there was only a thumbprint.

The Defendants in their Statement of Defence denied all allegations of fraud and conspiracy. The Defendants averred that –

the Second Will was valid and complied with the Wills Act 1959 [Act 346];

the contents were read and explained to the Deceased in Tamil before he affixed his thumbprint;

the Deceased was of sound mind and had testamentary capacity;

the Deceased stayed with the Defendants for more than 10 years before his death; and

the Deceased chose to live with them because the Plaintiff had been cruel and abusive to the Deceased.

The Plaintiff in his Reply to Defence on 8th October 2024, strongly denied the contents of the Defence. The Plaintiff maintained that the Second Will was not properly witnessed and constituted a fraud. The Plaintiff also disputed the Defendants’ claim that the Deceased had lived with them for 10 years and denied the allegations of cruelty and abuse.

Both parties filed in separate issues to be trial in Enclosure 108 (Plaintiff’s issue) and Enclosure 106 (Defendant’s issues). At the commencement of trial, counsel for the Defendants informed this Court that parties could not reach agreement on the issues to be tried and hence filed their respective issues separately.

Counsel for the Plaintiff submitted that the main issue is whether the Second Will is manifest, that is, whether the Second Will is valid. Counsel for the Defendants, agreed that this is also the Defendants' main issue, but took issue with the manner in which certain questions were framed by the Plaintiff.

Having heard both parties, this Court proposed that the trial proceed and that the common issues for determination be identified at the conclusion of the trial, after having considered the totality of the evidence adduced. Both parties agreed to this approach.

The Plaintiff's Issues are as follows –

is the purported Second Will of Perumal a/l Gavaran dated 05/09/2012 valid in law?

some of the issues for the Court to consider –

did the deceased make the Will;

(ii) the Testator almost 86 years old when purportedly made Will, did he know it is a Will;

(iii) the deceased was in the custody of the Defendants;

(iv) the Deceased had 3 sons but why only the 2nd daughter named in the purported Will and her husband named as executor;

died 4 months after purportedly making Will;

(vi) the deceased does not understand English language;

(vii) the Clerk's signature is not in the Will but she attaches a piece of paper to the purported Will saying she witness the Will;

(viii) the Clerk says she saw testator “menurunkan tandatangan” but there is no “tandatangan” only a “cap jari”;

(ix) the Clerk in her witness affidavit says her solicitor read over the Will but the Will is in English language;

why did not the solicitor affirm a witness affidavit when applying for letters of Probate?

The Defendants' issues are –

whether the deceased possessed the requisite testamentary capacity to execute the Will dated 5.09.2012;

whether the Will dated 5.09.2012 was executed in breach of the law, in particular the Act 346, which would render it invalid and unenforceable;

whether the 1st Defendant and 2nd Defendant conspired in the preparation of the Will 5.09.2012;

whether there was fraud involved in the preparation of the Will dated 5.09.2012; and

whether the Defendant has sufficient pleaded particulars of fraud and conspiracy that the Plaintiff is seeking to rely on.

It is observed that while both sets of issues appear different in their framing, they converge on the central question : the validity of the Second Will dated 05/09/2012. The Plaintiff's issues focus on the factual circumstances surrounding the execution of the Will (the "how" and "why"), while the Defendants' issues are framed in terms of legal requirements and burden of proof.

In particular, this Court notes that –

The Plaintiff's question "did the deceased make the Will" essentially asks whether the Deceased knowingly and voluntarily executed the Second Will, which relates to the Defendants' issue of whether the Will was "executed in breach of the law";

The Plaintiff's questions regarding the clerk's conduct and the solicitor's failure to file an affidavit go to the heart of due execution under the Act 346;

The Defendants' issues on fraud and conspiracy are the legal characterisation of the suspicious circumstances raised by the

The Defendants' issue on testamentary capacity was not seriously disputed by the Plaintiff, whose case is not that the Deceased lacked mental capacity, but rather that the Deceased's thumbprint was obtained without his knowledge.

For completeness, this Court notes that the legal test for testamentary capacity is set out in the seminal English case of Banks v Goodfellow (1870) LR 5 QB 549, as adopted by the Federal Court in Chin Jhin Thien & Anor v. Chin Huat Yean & Anor [2020] 7 CLJ

The test requires that a testator understands the nature of the act and its effects, understands the extent of his property and is able to comprehend and appreciate the claims to which he ought to give effect. The Defendants also cited Tho Yow Pew & Anor v. Chua Kooi Hean [2002] 4 CLJ 90, where the Court of Appeal observed that "very slight testamentary capacity is required for the making of a Will".

However, as noted above, testamentary capacity was not the crux of the Plaintiff's challenge. His case centres on whether the Deceased's thumbprint was obtained without his knowledge. Accordingly, even accepting the low threshold for testamentary capacity, the central issue remains whether the Deceased consciously and knowingly executed the Second Will, a question that falls under the suspicious circumstances doctrine rather than the testamentary capacity inquiry.

Having considered the Issues to be Tried filed by both parties as above and the totality of the evidence adduced at trial, this Court finds that the main issues to be determined by this Court are as follows – Issue 1 : Whether the Plaintiff has established sufficient suspicious circumstances to shift the evidential burden to the Defendants; Issue 2 : Whether the Defendants have discharged the evidential burden to prove due execution of the Second Will; Issue 3 : Whether the Deceased's thumbprint on the Second Will was affixed with the Deceased's knowledge and consent (i.e., whether the Deceased "made" the Will as questioned in Enclosure 108 item 2(a)); and Issue 4 : Whether SD1's evidence is credible and sufficient without corroboration.

The Plaintiff's case, as clarified in his Reply Submission, is not that the thumbprint on the Second Will is not the Deceased's thumbprint. The Plaintiff accepts that the thumbprint IS the Deceased's thumbprint. The Plaintiff's case is that the thumbprint was taken without the Deceased's knowledge while the Deceased was gravely ill and under the control of the Defendants.

This is consistent with the Plaintiff's Issues to be Tried that : "Did the deceased make the Will?"

The Plaintiff's position is that while the thumbprint may be the Deceased's, the Deceased however did not consciously "make" the Will - i.e., he did not knowingly and Willingly affix his thumbprint to a document he understood to be his Will.

The Plaintiff relies on numerous suspicious circumstances as testified before this Court to support his case and highlighted in his written submissions as follows –

the Deceased always signed documents but the Second Will only bears a thumbprint without signature, the clerk says she saw testator “menurunkan tandatangan” but there is no “tandatangan” only a “cap jari”;

a thumbprint can be taken from a person without their knowledge (e.g., while sleeping or unconscious), whereas a signature requires conscious action;

the Deceased was in the custody of the Defendants;

the Deceased does not understand English language, yet the Will was prepared in English;

the Deceased had 3 sons but only the 2nd daughter was named in the Will and her husband named as executor;

the clerk's (Sharadah) signature is not in the Will but she attaches a piece of paper to the purported Will saying she witnessed the Will;

the clerk in her witness affidavit says her solicitor "read over" the Will but the Will is in English language which the Deceased did not understand;

the solicitor did not affirm a witness affidavit when applying for letters of Probate;

the police report was made only after the Deceased came under the Defendants' control; and

the false pleading that the Deceased was in the Defendants' custody for "10 years" when it was actually only about one year.

The Defendants deny all allegations of fraud, conspiracy, and undue influence. The Defendants contend that –

the Deceased possessed the requisite testamentary capacity to execute the Will;

the Will dated 5.09.2012 was not executed in breach of the Act 346;

there was no conspiracy between the 1st and 2nd Defendants in the preparation of the Will;

there was no fraud involved in the preparation of the Will; and

the Plaintiff has not sufficiently pleaded particulars of fraud and conspiracy.

The Defendants rely primarily on the evidence of SD1, the solicitor who prepared and witnessed the Second Will. SD1 testified that –

the Deceased first came to her office about one week before the execution to inquire about the procedure and charges for making a Will;

the Deceased returned a few days later and gave instructions for the preparation of the Will;

the Deceased instructed her to leave all his properties to his eldest daughter (the 2nd Defendant) because she had been taking care of him during his old age;

she explained the Will to the Deceased in Tamil before execution;

the Deceased was alert, coherent and understood the nature and consequences of making a Will;

the Deceased chose to affix his thumbprint instead of signing; and

the Will was executed in the presence of herself and her clerk, Sharadah.

The Defendants also argue that since the Second Will has been probated, the burden of proof lies entirely on the Plaintiff to prove his case on the balance of probabilities and that the Plaintiff has failed to discharge this burden.

It is well established that where a Will has been probated, the legal burden lies on the party challenging the Will to prove their case on the balance of probabilities. This principle was enunciated by the Federal Court in Ong Eng Hock& Anor v. Ong Cheng Guan & Anor [2018] 7 CLJ 154 and affirmed in Chin Jhin Thien & Anor v. Chin Huat Yean & Anor [2020] 7 CLJ 137.

However, it is important to distinguish between the legal burden and the evidential burden. The legal burden remains on the Plaintiff throughout. However, the evidential burden may shift when the Plaintiff establishes a prima facie case of suspicious circumstances. In Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697, the Federal Court explained that the legal burden never shifts but the evidential burden shifts based on the weight of evidence.

The law relating to suspicious circumstances in the context of Wills was established in the seminal cases of Barry v Butlin (1838) 2 Moo. P.C. 480 and Tyrrell v Painton [1894] P 151. Where suspicious circumstances are present, the propounder of the Will must affirmatively prove that the testator knew and approved of the contents of the Will. (see : Teoh Ying Rin v Savatery a/p Jayaraman [2025] MLJU 215).

In Tyrrell v Painton, Lindley LJ stated: "The principle is that wherever a Will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed".

Suspicious circumstances include but are not limited to –

Will prepared by or for the benefit of a person who takes a substantial benefit under it;

the physical or mental condition of the testator at the time of execution;

circumstances suggesting fraud, forgery or undue influence; and

irregularities in the execution process.

Section 5(2) of Act 346 provides that a thumbprint is a valid form of execution of a Will. This is not disputed. However, as highlighted by the Plaintiff's Issues, the clerk Sharadah stated in her affidavit that she saw the testator “menurunkan tandatangan” (affix his signature), but there is no “tandatangan” (signature) on the Will. Only a “cap jari” (thumbprint).

This Court notes the authorities cited by the Defendants on this point. In Karn Woon Lin & Anor v Cheah Chor Bok [2010] 5 MLJ 834, the High Court recognised a thumbprint as a valid mode of attestation of a Will. The Defendants also cited the English High Court decision of Adekemi Adewunmi Osawese Otitoju v Benedicta Ngozi Onwordi; Adefunmilayo Adesanya v Adekemi Adewunmi Osawese Otitoju [2023] EWHC 2665 (Ch), where it was held that a testator may comply with the requirement of signing by affixing a fingerprint if he intends thereby to authenticate the document.

This Court accepts these authorities. The validity of a thumbprint as a mode of execution under s.5(2) of Act 346 is not in dispute. However, as highlighted in the Plaintiff's Issues, the real question in this case is not whether a thumbprint is generally valid, but whether this particular thumbprint was affixed by the Deceased with his knowledge and consent. A thumbprint, unlike a signature, can be obtained from a person without their active participation or even knowledge. Adverse Inference under Section 114(g) Evidence Act 1950

Section 114(g) of the Evidence Act 1950 [Act 56] provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the party who withholds it. This principle applies when a material witness within the control of a party is not called without reasonable explanation.

Against these backdrop, this is the Court analysis and findings.

Based to the totality of the evidence, this Court finds that the Plaintiff has successfully established cumulative and substantial suspicious circumstances sufficient to shift the evidential burden to the Defendants. This Court shall now address each of these circumstances in detail, with reference to the issues raised by the parties in Enclosures 106 and 108.

Thumbprint Without Signature - "Cap Jari" vs "Tandatangan"

This issue was specifically highlighted in the Plaintiff's Issues that : "clerk says she saw testator “menurunkan tandatangan” but there is no “tandatangan” only a “cap jari”.

To this Court’s mind, the most glaring fact is why the Deceased, who signed the First Will in 1988 when he was 57 years old, only affixed his thumbprint without any signature on the Second Will when he was 81 years old. The First Will bears both the Deceased's signature and his thumbprint. The Second Will bears ONLY a thumbprint.

SD3 (the 2nd Defendant) agreed under cross-examination that her father was healthier at age 81 (2012) than at age 57 (1988) – “Q : Your father was healthier at 81 compared to when he was 57? A : Setuju [Agree]".

Most critically, SD1 herself admitted during cross-examination that a thumbprint can be taken from a sleeping person – “Q : A thumbprint can be taken while a person is sleeping? A : Possible".

This admission is highly significant. It opens the door to the Plaintiff's theory that the Deceased's thumbprint could have been obtained without his knowledge.

No Precautions Taken for an 81-Year-Old Testator

The Plaintiff's Issues raised the question : "Testator almost 86 years old when purportedly made Will, did he know it is a Will" (although the correct age was 81, not 86).

SD1 admitted that she took no precautionary measures whatsoever for an 81-year-old disabled testator – “Q : Did you take any precaution for the 81-year-old testator? A : True, no".

SD1 also admitted that she made no recording of the testator's instructions.

Language Issue

The Plaintiff's Issues specifically raised these concerns : "deceased does not understand English language" and "clerk in her witness affidavit says her solicitor read over the Will but the Will is in English language".

This Court observed that there is a material contradiction between SD1's testimony and Sharadah's Affidavit –

SD1 testified that she "explained in Tamil" the contents of the

Sharadah's Affidavit states that the Will was "read" to the Deceased (implying in English, as the Will was in English).

To this Court’s mind, “Explained in Tamil" and "read" are two entirely different things. This contradiction cannot be resolved because Sharadah was not called as a witness.

Clerk's Signature on Separate Page

The Plaintiff's Issues highlighted : "clerk's signature is not in the Will but she attaches a piece of paper to the purported Will saying she witness the Will".

SD1 admitted that there was space on page 17 for Sharadah to sign, yet Sharadah signed on a separate page – “Q : Is there space at the bottom of page 17 for Sharadah to sign? A : Ada sedikit, yes."

If there was space for Sharadah to sign on the same page as the Deceased's thumbprint, why did she sign on a separate page? This circumstance supports the Plaintiff's theory that the pages may have been assembled after the thumbprint was obtained.

The Defendants relied on In the Goods of Braddock[1876] Volume 1 P.D 433 for the proposition that attestation may appear on a different page from that of the testator, as long as there is evidence that the witnesses intended to attest the execution of the Will. This Court accepts the principle in Goods of Braddock. However, in Goods of Braddock, one of the attesting witnesses (Sarah Jane Williams) filed an affidavit confirming that in writing her name on the back of the original Will, to which the codicil was attached by a pin, she intended to attest both the alteration in the original Will and the execution of the codicil. It was this affidavit evidence that satisfied the Court of the witnesses’ intention.

In the present case, Sharadah, the very witness whose signature appears on the separate page, was not called to give oral testimony and was not available to confirm her intention to attest. This Court has already drawn an adverse inference under s.114(g) of Act 56 from the failure to call Sharadah. Without Sharadah’s testimony, the Defendants cannot rely on Goods of Braddock to cure the irregularity, as the essential precondition in Goods of Braddock, namely, evidence of the witness’s intention is absent here.

This Court further notes the Plaintiff’s observation that the font size on page 17 of the Second Will, the page bearing the Deceased’s thumbprint, appears to differ from the font size on pages 15, 16 and

When this was put to SD1 during cross-examination, she did not agree that the font sizes were different. Be that as it may, this Court has examined the Second Will and observes that the formatting on page 17 does appear to differ from the other pages. Additionally, none of the other pages of the Will bear any initials or thumbprint of either the testator or the attesting witnesses, as would ordinarily be expected in a multi-page Will. These observations, while not conclusive on their own, are consistent with the Plaintiff’s theory that page 17 may have been prepared separately and the other pages added to it subsequently.

Solicitor Did Not File Witness Affidavit

The Plaintiff's Issues raised the pertinent question : "why did not the solicitor affirm a witness affidavit when applying for letters of

The Defendants sought to explain this by reference to Order 71 rule 9(1) of the Rules of Court 2012 (“ROC 2012”), which requires only one witness affidavit. However, this Court observed that it is unusual for a solicitor who witnessed the execution of a Will to not file an affidavit, leaving only her clerk's affidavit as evidence of due execution. This omission is a relevant circumstance.

Sole Beneficiary and Sole Executor

The Plaintiff's Issues raised : "deceased had 3 sons but why only the 2nd daughter named in the purported Will and her husband named as executor".

As confirmed in the Agreed Facts (Enclosure 107), the 1st Defendant is the 2nd Defendant's husband. The Second Will names the 2nd Defendant as Sole Beneficiary and her husband, the 1st Defendant, as Sole Executor. This means all of the Deceased's properties would belong to the 2nd Defendant alone, completely excluding the Deceased's wife and four other children including three sons.

The situation where a beneficiary or a person closely connected to the beneficiary is involved in the procurement of a Will is a classic circumstance that raises suspicion. (See : Barry v Butlin).

The Defendants relied on In the Estate of Ethel Mary Good Deceased Between Natividade Ines Maricota Ferreira Carapeto v William Marsh Good and Others [2002] EWHC 640 (Ch), where the English High Court upheld a Will naming a non-family caregiver as the principal beneficiary, to the exclusion of the testator’s own family members. The Court in that case was satisfied that the testator was "very much her own woman who retained her high intelligence, was fully alert mentally and fully capable of making her own decisions", as confirmed by various solicitors who attended to her.

This Court distinguishes the present case from In the Estate of Ethel Mary Good on the following grounds. First, in that case, the solicitor’s evidence was unchallenged and consistent with the evidence of other professionals. Here, SD1’s evidence is uncorroborated (i.e Sharadah was not called) and internally contradicted. Second, in that case, there was no dispute about the testator being physically present and consciously executing the Will. Here, the Plaintiff’s case is that the Deceased’s thumbprint was obtained without his knowledge. Third, in that case, the testator was described as highly independent and intelligent. Here, the Deceased was an 81-year old disabled man who could not read English, the language in which the Will was prepared. The factual matrix is materially different.

Death 4 Months After Will

The Plaintiff's Issues noted that the Deceased "died 4 months after purportedly making Will". While proximity to death alone does not invalidate a Will, it is a relevant circumstance when considered together with other suspicious factors, particularly the sudden stroke suffered by the Deceased.

False Pleading

In the Defendants' pleadings, it was stated that the Deceased had been in their custody for 10 years before his death. However, SD3 (the 2nd Defendant) admitted under cross-examination that the Deceased was only brought from Pulau Pinang to Johor in January 2012 - only approximately ONE year before his death in January 2013.

This material false statement in the Defendants' pleading seriously undermines their credibility.

This Court further notes that when the Defendants applied for a Grant of Probate for the Second Will under Originating Summons No. 32NCVC-320-09/2014, the existence of the First Will dated 12/02/1988 was not disclosed to the Registrar. There is no evidence before this Court that the Registrar was informed of the prior Will. While the non-disclosure does not by itself invalidate the probate, it is a relevant circumstance that further undermines the Defendants’ credibility.

Police Report

SD3 admitted under cross-examination that the Deceased never made a police report while living in Pulau Pinang for decades, but made one only after coming under the Defendants' control in Johor.

Failure to Call Sharadah as Witness

The Defendants did not call Sharadah as a witness to give oral testimony. This Court invokes section 114(g) of the Evidence Act 1950 to draw an adverse inference. The failure to call Sharadah, who is a material witness within the Defendants' control, leads to the inference that her testimony, if given, would have been unfavourable to the Defendants' case.

Having established that the Plaintiff has demonstrated cumulative and substantial suspicious circumstances, the evidential burden shifted to the Defendants to prove due execution and that the Deceased's thumbprint was affixed with his knowledge and consent, i.e., to prove that the Deceased truly "made" the Will as questioned in Enclosure 108.

This Court finds that the Defendants have failed to discharge this burden for the following reasons –

the Defendants have not satisfactorily explained why a testator who always signed documents suddenly only thumbprinted the

the Defendants have not explained the contradiction between SD1's evidence and Sharadah's Affidavit regarding whether the Will was "explained in Tamil" or "read";

the Defendants failed to call Sharadah as a witness to corroborate SD1's evidence;

the Defendants have not explained the false statement of "10 years" custody;

SD1 took no precautionary measures for an 81-year-old disabled testator and made no recording of the testator's instructions;

SD1's evidence is uncorroborated and her credibility is questionable; and

SD1's admission that a thumbprint CAN be taken from a sleeping person raises serious doubt whether the thumbprint was knowingly affixed.

The Defendants raised in their Issues whether the Plaintiff has "sufficient pleaded particulars of fraud and conspiracy". During trial, Defence counsel objected to the Plaintiff's suggestion that SD1 received RM30,000.00 payment to sign the Will, arguing that this specific amount was not pleaded and describing the question as "scandalous". The Plaintiff's counsel acknowledged that the specific sum of RM30,000.00 was not pleaded but maintained that "conspiracy" was generally pleaded. This Court directed parties to address this issue in their written submissions.

Having considered the parties' submissions on this point, this Court finds that while the specific sum of RM30,000.00 was not pleaded, the Plaintiff did plead conspiracy generally. However, this Court's decision does not rest on the RM30,000.00 allegation. The suspicious circumstances doctrine, which this Court has found to be satisfactorily established, operates independently of the specific fraud allegations. Even disregarding the RM30,000.00 allegation entirely, the cumulative suspicious circumstances as set out above are sufficient to shift the evidential burden to the Defendants, which burden they have failed to discharge.

The Defendants cited several authorities on the requirement for fraud to be specifically pleaded with full particulars. (See : He-Con Sdn Bhd v. Bulyah Ishak & Anor and Another Appeal [2020] 5 MLRA 98; Superwood Holdings plc, Superwood Ltd., Superwood Exports Ltd., Superchip Ltd., Superwood International Ltd. and Superwood (U.K.) Ltd., Plaintiffs v. Sun Alliance and London Insurance plc trading as Sun Alliance Insurance Group, Prudential Assurance Сo. Ltd., Church & General Insurance Co. Ltd. and Raymond P. McGovern, Defendants [1995] 3 IR 303; and Wong Yew Kwan v Wong Yu Ke & Anor [2009] 2 MLJ 672).

This Court accepts these principles. Fraud must be pleaded with particularity so that the opposing party knows the case it has to meet. However, this Court’s decision does not rest on the specific fraud allegations or the RM30,000.00 allegation, which this Court has expressly disregarded. The decision rests on the suspicious circumstances doctrine as established in Barry v Butlin and Tyrrell v Painton.

The suspicious circumstances doctrine is a distinct legal principle that operates independently of any plea of fraud. It arises from the evidential assessment of the circumstances surrounding the execution of the Will, and does not require the same level of particularity in pleading as fraud. The cumulative suspicious circumstances as set out above are sufficient in themselves to shift the evidential burden, which the Defendants have failed to discharge.

SD1's evidence is the cornerstone of the Defendants' case. However, this Court finds that SD1's evidence is suspect for the following reasons –

First, SD1 displayed a pattern of evasive answers throughout cross-examination. When asked about straightforward facts, SD1 responded with evasive phrases such as "I am not authority to agree on this!"

Second, SD1's explanation that she merely "obliged" the Deceased's choice to thumbprint is unsatisfactory. As a solicitor admitted to practice since 1995, SD1 should have ensured proper execution of the Will, particularly for an elderly testator making an extraordinary disposition that excludes most of his family.

Third, SD1's evidence stands alone without corroboration. Without Sharadah's testimony, this Court has only SD1's word to prove due execution.

Fourth, there is a contradiction between SD1's testimony (that she "explained in Tamil") and Sharadah's Affidavit (that the Will was "read") - a contradiction that cannot be resolved without Sharadah's oral evidence.

This Court also notes that SD2’s evidence was similarly unsatisfactory. SD2 was evasive throughout cross-examination, frequently answering he don’t remember to material questions, including questions about his own witness statement and the Indian court proceedings. SD2 was also inconsistent. During cross-examination he stated he took the Deceased to the solicitor’s firm once, but during re-examination he changed this to twice. SD2’s overall demeanour did not inspire confidence in the truthfulness of the Defendants’ account.

The Defendants raised the point that the Plaintiff knew of the Second Will in 2015 but only filed this suit in 2021. While this delay is noted, this Court does not find it fatal to the Plaintiff's case as the Plaintiff was not served with the Probate application and only became aware of the full circumstances through the Indian High Court’s proceedings.

Based on the above analysis and having addressed the issues raised by both parties, this Court finds that the Plaintiff has successfully proven his case on the balance of probabilities. The cumulative suspicious circumstances are so substantial that this Court cannot accept that the Second Will reflects the free and true wishes of the Deceased.

The most troubling aspect is SD1's admission that a thumbprint can be taken from a sleeping person, combined with the undisputed fact that the Deceased, who always signed documents and who signed the First Will, suddenly only thumb printed the Second Will which disinherited his wife and most of his children. Without a satisfactory explanation and without corroborating evidence from Sharadah, this Court cannot be satisfied that the Deceased's thumbprint was affixed with his knowledge and consent.

As stated in Tyrrell v Painton, where a Will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed. In this case, the suspicion has not been removed.

In the circumstances, this Court makes the following orders –

The Plaintiff's claim is allowed;

A Declaration that the Will dated 05/09/2012 purportedly being the last Will and Testament of the late Perumal a/l Gavaran is null and void and of no legal effect;

The Grant of Probate dated 21/10/2014 issued pursuant to Originating Summons No. 32NCVC-320-09/2014 is hereby revoked;

All actions taken pursuant to the said Will dated 05/09/2012 are declared null and void;

Costs of RM50,000.00 subject to the allocator. Dated : 5 January 2026 -signed-Dr Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiffs : : M.K.Ganeson Messrs. M K Ganeson & Associates Solicitor for the Defendants : : S. Parameswaran Messrs. S Param & G Thila