LB5304- PROFESSIONAL PRACTICE II

(El-Harouna Advocates & Solicitors)

Dk. Nur Hurin Faaiqah binti Pg Ahmad (17B0207)

Dk. Nurhamziah Nabihah binti Pg Ahmad Mustajaf (17B0214)

Norsafrena binti Saflie (17B0232)

Norsuziyani binti Abdullah (17B0233)

Seri Nur Mumtazah binti Seri Asnola (17B0253)

Siti Khadijah binti Upli (17B0255)

Siti Nur Syakirah Atiqah binti Mahli (17B0256)

BACHELOR OF LAWS (LLB) AND BACHELOR OF SHARIAH LAW (BSL)

Faculty of Shariah and Law

Sultan Sharif Ali Islamic University

Brunei Darussalam

1443H/2022M

YEAR 5 SEMESTER 2
 TABLE OF CONTENT
Page

PART I: PROBATE & ADMINISTRATION OF ESTATES

1. Ch’ng Kheng Phong v Chung Keng Huat & Ors..............................................................................1

2. Randolph Yap Pow Kong & Anor v Yvonne Yap Yoke Sum (f) & Ors............................................2
3. Choo Mooi Kooi @ Choo Soo Yin v Choo Choon Jin @ Jimmy Choo and other suits...................3
4. Hiroto Watanabe v Law Yen Yen & Anor........................................................................................4
5. Selvarajoo a/l Palaniappa Pillai v Paramasivam a/l Palaniappa Pillai...............................................5
6. Tok Siew Ling & Anor v Low Chee Choy........................................................................................6

PART II : BANKRUPTCY AND WINDING-UP

7. Re Tan Hwee Earn ex p The Peoples Insurance Co Sdn Bhd.......................................................150
8. Re Aisha Zainab Mahmud.............................................................................................................153
9. Vijendran Ponniah v MBF Country Homes & Anor.....................................................................156
10. Datuk Mohd Sari v Norwich Winterthur Insurance......................................................................160
11. Re Ismail bin Daud and Hajah Qameriah......................................................................................172
12. Wong Su Tiung ex parte Yeo Hiap Seng Trading Sdn. Bhd.........................................................181
13. Ghazali bin Mat Noor v Southern Bank Bhd.................................................................................187
14. Low Mun v Chung Khiaw Bank Ltd ............................................................................................192
15. United Overseas Bank Bhd v Loke Lai Ying & Another..............................................................198
16. Re Chen Chong Fatt Willy; ex parte Hitachi Lease .....................................................................198
17. Dr R Ramachandran, ex parte Ganeswary a/p Ponnudurai...........................................................198
18. Yeo Ah Wang v UMBC ...............................................................................................................198
19. Khoo Kay Hoe v Chor Phaik Har and Another Appeal.................................................................198
20. Re Khong yoen Leng ex parte Selberan Co Sdn Bhd....................................................................198
 PART I: PROBATE & ADMINISTRATION OF ESTATES

1. CH’NG KHENG PHONG V CHUNG KENG HUAT & ORS

Civil Procedure — Pleadings — Facts not pleaded — Existence of second will — Whether second
will a forgery — Whether facts on circumstances leading to finding of second will pleaded —
Whether evidence on circumstances leading to finding of second will ought to be rejected

Evidence — Expert evidence — Handwriting — Conflicting opinions of opposing handwriting

experts — Whether expertise established — Whether qualified, experienced and having had
testified in court — Role of handwriting expert purely to assist court — Court to finally determine
question or issue at hand — Whether opinion well founded or supported with sufficient evidence

Succession — Probate — Validity of will — Existence of second will — Validity of first will
established — Second will surfacing after 100 days prayer of death of deceased — Whether second
will a forgery — Burden of proof on propounder — Whether there was evidence regarding
circumstances leading to finding of second will — Suspicious circumstances in relation to
preparation of second will — Failure to state identity card numbers of deceased, executors and
trustees — Whether second will duly witnessed
Chung Beng Eng, the deceased, died on 28 August 1999. The plaintiff, the first
defendant, Ch'ng Kheng Cheang, Chung Keng Leng, Chung Keng Chew and Chong Yin Cheng were the
lawful children of the deceased. The second defendant was the daughter-in-law being the wife
of Ch'ng Kheng Cheang while the third defendant was the grandson of the deceased being the son
of Ch'ng Kheng Cheang. Dispute arose when in the existence of a will of the deceased dated 29 August
1997 ('the first will') where the plaintiff and Chung Keng Chiew were the executors and trustees, another
will dated 31 October 1998 ('the second will') surfaced after the 100 days prayer of the death of the
deceased. The plaintiff was informed by the first defendant on 5 December 1998 that the alleged second
will was found among the photographs of their late parents. The first will was prepared by lawyer Miss
Caroline Heah ('PW3') and signed by her together with her mother Pow Khoon Sim as witnesses to the
signature of the deceased on the first will on 29 August 1997. Madam Pow Khoon Sim was a close friend
of the deceased. The second will was allegedly[2011] 8 MLJ 32 at 33prepared by lawyer Chew Sien
Chee who had passed away in March 2000, allegedly witnessed by him and Mr Koh Seong Hai ('DW2'), a
cousin of the plaintiff and first defendant and the brother-in-law of Chew Sien Chee. All the three
defendants are the executors and trustees of the second will. The beneficiaries in the first will and the
second will were also different; in particular, the plaintiff who was bequeathed 35% of the deceased's
shares in Chung Beng Eng Realty Sdn Bhd in the first will, was not devised anything in the second will
except the sum of RM99.99 while the first defendant who was not bequeathed any benefit in the first will
was made an executor and trustee, bequeathed a sum of RM99.99 and his children also benefited from the
second will. The plaintiff contended that the second will was forged and sought a declaration that the first
will was the valid last will and testament of the deceased. He also prayed that the petition for probate no
32–32 of 2000 filed by the defendants be struck out. The defendants on the other hand contended that the
second will being the later will was the last will and testament of the deceased which superseded the first
will. The issues agreed by both parties to be tried were: (i) whether the deceased had made the first will;
and (ii) whether the deceased could have made the second will and whether the second will was a forgery.
The plaintiff called PW2, a handwriting expert, whereas the defendants called DW7, also a handwriting
expert. Both the handwriting experts gave conflicting views or opinions.
Held, allowing the plaintiff's claim:
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  (1)PW2 and DW7 were expert witnesses having satisfied the three criteria of being qualified,
experienced and having testified in court before as laid down in Wong Chop Saow  v  Public
Prosecutor [1965] 1 MLJ 247 (see para 24).
 (2)The first will was prepared by PW3, duly signed by the deceased in the presence of PW3 and
Madam Pow who witnessed the deceased's signature thereon. The first will was duly executed on
29 August 1997 as the last will and testament of the deceased and was a valid will (see para 44).
 (3)In the defendant's statement of defence, it was pleaded that the first defendant had found the
second will among some photographs. No other facts were pleaded and no evidence was led as to
when and where he had found it. The first defendant was attempting to say he found the second
will in Canada but this fact was not so pleaded. It is trite that any unpleaded fact ought to be
rejected as trial should be confined to the pleadings (see para 46).
 (4)The burden was on the defendants propounding the second will to prove it to be the valid last
will and testament of the deceased. There were suspicious circumstances raised in relation to the
preparation of the second will. It did not carry the identity card numbers of the deceased,[2011] 8
MLJ 32 at 34the executors and trustees. Citing the name and identity card number of the testator
and executors and/or trustees is so fundamental a prudent practice and requirement that no solicitor
preparing an important document such as a will would have missed or ignored to follow. Failure to
include the said IC numbers in a will prepared by a lawyer, was an abnormal act. This omission
gave rise to suspicious circumstances (see paras 48 & 51).
 (5)The date of the second will was 31 October 1998 which fell on a Saturday. The evidence of the
plaintiff and PW4 (the sole daughter in the family) showed that the deceased had not gone to
Chew Sien Chee's office on 31 October 1998. PW4 was an independent and not an interested
witness. This raised a doubt that deceased could have been to Chew Sien Chee's office on 31
October 1998. Further, the fact that DW2 was unable to say in what colour ink the deceased had
allegedly signed his will led to the grave doubt whether DW2 had actually witnessed deceased's
alleged signature. Further, based on the demeanour when he gave evidence, DW2 did not appear to
be a credible and reliable witness (see paras 53 & 58).
 (6)The role of an expert is to explain the technical part of the document, handwriting or signature
and gives his opinion upon his analysis coupled with his reasons. It is purely to assist the court
which shall determine upon the questions or issues for which the expert was called. The final
determination of the question or issue is upon the court to arrive at (see para 61).
 (7)The court did not prefer the opinion of DW7 as the court was not satisfied that his opinion was
well founded or supported with sufficient evidence. The court preferred the evidence of PW2 who
had conducted a detailed and comprehensive analysis which was well-grounded. On a balance of
probabilities, the court accepted that the signature of the deceased in the second will was most
probably a forgery (see para 77).
Chung Beng Eng, si mati, telah meninggal dunia pada 28 Ogos 1999. Plaintif, defendan
pertama, Ch'ng Kheng Cheang, Chung Keng Leng, Chung Keng Chew dan Chong Yin Cheng adalah
anak-anak sah si mati. Defendan kedua adalah menantu perempuan iaitu isteri Ch'ng Kheng Cheang
manakala defendan ketiga adalah cucu lelaki si mati iaitu anak Ch'ng Kheng Cheang. Pertikaian timbul
apabila dengan kewujudan wasiat si mati bertarikh 29 Ogos 1997 ('wasiat pertama') di mana plaintif
dan Ch'ng Kheng Chiew adalah wasi-wasi dan pemegang-pemegang amanah, satu lagi wasiat bertarikh
31 Oktober 1998 ('wasiat kedua') timbul selepas 100 hari menghormati kematian si mati. Plaintif telah
4
dimaklumkan oleh defendan pertama pada 5 Disember 1998 bahawa wasiat kedua yang dikatakan itu
ditemui antara gambar-gambar[2011] 8 MLJ 32 at 35foto mendiang ibu bapa mereka. Wasiat pertama itu
telah disediakan oleh peguam Cik Caroline Heah ('PW3') dan telah ditandatangani olehnya bersama
dengan ibunya Pow Khoon Sim sebagai saksi kepada tandatangan si mati pada wasiat pertama itu pada 29
Ogos 1997. Puan Pow Khoon Sim merupakan kawan rapat si mati. Wasiat kedua itu dikatakan telah
disediakan oleh peguam Chew Sien Chee yang telah meninggal dunia pada bulan Mac 2000, dikatakan
telah disaksikan olehnya dan Encik Koh Seong Hai (DW2), sepupu plaintif dan defendan pertama dan
abang ipar Chew Sien Chee. Ketiga-tiga defendan merupakan wasi-wasi dan pemegang-pemegang
amanah wasiat kedua. Benefisiari-benefisiari dalam wasiat pertama dan wasiat kedua juga berbeza,
terutamanya plaintif yang telah diwasiatkan 35% daripada saham si mati dalam Chung Beng Eng Realty
Sdn Bhd dalam wasiat pertama, tidak diwasiatkan apa-apa dalam wasiat kedua kecuali sejumlah RM99.99
manakala defendan pertama yang tidak diwasiatkan apa-apa manfaat dalam wasiat pertama telah
dijadikan wasi dan pemegang amanah, diwasiatkan sejumlah RM99.99 dan anak-anaknya juga mendapat
manfaat daripada wasiat kedua itu. Plaintif berhujah bahawa wasiat kedua itu telah dipalsukan dan
memohon deklarasi bahawa wasiat pertama adalah wasiat dan amanat terakhir si mati yang sah. Dia juga
memohon agar petisyen untuk probet No 32-32 tahun 2000 yang difailkan oleh defendan-defendan
dibatalkan. Defendan-defendan sebaliknya berhujah bahawa wasiat kedua yang merupakan wasiat
terkemudian adalah wasiat dan amanat terakhir si mati yang membatalkan wasiat pertama. Isu-isu yang
dipersetujui untuk dibicarakan oleh kedua-dua pihak adalah: (i) sama ada si mati telah membuat wasiat
pertama itu; dan (ii) sama ada si mati mungkin telah membuat wasiat kedua itu dan sama ada wasiat
kedua itu palsu. Plaintif telah memanggil PW2, pakar tulisan tangan, manakala defendan-defendan telah
memanggil DW7, juga pakar tulisan tangan. Kedua-dua pakar tulisan tangan memberi pandangan atau
pendapat bertentangan.
Diputuskan, membenarkan tuntutan plaintif:
 (1)PW2 dan PW7 adalah saksi-saksi pakar setelah memenuhi tiga kriteria kelayakan,
berpengalaman dan telah memberi keterangan di mahkamah sebelum ini seperti yang diputuskan
dalam kes Wong Chop Saow v Public Prosecutor [1965] 1 MLJ 247 (lihat perenggan 24).
 (2)Wasiat pertama telah disediakan oleh PW3, telah ditandatangani oleh si mati dengan kehadiran
PW3 dan Puan Pow yang menjadi saksi tandatangan si mati. Wasiat pertama itu telah
disempurnakan pada 29 Ogos 1997 sebagai wasiat dan amanat terakhir si mati dan adalah wasiat
yang sah (lihat perenggan 44).
 (3)Dalam penyataan pembelaan defendan, ia telah diplidkan bahawa defendan pertama telah
jumpa wasiat kedua antara beberapa gambar-gambar foto. Tiada fakta lain diplidkan dan tiada
keterangan[2011] 8 MLJ 32 at 36tentang bila dan di mana dia menjumpainya. Defendan pertama
cuba menyatakan dia menjumpai wasiat kedua itu di Kanada tetapi fakta ini tidak diplidkan.
Adalah undang-undang tetap bahawa apa-apa fakta yang tidak diplidkan patut ditolak kerana
perbicaraan patut terbatas kepada pliding-pliding (lihat perenggan 46).
 (4)Beban terletak atas defendan-defendan yang mengemukakan wasiat kedua untuk membuktikan
ianya wasiat dan amant terakhir si mati. Wujud keadaan-keadaan mencurigakan yang ditimbulkan
berkaitan persediaan wasiat kedua. Ia tidak mempunyai nombor-nombor kad pengenalan si mati,
wasi-wasi dan pemegang-pemegang amanah. Penyataan nama dan nombor-nombor kad
pengenalan pewasiat dan wasi-wasi dan/atau pemegang-pemegang amanah adalah amalan dan
keperluan penting yang mana seorang peguam itu tidak akan tertinggal atau lalai untuk
melaksanakannya apabila menyediakan dokumen sepenting wasiat ini. Kegagalan menyatakan
nombor-nombor kad pengenalan dalam wasiat yang disediakan oleh peguam adalah satu perbuatan
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 yang luar biasa. Peninggalan ini menimbulkan keadaan yang mencurigakan (lihat perenggan 48 &
51).
 (5)Tarikh wasiat kedua adalah 31 Oktober 1998 yang jatuh pada hari Sabtu. Keterangan plaintif
dan PW4 (satu-satunya anak perempuan dalam keluarga itu) menunjukkan bahawa si mati tidak
pergi ke pejabat Chew Sien Chee pada 31 Oktober 1998. PW4 merupakan saksi berasingan dan
bukan saksi berkepentingan. Ini menimbulkan keraguan bahawa si mati mungkin telah ke pejabat
Chew Sien Chee pada 31 Oktober 1998. Selanjutnya, fakta bahawa DW2 tidak dapat menyatakan
warna dakwat pen yang dikatakan digunakan oleh si mati untuk menandatangani wasiatnya
membawa kepada keraguan sama ada DW2 sebenarnya telah menjadi saksi tandatangan si mati
yang dikatakan itu. Selanjutnya, berdasarkan perlaku semasa dia memberi keterangan, DW2 tidak
kelihatan seperti saksi yang boleh dipercayai (lihat perenggan 53 & 58).
 (6)Peranan pakar adalah untuk menjelaskan bahagian teknikal dokumen, tulisan tangan atau
tandatangan dan memberikan pendapatnya berdasarkan analisisnya beserta sebab-sebabnya. Ia
semata-mata untuk membantu mahkamah yang akan menentukan berdasarkan persoalan-persoalan
atau isu-isu yang mana pakar itu telah dipanggil. Penentuan muktamad persoalan atau isu itu
adalah untuk diputuskan mahkamah (lihat perenggan 61).
 (7)Mahkamah tidak memilih pendapat DW7 kerana mahkamah tidak berpuas hati bahawa
pendapatnya berasas atau disokong keterangan yang mencukupi. Mahkamah memilih keterangan
PW2 yang telah melakukan analisis yang terperinci dan komprehensif yang berasas. Atas[2011] 8
MLJ 32 at 37imbangan kebarangkalian, mahkamah menerima bahawa tandatangan si mati dalam
wasiat kedua besar kemungkinan suatu pemalsuan (lihat perenggan 77).
Notes
For cases on facts not pleaded, see 2(3) Mallal's Digest (4th Ed 2010 Reissue) paras 6017–6025.
For cases on handwriting, see 7(1) Mallal's Digest (4th Ed 2010 Reissue) paras 1592–1601.
For cases on validity of will, see 11 Mallal's Digest (4th Ed 2008 Reissue) paras 2438–2446.
Cases referred to
Chin Sen Wah v PP [1958] MLJ 154 (refd)
Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC (refd)
Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, FC (refd)
Janagi v Ong Boon Kiat [1971] 2 MLJ 196 (refd)
Karthiyayani & Anor v Lee Liong Sin & Anor [1975] 1 MLJ 119, FC (refd)
PP v Mohamed Kassim bin Yatim [1977] 1 MLJ 64 (refd)
PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, FC (refd)
Sim Ah Song & Anor v Rex [1951] MLJ 150 (refd)
Tho Yew Pew & Anor v Chua Kooi Hean [2002] 4 CLJ 90 (refd)
United Asian Bank Bhd  v  Tai Soon Heng Construction Sdn Bhd [1993] 2 CLJ 31, SC (refd)
Wong Chop Saow  v  PP [1965] 1 MLJ 247 (refd)
6
Yew Wan Leong  v  Lai Kok Chye [1990] 2 MLJ 152, SC (refd)
Legislation referred to
Evidence Act 1950ss 101,102, 103

Karin Lim (Suppiah Arumugam with her) (Presgrave & Matthews) for the plaintiff.
Roy Rajasingham (Prema Joseph Vetharaj with him) (RR Singham) for the defendants.

Chew Soo Ho JC:

[1]  Chung Beng Eng, the deceased, died on 28 August 1999 at the age of 77 years while his wife pre-
deceased him in September 1998. The plaintiff, the first
defendant, Ch'ng Kheng Cheang, Chung Keng Leng, Chung Keng Chew and Chong Yin Cheng are the
lawful children of the deceased. The second[2011] 8 MLJ 32 at 38defendant is the daughter-in-law being
the wife of Ch'ng Kheng Cheang while the third defendant, the son of Ch'ng Kheng Cheang, is the
grandson of the deceased.
[2]  The dispute arose when in the existence of a will of the deceased dated 29 August 1997 ('the first
will') where the plaintiff and Chung Keng Chiew were the executors and trustees, another will dated 31
October 1998 ('the second will') surfaced after the 100 days prayer of the death of the deceased when the
plaintiff was informed by the first defendant on 5 December 1998 that the alleged second will was found
among the photographs of their late parents.
[3]  The first will was prepared by lawyer Miss Caroline Heah and signed by her together with her mother
Pow Khoon Sim as witnesses to the signature of the deceased on this first will on 29 August 1997 ('P2').
Madam Pow Khoon Sim was a close friend of the deceased.
[4]  The second will ('D41') was allegedly prepared by lawyer Chew Sien Chee who had passed away
since March 2000, allegedly witnessed by him and Mr Koh Seong Hai, a cousin of the plaintiff and first
defendant and the brother-in-law of Chew Sien Chee. All the three defendants are the executors and
trustees of this second will.
[5]  The beneficiaries in the first will and the second will are also different; in particular, the plaintiff who
was bequeathed 35% of the deceased's shares in Chung Beng Eng Realty Sdn Bhd in the first will, was
not devised anything in the second will except the sum of RM99.99 while the first defendant who was not
bequeathed any benefit in the first will was made an executor and trustee, bequeathed a sum of RM99.99
and his children also benefited from the second will.
[6]  The plaintiff contended that the second will is forged and sought a declaration that the first will is the
valid last will and testament of the deceased. He also prayed that the Petition for Probate No 32–32 of
2000 filed by the defendants be struck out or alternatively that the said petition be retained but with the
second will and the defendants being substituted by the first will and the plaintiff and Chung Keng Chiew
as the legal executors.
[7]  The defendants on the other hand contended that the second will being the later will was the last will
and testament of the deceased which supersedes the first will.
THE ISSUES
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[8]  The issues as agreed by both parties to be tried are contained in bundle E and can be deduced as
follows:
 (a)Whether the deceased had made the first will dated 29 August 1997; and
[2011] 8 MLJ 32 at 39
 (b)Having regard to all the circumstances of the case, whether the deceased could have made the
second will dated 31 October 1998 and whether the alleged signature of Chung Beng Eng,
deceased in the second will is the signature of Chung Beng Eng, deceased or whether the second
will dated 31 October 1998 is a forgery.
EVALUATIONThe plaintiff's case
[9]  Four witnesses including the plaintiff himself were called in the plaintiff's case. Their evidence are
briefly as follows:
[10]  The plaintiff ('PW1') testified vide his witness statement ('P1') that there are six siblings in the
family inclusive of himself namely:
 (a)Ch'ng Kheng Cheang, eldest brother;
 (b)Chong Yin Cheng, the only sister in the family (SP4);
 (c)Chung Keng Leng, the third brother in the family;
 (d)Chung Keng Huat, the first defendant; and
 (e)Chung Keng Chiew, the youngest brother.
[11]  The plaintiff is the second brother in the family. Both their parents have passed away. His
father Chung Beng Eng's death certificate was produced in p 1 of bundle B. His mother pre-deceased his
father. Between 1996 until his death on 28 August 1999, Chung Beng Eng ('the deceased'), lived at house
at No 7, Tingkat Binjai 20, Taman Sri Rambai, Bukit Mertajam as well as at No 67, Lebuh Binjai 2,
Taman Sri Rambai, Bukit Mertajam with the plaintiff and the plaintiff's family. These two houses are
about 100 metres apart. The deceased normally stayed at house No 7 during the day and at No 67 during
the night. According to the plaintiff, deceased died leaving a will dated 29 August 1997, the first will (P2)
which deceased had shown to the plaintiff and the plaintiff's family several times after his mother had
passed away and while his sister SP4 was visiting the deceased. Upon the deceased's death on 28 August
1999, relatives and friends including a lawyer Chew Sien Chee and his brother-in-law, Koh Seong Hai
attended the funeral.
[12]  On 7 September 1999, the plaintiff opened the safe of the deceased and found a brown sealed
envelope with the type-written words 'The Last Will & Testament of Chung Beng Eng'. He showed it to
his brothers. The sealed envelope was opened; it contained the last will of the deceased. It was read and
all the four brothers and the plaintiff respectively signed on the said envelope.[2011] 8 MLJ 32 at 40No
one had objected or challenged the first will but agreed that the plaintiff should call Miss Caroline Heah,
the lawyer who witnessed the will to read the will. The plaintiff's sister did not sign as she had no interest
in the property of the deceased. The plaintiff subsequently went to see Madam Pow Khoon Sim, the
mother of Caroline Heah and the second witness to the first will, to request her to contact Caroline Heah.
The plaintiff said before the deceased passed away, he had taken the deceased to meet Madam Pow and
Caroline Heah sometime in 1997. On or about 9 September 1999, Caroline Heah came to Bukit Mertajam
and met the plaintiff and Chung Keng Huat, the first defendant, who was representing also the other the
brothers who could not attend, in a coffee shop. The plaintiff handed the envelope with the five signatures
8
of the brothers to Caroline Heah who took out a copy of the first will in her possession. She showed both
copies and compared them in their presence. The contents of the will were the same. She then read the
contents. The plaintiff and the first defendant agreed that the first will was the last will of the deceased.
The first defendant then said he represented the other three brothers and agreed that Caroline Heah could
apply for probate for which plaintiff also agreed. The plaintiff and his youngest
brother Chung Keng Chiew were named as executors and trustees in this first will. Miss Caroline Heah
did proceed to apply for the grant of probate but amidst that, Chung Keng Chiew had appointed Messrs
Chew Sien Chee & Co, advocates & solicitors and had queried Caroline Heah's capacity as solicitors
for Chung Keng Chiew alleging that he had never appointed Caroline Heah to act for him.
[13]  On 5 December 1999 at the 100 days prayer for the deceased at the plaintiff's house, the first
defendant threw a disc to the plaintiff saying that he had found another will of the deceased in between
photographs of their parents. The plaintiff was asked to read the disc. This alleged will was prepared by
Messrs Chew Sien Chee & Co. However, during his father's funeral when Chew Sien Chee and Koh
Seong Hai attended, they had never mentioned about this alleged second will. Chew Sien Chee had
passed away on 3 March 2000. The plaintiff later learnt from Messrs KJ Soo & Associates, advocates and
solicitors that Messrs Chew Sien Chee & Co acting for the three defendants had applied for the grant of
probate of this second will dated 31 October 1998. The plaintiff said that this was done behind his back
and he immediately instructed his solicitors Mr KJ Soo to file a caveat to prevent the extraction of the
probate and to file this action for the deceased's first will dated 29 August 1997 to be admitted to probate.
[14]  The plaintiff asserted that the deceased could not have made the second will citing the following
suspicious surrounding circumstances of the making of the second will:[2011] 8 MLJ 32 at 41
 (a)The deceased had been showing the plaintiff and the plaintiff's family several times of the first
will when the plaintiff's sister was on her visits to the deceased after his mother's death. The
deceased would not have done so if he had made another will.
 (b)The deceased could not have gone out of the house on 31 October 1998 without the plaintiff's
knowledge because he always asked the plaintiff to drive him to the places he wanted to go or visit
but the deceased had never instructed the plaintiff to take him anywhere that day.
 (c)31 October 1998 was a Saturday. The plaintiff's sister SP4 used to visit the deceased every
weekend from Friday to Sunday. The deceased could not have gone out when SP4 was with them
on Saturday.
 (d)The deceased never liked Chung Keng Leng and the first defendant and there is no way he
could have left a portion of his estate to them or their children.
 (e)Koh Seong Hai is the plaintiff's cousin and Chew Sien Chee was the husband of Koh Seong
Hai's sister. Both of them attended the deceased's funeral but had never mentioned that they were
the witnesses to the second will.
 (f)The second will does not contain the IC number of the deceased and the executors. The
deceased could not read or write in English but the full names including the Christian names of the
grandchildren are stated in the second will whereas in relation to the first will, the deceased knew
the names of the beneficiaries as he had personally instructed the lawyer to prepare it. In the
second will, the grandchildren have not been listed according to the family order. There is also no
reason why the deceased would give so little to the plaintiff's children as compared to the children
of Ch'ng Kheng Cheang, Chung Keng Leng and the first defendant. The deceased did not have
good opinion on the first defendant who lived in Canada and could not have entrusted funds to the
9
 first defendant for a foundation. Referring to para 7 in the second will which states that should any
descendants take a second wife while the first is alive, they, their wives and children would not
benefit in anyway under the second will and would be disqualified as future trustees of the
foundation, the plaintiff contended that this does not make sense because on 9 November 1998, the
deceased had made the plaintiff's second wife a director of Chung Beng Eng Realty Sdn Bhd. If
the deceased had made the second will in October 1998, he would not have done so.
 (g)The name Chew Sien Chee was handwritten and not typed while Chew Sien See as lawyer
would have normally signed as the first witness followed by the second witness but it was the
reverse. The deceased could not have obtained the services of Chew Sien Chee to prepare his will
as he was not satisfied with the service of Chew Sien Chee in a case he appointed Chew Sien Chee
to act.
[2011] 8 MLJ 32 at 42
 (h)The signature of the deceased was signed in blue ballpoint which is quite abnormal for an
important document prepared by a lawyer and signed in his presence.
 (i)The deceased also did not remove the plaintiff who has a second wife as a director
of Chung Beng Eng Realty Sdn Bhd until his death. The plaintiff's second wife and the plaintiff
are still the directors of that company.
 (j)The plaintiff suspects that the second will had been prepared in advance by the first defendant
and Chung Keng Leng and that they have caused the deceased's signature to be forged.
[15]  On the relationship between the deceased and the children, the plaintiff said it was good except
for Chung Keng Leng and the first defendant. The deceased disliked Chung Keng Leng because the latter
had taken away the deceased's whole business in Hong Kee Plastic Industry Sdn Bhd. In support of this,
the plaintiff referred to several letters written in Chinese by the deceased with translation annexed as
shown in bundle D pp 19–31. As regards the first defendant, the deceased felt upset and disappointed with
him because the first defendant had, while the deceased and his wife (the plaintiff's mother) who was ill at
that time were in Canada with the first defendant, asked the deceased to send their mother to an old folks'
home or to 'put her to rest' so that the deceased could spend the rest of his life going around places which
he liked. Since then the deceased had completely cut off the first defendant. Before their mother's death,
upon persuasion of the sister PW4 and the plaintiff's family, only then the deceased allowed the first
defendant to visit them. After the mother's death, the first defendant had invited the deceased to live with
him in Canada but the deceased knew and allegedly told the plaintiff that the first defendant's motive in
inviting him to live in Canada was to grab all his properties after his death. The plaintiff added that his
parents initially stayed with Chung Keng Leng but when the deceased learnt of the true colour
of Chung Keng Leng, the deceased came over to Bukit Mertajam and lived with the plaintiff and his
family. The plaintiff said he took good care of his parents who had suffered from stroke and they were
close to him. The deceased knew that he could trust the plaintiff to take care of the plaintiff's mother and
that was why when he opened the fixed deposit account, it was in joint name with the plaintiff with a
survivorship clause intending to leave the fixed deposit to the plaintiff as a gift.
[16]  The plaintiff therefore sought a declaration that the first will dated 29 August 1997 is the last will
and testament of the deceased and that the Petition for Probate No 32–32 of 2000 in respect of the second
will be struck out or substituted with the first will with the plaintiff and Chung Keng Chiew as executors.
[2011] 8 MLJ 32 at 43

10
[17]  To prove the validity of the first will, the plaintiff had called Miss Caroline Heah Gaik Hong (PW3),
the lawyer. She confirmed that she prepared the first will based on instruction given to her personally by
the deceased in Bukit Mertajam. The deceased knew her mother, Madam Pow Khoon Sim for many years
and had confidence in her. Madam Pow had informed the deceased that PW3 is a lawyer and could
prepare his will. On the first occasion when PW3 came from Johor, she took instruction from the
deceased. About two weeks later, she brought the will for the deceased to sign. On both occasions, the
deceased was brought by his son, the plaintiff. The contents of the will was explained in Hokkien by PW3
as the deceased did not understand English. The deceased understood the contents of his will before he
signed it. It was on 29 August 1997 and at that material time, only the deceased, PW3 and her mother,
Madam Pow were present. Two copies of the will were prepared, PW3 and Madam Pow witnessed the
deceased signing the two copies of the will and then they signed as witnesses. The original of the signed
will kept in a brown envelope with the typewritten 'The Last Will & Testament of Chung Beng Eng' was
given to the deceased while PW3 kept the duplicate. On 9 September 1999, PW3 came to a coffee shop in
Bukit Mertajam at the request of her mother who had been informed of the death of the deceased by the
plaintiff. At the coffee shop, PW3 met the plaintiff and the first defendant. The plaintiff gave PW3 a
brown envelope containing signatures. The first defendant declared that he represented the other brothers
apart from the plaintiff. SP3 took out the original will from inside the brown envelope and compared it
with the duplicate copy kept by her in the presence of the plaintiff and the first defendant. PW3 then read
the full contents of the will to those who were present. She identified P2, the first will to be the will. PW3
said she asked the plaintiff and the first defendant whether they had any objection to the last will and
testament of the deceased. They agreed to the contents and had no objection. Both the plaintiff and the
first defendant then agreed that PW3 could proceed to apply for the grant of probate and the first
defendant had also declared that he represented Chung Keng Chiew who is the other executor of this first
will. A few weeks later, PW3 received a letter from Messrs Chew Sien Chee & Co stating
that Chung Keng Chiew did not appoint her to petition for the grant of probate. Prior to receiving Messrs
Chew Sien Chee's letter, SP3 had on 21 September 1999 written to ACF Finance Bhd to freeze the related
joint accounts of the deceased out of prudence and abundance of caution. However, she realised
subsequently that there was a survivorship clause in respect of the fixed deposit joint account of the
deceased. Referring to the letter from Messrs Chew Sien Chee & Co to her reneging her appointment to
act for Chung Keng Chiew, dated 18 December 1999 ('D25'), PW3 stated that there was no mention of the
second will nor was she informed not to proceed with the petition for probate since the second will had
existed. Messrs Chew Sien Chee & Co also did not state that they were acting for the executors of the
second will but that they were acting for Chung Keng Chiew. Chung Keng Chiew had written a complaint
to the Bar Council against SP3 for acting without his[2011] 8 MLJ 32 at 44instruction for which PW3
had duly replied vide her letters dated 5 June 2000 and 16 August 2000 (bundle C pp 74–79 and 80–81)
respectively. The complaint was subsequently dismissed.
[18]  PW4 Chong Yin Cheng is the youngest sister of the plaintiff. Basically she testified that her
relationship with the deceased was very good and close as she was the only daughter in the family. The
plaintiff and his family had also good relationship with the deceased. Between 1996 until the deceased's
death on 28 August 1999, the plaintiff and his family took good care of their parents who suffered from
stroke. The parents' funeral were also held in the plaintiff's house. However, PW4 stated that the
relationship between the deceased and Chung Keng Leng was very bad as was clearly shown vide the
letters written by the deceased as exhibited in bundle D pp 19–31. The deceased had also confided in
PW4 many things which he had stated in his same letters.
[19]  As to the relationship between the deceased and the first defendant, PW4 narrated the incident which
hurt the deceased ie the deceased had once accompanied their mother to Canada for further treatment of
her stroke, the first defendant was then working and living in Canada; when the deceased was in Canada,

11
all of a sudden he called PW4 to go to Canada to bring him and her mother back to Malaysia. PW4 then
went to Canada and made arrangements for the parents to fly back to Malaysia. The deceased told PW4
that the first defendant had told the deceased to send their mother to an old folks home or to 'put her to
rest'. The deceased was very upset, sad and furious with such a statement from his own son whom he had
educated to a very high level of PhD.
[20]  As to the other two brothers Ch'ng Kheng Cheang and Chung Keng Chiew, their relationship with
the deceased was good. After the death of their mother, the deceased was very lonely and sad; he had had
knee-joint problem. PW4 advised him not to drive and asked the plaintiff to drive the deceased wherever
he wanted to go. PW4 who was working in Kuala Lumpur with her husband in their own engineering
consultancy firm, visited the deceased every weekends from Friday nights to Sunday evenings as she was
close to the deceased. At that time, the deceased was staying with the plaintiff and his family. As to
whether the deceased had left any will, PW4 said that after her mother's death, the deceased had shown
his will to the plaintiff, the plaintiff's family and to her several times when PW4 was on her visits to him.
[21]  PW4 contended that her parents had given her education up to bachelor of engineering (electrical)
degree. Being the only daughter, her parents confided in her in many things. In order to visit the deceased
on weekends, PW4 had to turn down some engineering projects. During weekdays, she also made a lot of
telephone calls to talk to the deceased.
[2011] 8 MLJ 32 at 45
[22]  When the parents were staying with the plaintiff and his family, they were well taken care of, put on
weight and were healthier. During a New Zealand trip in February 1999 with the deceased, the deceased
had confided with PW4 certain confidential matters relating to his last will prepared by Caroline Heah.
The deceased mentioned that he set up various businesses and later with the help of Ch'ng Kheng Cheang
and the plaintiff, he was able to accomplish many things within the family. The family business thrived
and the deceased was able to educate PW4 up to bachelor of engineering degree and PW4 was able to
earn a good income, to help Chung Keng Leng to start a business with capital from family business
and Chung Keng Leng was on firm ground but had caused a lot of heartache to the deceased, to educate
the first defendant up to PhD in chemical engineering and had bought him a new bungalow in Edmonton,
Canada but had excessive heartache over the first defendant's suggestion to put their mother to nursing
home or 'put to rest' and lastly, was able to educate Chung Keng Chiew up to bachelor of engineering
(chemical) degree. The deceased expressed that he need not worry about the four younger children but
she should take care of his two elder sons. PW4 advised the deceased that he came from China in the 40s
empty handed and he was free to decide what he wanted to do with his wealth.
[23]  In relation to the second will, PW4 gave her view that the deceased would not have made that. She
gave the reasons that her name should not have appeared in any of her father's will as this had been
mutually agreed between her parents and herself and SP4 had in 1996 returned the double storey link
house in Bukit Mertajam, bought by the deceased and put in her name, to the deceased who accepted it
and immediately transferred the house into the plaintiff's name. The deceased had kept reminding SP4 in
confidence that he had appointed the plaintiff and Chung Keng Chiew as the executors in his last will
prepared by Caroline Heah. If the second will was deceased's last will, the deceased would not have
appointed the plaintiff and his second wife as the directors of Chung Beng Eng Realty Sdn Bhd.
[24]  Since the plaintiff disputed the second will and pleaded that the signature of the deceased on the
second will was forged, PW2, Siow Kwen Sia, a forensic document analyst or more commonly known as
handwriting expert was called. His evidence in chief was vide his witness statement marked P21. PW2
gave his academic qualification to be a bachelor (honours) degree in chemistry in 1973 from the
University of Malaya, a post graduate diploma in forensic science, from University of Strathclyde, United
12
Kingdom in 1984, an associate member of the Institut Kimia Malaysia and a member of the Forensic
Science Society, United Kingdom from 1984–1998. PW2 has 13 years working experience as a forensic
chemist in the Chemistry Department Malaysia. In 1991, he started his own consultancy firm dealing
solely with forensic documents analysis. He has been a document analyst verifying[2011] 8 MLJ 32 at
46signatures, handwritings etc for the past 23 years and had verified over 3,000 questioned signatures
and/or handwritings. PW2 had also testified in numerous civil cases and domestic inquiries. He has
testified in court before this case in 75 other cases and that his evidence has been accepted by court in
most cases. Details of some the cases were given in Q & A 6 and 7 in his witness statement P21. I find
PW2 to be an expert witness having satisfied the three criteria of being qualified, experienced and having
testified in court before as laid down in Wong Chop Saow  v  Public Prosecutor [1965] 1 MLJ 247. PW2
said that upon instruction from the plaintiff to determine whether the signature of the deceased in the
second will was of the same authorship as the specimen signatures provided to him, PW2 had analysed
and prepared his report as exhibited in bundle C pp 42–60. 41 specimen signatures were used as shown in
bundle C pp 49–59. On the methodology used by him to verify the signature, PW2 based it on world-
recognised authorities on signature verification and handwriting examination in particular Ordway
Hilton's book Scientific Examination of Questioned Documents 1982, Revised 1993 from USA and
Dr Wilson R Harrison's book Suspect Documents. Their Scientific Examination, 3rd Indian Reprint
2003 from UK. The method used is visual comparison of the features of writing form and movement
between the questioned signature and the specimen with the aid of Nikon SMZ1 stereoscopic microscope.
The specimens are first inter-compared to establish the range of variation for a particular feature. If the
corresponding feature in the questioned signature falls outside this range of variation, it is a difference. If
It is within the range, it is a similarity. PW2 said he photographed the questioned signature of the original
of the second will at the High Court, Penang on 28 November 2001 as exhibited in bundle C p 60 which
he marked 'Q'. He visually compared the 41 specimen signatures of the deceased of their horizontals,
diagonals, left turn and right turn. He searched for differences between the questioned signature 'Q' and
the 41 specimen signatures. He highlighted all the variations found in the specimen signatures. After
comparing the questioned signature 'Q' with the specimens, he found the features of 'Q' to be more
regular, more orderly and more open than in the specimens. SP2 subsequently narrowed the comparison
to the June 1998 to June 1999 specimens that he had marked as S35–S41 being contemporary to the
period of the questioned signature. Comparing S35–S41 and 'Q', PW2 found the questioned signature 'Q'
to be totally out of place or distinctly different from the most contemporary specimen signatures because
these specimens have (1) collapsed to three levels and (2) two or more areas of merging — characteristic
features that are not found in 'Q'. Based on the differences as stated in sections D and E2 of his report
(bundle C pp 46 and 48), PW2 concluded that the questioned signature 'Q' in the second will is of
different authorship from the specimen signatures of Chung Beng Eng, the deceased.
[25]  PW2 also gave his view why he disagrees with the finding and conclusion of the defence's expert Mr
Harcharan Singh Tara and he gave his[2011] 8 MLJ 32 at 47reasons for disagreeing. He focused on the
only two main points of similarities on which Mr Harcharan Singh Tara had concluded the questioned
signature to be of common-authorship; the first being the similarity in pictorial impression/general form
and the second is that the questioned signature is fluent. PW2's comment is that when one copies a
signature, one will obviously copy the general form and it is thus not a similarity in detail and copied
signatures in free hand can be fluent especially where the signature has a simple structure as in this case.
To support the conclusion of common authorship, PW2 added that an expert should produce a list of
numerous similarities in detail on features similar to those that he had mentioned in his report and identify
the specimens that best match those details. PW2 also disagrees with Harcharan Singh Tara's statement
that all the differences pointed out by him are due to the speed in writing. He explained that if speed is the
determining factor, then there should be minimal or no differences among the specimens in the features
which he had listed out in his report but the specimens differ widely in many features. He emphasises that
13
it is illogical to state that speed is responsible for the differences. Another aspect raised by PW2 about
Harcharan Singh Tara's report is that the latter used only nine specimen signatures of which seven are not
contemporary and six are found in an environment different from 'Q' ie in a highly cramped and crowded
environment. Harcharan Singh Tara had also used three specimens from SP2's report ie S3, S12 and S24
to conclude that these three specimens are similar to 'Q' in general form and therefore 'Q' is of the same
authorship. However, PW2 had found five to seven differences comparing 'Q' with S3, S12 and S24 for
which Mr Harcharan Singh Tara had conveniently ignored to justify his pre-conceived conclusion of
common authorship. On S12 which Harcharan Singh Tara concluded to have been executed in the same
manner as 'Q', PW2 stated that when the signatures are placed side by side, S12 and 'Q' clearly do not
match even in general form. He produced the coloured copy of the specimens in his report to substantiate
his reason for saying so. PW2 held the view that 'Q' is likely to be copied from the signature of the
deceased in the first will which he marked as S24 because of similar placement of upper body relative to
base stroke, parallelism of strokes and lowest diagonal being the longest.
The defendant's case
[26]  The defence called seven witnesses and the salient parts of their evidence are briefly as follows:
[27]  The first defendant ('DW1') gave evidence vide his witness statement marked D28. Objection had
been taken by learned counsel for the plaintiff on numerous questions and answers that were not facts
pleaded in the defence but premised on the proposed amended statement of defence which had
been[2011] 8 MLJ 32 at 48disallowed by the senior assistant registrar. After hearing arguments by both
parties and having perused the statement of defence, this court has disallowed the unpleaded material
facts in the following questions and answers in the first defendant's witness statement as it is trite that
parties are bound by their own pleadings and must confine to their pleadings (see Yew Wan Leong  v  Lai
Kok Chye [1990] 2 MLJ 152 SC : Q & A. 16,18–20, 24, 37 (from line three to the last part of the answer),
42–46,48–49,51 and 73.
[28]  The first defendant said that in 1996, his parents lived with the plaintiff and the plaintiff's family at
house No 7, Tingkat Binjai 2, Taman Sri Rambai but in June 1998, his parents moved to live at house No
67, Lebuh Binjai 2, Taman Sri Rambai which is five minutes walking distance from the plaintiff's
residence. The first defendant averred that his parents moved out because of frequent disturbances and
quarrels on life style and money matters between his father and the plaintiff and the plaintiff's mistress.
The plaintiff would frequently harassed his father for money and if his father refused, he would be
subjected to verbal and emotional abuses. On the relationship between the plaintiff and his father, the first
defendant said it was not good and that after his mother's death, his father had given an ultimatum to the
plaintiff and his mistress that he would not tolerate anymore abuse from them and openly denounce that
the plaintiff would not inherit any of his estate as the plaintiff had been given RM500,000 cash
previously. After his mother's death, the first defendant had invited his father to live with him in Canada
and his father had accepted it but it was postponed because his sister SP4 would be taking his father to
New Zealand for a three week vacation. On 24 March 1999, his father suffered a stroke in New Zealand.
On 27 August 1999, the plaintiff called to inform the first defendant that their father was critically ill. The
first defendant and his wife returned to Bukit Mertajam on 30 August 1999 and found his father had
passed away on 28 August 1999.
[29]  From his father's room, the first defendant said he noticed the filing cabinet to be empty and when
he confronted the plaintiff, the plaintiff admitted that he had cleared up the cabinet and kept the important
documents. On 7 September 1999 at about 2.30pm, all the siblings met the plaintiff and Madam Pow at
Ciku Lane, Bukit Mertajam on a sidewalk. The plaintiff removed copy of the first will from an envelope
and gave to them. Madam Pow then asked the siblings to sign at the back of the envelope of their receipt
of a copy of the first will. On 8 September 1999, on the insistence of his aunt, the first defendant, his wife
14
and the aunt went to Ciku Lane where the first defendant, his aunt, met the plaintiff, Madam Pow and
Miss Caroline Heah, PW3 in a coffee shop. PW3 took out a document, the first will from an envelope,
read and translated it in Hokkien. It was the same will, photo copy of which was given to them earlier.
The first defendant said to the plaintiff and PW3 that he had no business in relation to the first will as his
name was not[2011] 8 MLJ 32 at 49mentioned therein and told them to discuss with his younger brother,
DW3 who was the other executor in the said will. That meeting took about 20 minutes.
[30]  On 5 December 1999, the first defendant confronted the plaintiff at the plaintiff's residence for the
100th day prayer of the deceased of the existence of the second will and gave the plaintiff a compact disc
containing the scanned image of the second will. The first defendant stated that the deceased had
numerous fixed deposit joint accounts with the plaintiff totalling RM2m, three pieces of land and two
shop lots upon his death. He also mentioned about his younger brother, DW3's complaint to the Bar
Council against Caroline Heah, PW3.
[31]  Several correspondences between his solicitors and Affin Bank Bhd or the solicitor for Affin Bank
Bhd were referred to and the letter dated 23 October 2007 from Messrs Kamarudin & Partners, solicitors
for Affin Bank Bhd (bundle C p 9) had informed that the monies in the joint account were withdrawn in
full by the plaintiff as the surviving joint account holder on 31 January 2001. This was pursuant to a
survivorship clause as in the terms and conditions of the joint account (bundle C p 99). The first
defendant claimed that Messrs Chew Sien Chee & Co was his father's solicitors.
[32]  From the second will, the first defendant said he was a beneficiary with a token sum of RM99.99.
DW3 and the grandchildren would receive more from the second will. Referring to para 7 in the second
will, the first defendant said the deceased stated that if any of his descendants who took a second wife
while the first was still alive, their wives and children would not benefit under his will, inter alia. By para
8, the deceased had declared that the plaintiff would have no claim to his estate since the plaintiff had
been given more than a million ringgit worth of monies and assets.
[33]  In cross-examination, the first defendant agreed that by referring to the company search P15, the
deceased had made the plaintiff's second wife a director in his company, Chung Beng Eng Realty Sdn
Bhd on 10 November 1998, less than nine months before his death and hardly ten days after the date of
the second will. He further agreed that by the company resolution dated 4 January 1999 (P24), the
deceased had given mandate to the plaintiff and his second wife to operate the said company account with
either one of their signatures. He also agreed that vide the notice of transfer of share (P23), the one share
out of two in the said company belonging to his late mother had been transferred to the plaintiff sometime
before his mother had passed away. This company held the bulk of the deceased's assets. However, he
still disagreed that his parents had great faith and good relationship with the plaintiff.
[2011] 8 MLJ 32 at 50
[34]  On the deceased's joint accounts with the plaintiff, the first defendant said that the deceased opened
the joint accounts for convenience and plaintiff had no say on those accounts. On the survivorship clause
in bundle C p 99,first defendant said he could not answer it and he was not aware of this clause but upon
perusal of the letter from Messrs Heah & Co (bundle C pp 80–81), he agreed that he knew the plaintiff
had the right to withdraw the money and was not disputing the fact that the bank had released the money
to the plaintiff because of the survivorship clause.
[35]  As regards the relationship with Chung Keng Leng, the first defendant said he was not aware that his
parents had a bad relationship with Chung Keng Leng.
[36]  On the second will, the first defendant said he found it in October 1999. He said Chew Sien Chee
was the lawyer who witnessed it but Chew Sien Chee had not informed him about this second will nor
15
informed his brothers of this second will. He agreed that before he and his brothers told Chew Sien Chee
about the second will, Chew Sien Chee did not know the existence of the second will but said that when
they told Chew Sien Chee that there existed a second will, Chew Sien Chee confirmed. The first
defendant claimed that Chew Sien Chee said the deceased instructed him not to tell anyone but the first
defendant did not know why Chew Sien Chee did not tell anyone even after the deceased had passed
away. He agreed that the second will emerged only after all the brothers had seen the first will. Referring
to Chew Sien Chee's letter dated 18 December 1999 (bundle C pp 65–66) to Messrs Heah & Co as to why
a copy of the second will, if it really existed, was not sent to Messrs Heah & Co to put an end to the estate
matter, the first defendant said he did not know nor did he know why Chew Sien Chee had made no
reference to the second will when he wrote the said letter. The first defendant was referred and asked to
compare the language used in the first will and the second will. It was then suggested and put that paras 1,
2, 3, 9 and 10 in the second will had been copied from paras 1, 2, 3, 11 and 12 in the first will as they
were similar in language and substance. The first defendant answered he did not know. When it was
further put to him that the signature on the second will of the testator was also copied from the signature
of the deceased in the first will, the first defendant also answered that he did not know. On being shown
the second will, the first defendant agreed that there is no identify card numbers of the testator, the
executors and there is no identify card or identification of the beneficiaries. He had no idea whether the
deceased would be able to provide all details of the grandchildren with their Christian names and full
names though the deceased knew how to pronounce some of these names. He agreed that from the first
will, he and his children did not get any benefit from the legacy but would benefit from the second will so
is DW5 Chung Keng Leng and his children. He denied that the second will was forged. On the second
attesting[2011] 8 MLJ 32 at 51witness in the second will named Koh Seong Hai, the first defendant said
in Q & A 49 in his witness statement where he said that Koh Seong Hai was dead, was a typing error —
when the first defendant and his brothers contacted Chew Sien Chee to confirm the second will, they had
also tried very hard to look for Koh Seong Hai since October 1999 but could not find him. They managed
to locate him recently after Koh Seong Hai who was in Thailand had just moved back to Malaysia. On
being referred an affidavit of Koh Seong Hai sworn on 11 September 2000 at Bukit Mertajam, the first
defendant said he could not confirm and deny he was lying when he said they could not trace Koh Seong
Hai. He agreed that this affidavit was filed after Chew Sien Chee had passed away but did not know why
it was not filed when Chew Sien Chee was alive. Chew Sien Chee was the brother-in-law of Koh Seong
Hai who is the cousin of the first defendant and the plaintiff. The first defendant said he had asked Chew
Sien Chee to locate Koh Seong Hai before his death but they managed to trace Koh Seong Hai only after
Chew Sien Chee had passed away. On the relationship of his sister PW4 with his father, the deceased,
DW1 acknowledged that PW4 had a close relationship with the deceased but added that so had everyone
including DW5 although the deceased had written letters, bundle B pp 22–24, condemning DW5. As
regards question on the suspicious circumstances surrounding the making of the second will which DW1
had failed to explain, DW1 replied that he could not answer the question and only his late father could.
He disagreed that he could not have found the second will among the photographs of his parents upon the
death of the deceased. In re-examination, he asserted he had no doubt that the second will was the last
will of the deceased and that it would be the lawyer Chew Sien Chee who prepared this will and
witnessed by Koh Seong Hai. He also said that his father's intention was stated in the second will. On the
names of the grandchildren, he said that the deceased must have figured out their names somewhere.
[37]  DW2 Koh Seong Hai said in his witness statement, D38, that he is the nephew of the deceased. In
relation to the second will, he said the deceased made this second will in which he was one of the two
witnesses who attested the signature of the deceased; the other witness was Chew Sien Chee, a lawyer of
Messrs Chew Sien Chee & Co who had since passed away. The late Chew Sien Chee was his brother-in-
law. The second will was in English but it was translated in Teochew dialect to the deceased by Chew
Sien Chee. The deceased appeared to understand and signed the will in the presence of both of them in
16
Chew Sien Chee's office/room. He confirmed the signature of the deceased in the second will at bundle B
p 16. In cross-examination, DW2 said he had not signed any sworn statement on behalf of any of the
defendants nor had he given any sworn statement to the defendants before. After the second will, he was
affirmative that there was no other sworn statement. On being shown an affidavit P31, DW2 confirmed
that he had signed this affidavit explaining that it had been too long and he could only remember when he
saw the document.[2011] 8 MLJ 32 at 52On the second will, DW2 said that he only saw it on 31 October
1998 in Chew Sien Chee's office. When he arrived there, the deceased was already there and the deceased
asked him (DW2) to be his witness and to sign his will. DW2 said he heard Chew Sien Chee reading the
contents of the second will to the deceased. He said Chew Sien Chee took out his file, opened the file,
took out the will and read to both of them. Before signing, Chew Sien Chee requested for the deceased's
IC, compared the IC probably with the name and IC number of the deceased in the will. The deceased
then signed the second will first followed by Chew Sien Chee and then by DW2. When DW2 signed the
second will, Chew Sien Chee took DW2's IC and compared the number in the will. DW2 added that the
arrangement of the signatures was that the deceased's signature was on top, Chew Sien Chee's signature
was second and his signature was at the last and the manner the signatures were signed was the same.
When the second will was challenged as DW2's signature was second and Chew Sien Chee was third
which question was explained several times to DW2, he did not answer. DW2 stated that he could not
remember in what ink or pen that he signed the second will but asserted that the deceased used a black ink
pen to sign on the will. When being put that the alleged deceased's signature in the second will was in
blue ink, DW2 maintained that the deceased signed in black ink. He could not remember whether after the
deceased had signed the will, the deceased passed his pen to Chew Sien Chee to sign but after Chew Sien
Chee had signed, he passed the pen to DW2 to sign. DW2 said two sets of the will were signed.
Immediately after signing, the deceased left. The process that deceased arrived, signed and thereafter left
was very fast; it took a few minutes to complete. After the deceased had left, DW2 left with Chew Sien
Chee and did not know what happened to the will. Chew Sien Chee passed away in 2000; he was shot
dead. DW2 said further that the deceased had told him not to tell anyone about the will. Referring to
DW2's affidavit P31 where he had affirmed that the deceased took out documents from the envelopes and
requested Chew Sien Chee to translate into Teochew; it was put that what DW2 had said in the affidavit
was totally inconsistent with his evidence in court for which DW2 disagreed. He further disagreed that
what he said in the affidavit that he saw the deceased at about 10.30am entering Chew Sien Chee's office
with two envelopes in his hand was totally inconsistent with his version given in court. In re-examination,
DW2 said the deceased signed his first signature on the second will using his own pen but for his second
signature, the deceased signed with the pen given by Chew Sien Chee. He however changed to say he
could not remember what colour of ink was the deceased's pen but for the rest of the signatures, they were
in black ink. He reaffirmed that what he had stated in his affidavit is the truth and what he had testified in
court is also the truth. When recalled some two months after his initial evidence to identify the original
second will, DW2 said in cross-examination the signature in blue ink was signed by the deceased in his
own pen but he did not mention that the deceased's pen was blue in ink. He added all the remaining five
signatures[2011] 8 MLJ 32 at 53signed by the three of them were signed with another same pen. He
signed and wrote with the same pen which Chew Sien Chee used to sign on the same second will.
[38]  DW3, Chung Keng Chiew is the youngest son of the deceased and an executor of the first will. He
said he was not aware of the first will until being shown a copy at the sidewalk of Ciku Lane, Bukit
Mertajam by one Ms Pow on 7 September 1999. After the funeral ceremony of his late mother who
passed away on 17 September 1998, DW3 said that the deceased had in the presence of all his siblings
except Chung Keng Leng, given the plaintiff and his mistress an ultimatum that the deceased would not
tolerate any more abuses from them, openly denounced the plaintiff and said that the plaintiff would not
inherit any of his estate and had no right to claim as plaintiff had been given RM500,000 in cash
previously. He said he did not instruct lawyer Chew Sien Chee to challenge the first will upon the
17
discovery of the second will which is the last will and testament. The day before he was shown the first
will by Ms Pow, DW3 said his sister-in-law, the second defendant had asked the plaintiff to disclose any
document in his possession pertaining to the distribution of the deceased estate since all the siblings were
present then. The plaintiff was evasive and only in the evening that the plaintiff told the first defendant
that all siblings were to meet at his lawyer's office the next day but instead they met at Ciku Lane. As to
the plaintiff's relationship with the deceased, DW3 said they were no good as there were frequent quarrels
and disturbances relating to monies. In cross-examination, DW3 agreed that from Messrs Chew Sien
Chee's letter, bundle C p 2, in the second para that he and his three other brothers (plaintiff excluded) had
not instructed Chew Sien Chee to challenge the validity of the first will and to caveat the grant of probate
or letters of administration. Referring to the same letter and the question asked that 'if the second will had
existed, Chew Sien Chee would have knowledge of it', DW3 said that Chew Sien Chee had not shown
them the second will and he would not know whether Chew Sien Chee would have knowledge of the
second will. He added that Chew Sien Chee did not state in his same letter that there was a second will
which would supersede the first will. He would not know whether Chew Sien Chee was aware of the
second will. DW3 came to know of the second will in October 1999 but did not discuss or ask Chew Sien
Chee to write to the lawyer Caroline Heah or to anyone to say that the second will superseded the first
will. His reason was that his joint account with the deceased was frozen which he had to sort out and that
he was staying in Vietnam until the Chinese New Year in 2000 when he instructed Chew Sien Chee to
take action on his frozen account with his own money. He had not and did not want to discuss with Chew
Sien Chee of the second will. As to why was it not part of the defence's pleadings that the second will was
found in October 1999, DW3 said he could not comment as he was not the defendants. DW3 expressed
dissatisfaction over Miss Caroline Heah for allegedly representing him when he had not so appointed her.
For that he had instructed Chew Sien Chee to write to Miss[2011] 8 MLJ 32 at 54Caroline Heah and
threatened to pursue for any loss or damage to the estate. He also complained against Miss Caroline Heah
to the Advocates & Solicitors Disciplinary Board. DW3 agreed that the second will would affect all
siblings but he made no mention when his lawyer wrote letters vide bundle C p 65 because there were
unpaid bills of work done by Chew Sien Chee for the deceased. During the life time of Chew Sien Chee,
there was no mention at all of the second will between DW3 and Chew Sien Chee. On the police report
lodged by the plaintiff, DW3 said he came to know Koh Seong Hai (DW2) had been interviewed by the
police; it was either Chung Keng Leng or Ch'ng Keng Cheang or both of them who had mentioned that to
him. On the question that DW3 had no reason to dispute the first will, DW3 answered, 'you got the point.
I had not disputed this first will at that time. It was until I found out that my money in the joint account
was frozen'. On the relationship between the deceased and the plaintiff, DW3 said it was normal so was
his relationship with the deceased and hence it was not a surprise for the deceased to name the plaintiff
and him as executors and beneficiaries in the first will. He added that the relationship between his father
and Chung Keng Leng was also normal. In re-examination DW3 stated that the discussion of the second
will was between October 1999 and Chinese New Year in 2000 among the siblings and the plaintiff was
also present. As to his joint account, he could not withdraw his money when that account was frozen.
Regarding Chew Sien Chee's letter at last paragraph of p 66 bundle C, DW3 explained that by 'the estate
of my late father', he was referring to the second will but he had never discussed the second will with
Chew Sien Chee. On DW2 being interviewed by the police, DW3 said he had personal knowledge as he
had discussed with his brothers Chung Keng Leng ('DW5') and Chung Keng Cheang. On the first will, he
said Caroline Heah could not have done the first will for the deceased. By freezing his joint account with
the deceased, that had nullified the first will.
[39]  The fourth defence witness is the second defendant Law Cheng Hiang ('DW4'). She is the sister-in-
law of the plaintiff and the first defendant having married their eldest brother, Ch'ng Kheng Cheang and a
co-executrix and trustee of the second will. Before the deceased's death, DW4 said she used to visit him at
house at No 67, Lebuh Binjai 2, Taman Sri Rambai, 14000 Bukit Mertajam where the deceased lived. She
18
said the deceased did not at anytime tell her that he had made the second will. According to her, the
deceased and the plaintiff did not have a good relationship as the plaintiff was constantly harassing the
deceased for money. After the funeral ceremony of her mother-in-law in September 1998, DW4 said that
the deceased told the plaintiff in the presence of all his siblings that he/the deceased would not tolerate
anymore abuse from the plaintiff and/or his mistress and the deceased had openly denounced the plaintiff
and told the plaintiff that he would not inherit anything from his estate as the plaintiff had already been
given RM500,000 in cash previously. This evidence is contained in her witness statement, D42. In cross-
examination, DW4 changed to say the plaintiff's[2011] 8 MLJ 32 at 55relationship with the deceased was
just normal. The plaintiff stayed with the deceased in the deceased's house and the deceased died in his
own house. The deceased initially lived with the plaintiff at house No 7, but two or three years before his
death, he bought a new house No 67 and both the deceased and his wife moved to live in the new house.
DW4 did not know whether the plaintiff and his second wife did live in house No 67. The deceased's
funeral was held at house No 7. As to the incident in September 1998 during the 100 days prayer for her
late mother-in-law, DW4 said she saw the deceased scolding the plaintiff but changed to say that the
deceased told her that he scolded the plaintiff and that she did not witness the incident. And when asked
what she heard from the deceased, DW4 said the deceased said the plaintiff lived with him (the deceased)
and had always asked for money from him (the deceased). On being challenged further, DW4 said she did
hear the deceased just told the plaintiff that he (the deceased) would only give the plaintiff RM500,000
but she did not hear the deceased scolding the plaintiff for harassing the deceased for money. DW4 then
explained further that she did not know whether she only heard from the deceased that the deceased gave
RM500,000 to the plaintiff but she did not see the deceased telling the plaintiff that he only gave the
plaintiff RM500,000. As to the relationship between the deceased and the plaintiff's second wife, DW4
did not know. She did not know whether the deceased told the plaintiff in front of her that he could not
tolerate the abuses of the plaintiff and his mistress. DW4 did not know about the second will and she did
know whether anyone had discussed with her about the second will. She said it was the first defendant
who told her that she was the co-executrix and trustee of the second will in October 1999. Before coming
to court, she forgot whether she had signed any documents about the second will. When being referred a
joint affidavit of all three defendants ('D30'), DW4 identified her signature in Chinese but could not
remember whether she signed this affidavit alone or with others. She could not remember whether the
first defendant was present when she signed it. She confirmed that she had never seen the second will. On
the relationship between the deceased and Chung Keng Leng (DW5), DW4 said their relationship was not
so good while her relation with the deceased was normal. DW4 agreed that it was not possible that her
father-in-law (the deceased) would have appointed her as an executrix. In re-examination, DW4 reverted
to say that she remembered the plaintiff had been scolded by the deceased due to money matters. She
added, what she knew was that the deceased had given the plaintiff RM500,000 and asked the plaintiff
not to interfere with the deceased's money. She said she could not remember whether the deceased had
denounced the plaintiff. At to the contents of the second will, DW4 said she did not know but she agreed
to be the executrix.
[40]  DW5, Chung Keng Leng is another sibling of the first defendant and the plaintiff. Vide his witness
statement, D38, DW5 said that his parents lived with him and his family from 1992–1996. He did not say
whether his parents[2011] 8 MLJ 32 at 56then moved to live with the plaintiff but said that his parents
moved out from living with the plaintiff and his family because his late father could not tolerate the
plaintiff's verbal abuse and frequent harassment for monies. He stated that his father suffered a stroke in
early 1999 on his trip to New Zealand and his condition deteriorated in the last few months prior to his
death on 28 August 1999. In relation to the first will, DW5 said the plaintiff did not inform the siblings
after the deceased's death. On 6 September 1999 in the presence of all siblings and their aunt after the
death anniversary prayer of their late mother at Bukit Mertajam, the second defendant (DW4) asked the
plaintiff to disclose any document of the deceased pertaining to his estate. The plaintiff was however
19
evasive and did not reveal the first will. When all other siblings were discussing whether the deceased had
given his last will to anyone of them to keep, the plaintiff then reluctantly admitted that he had all the
deceased's documents including the first will. Subsequently the first defendant (DW1) informed DW5 that
the plaintiff had asked that they were to meet at his lawyer's office the next day. The rest of his evidence
as to the meeting on 7 September 1999 is almost the same as that of DW1 in relation to the first will. The
first will, according to DW5 was not read by Miss Caroline Heah to him nor was he contacted for the
reading of the first will. In October 1999, DW1 called to inform him that he (DW1) had found another
will dated 31 October 1998 (the second will). On 5 December 1999 at the 100 days prayer of the deceased
at the plaintiff's house, DW1 and DW3 confronted the plaintiff of lying and concealing all the documents
of the deceased including the second will for which the plaintiff did not deny. DW1 at the same time gave
a compact disc of the second will to the plaintiff. The estate of the deceased was RM2m, three pieces of
land and two shoplots. His further evidence on the freezing of the joint account of the plaintiff with the
deceased and the plaintiff had withdrawn those money in Asia Commercial Finance and the involvement
of Miss Caroline Heah is substantially the same as the evidence given by DW1. DW5 said that before
their mother had passed away, the deceased had given the plaintiff RM500,000 and after their mother had
passed away, the deceased openly denounced the plaintiff from any involvement in his estate in the
presence of all the siblings including the plaintiff and his second wife. DW5 said Chew Sien Chee was the
deceased's lawyer. The deceased had never mentioned to all his brothers except the plaintiff that he had
appointed Caroline Heah as his lawyer nor did he mention that he had made the first will through
Caroline Heah. DW5 said he was a beneficiary in the second will with a token sum RM99.99 but his four
children will inherit RM5,000 each. He added that the deceased was familiar with the names of his
children and could pronounce their names correctly. The plaintiff's children born of his first wife will also
inherit from the second will but not his children born of the second wife. On his relationship and the first
defendant's relationship with the deceased, DW5 said it was good. As regards his parent's trip back to
Malaysia from Canada, DW5 said he paid for their travelling expenses. When being challenged with
DW4's evidence where she had stated she had no knowledge as[2011] 8 MLJ 32 at 57to what happened
on 6 September 1999; she had no knowledge whether the plaintiff gave all sorts of excuses and was
evasive, whether the plaintiff admitted that he was in possession of their late father's documents and
whether all the male siblings were told to meet Miss Pow at Ciku Lane, DW5 disagreed what he had said
in his witness statement was not true. On appointing lawyer Chew Sien Chee, DW5 said that Chew Sien
Chee was appointed to rectify the wrong representation of his youngest brother DW3 by Miss Caroline
Heah but not to challenge the first will. Pertaining to the letter from Chew Sien Chee (bundle C p 1) to
Caroline Heah, DW5 stated with hesitation that Chew Sien Chee wrote the letter on his own without
DW5's instruction although the letter expressed that Chew Sien Chee was acting for DW5 and the other
brothers. As regards the bills from Chew Sien Chee for services rendered to the deceased, DW5 agreed
that all those bills were dated after the second will but Chew Sien Chee had not talked and had never told
DW5 about the second will. He maintained that his relationship with the deceased was good in spite of
letters written by the deceased against him (bundle D pp 22, 24 & 28). He alleged that the relationship
between the plaintiff and the deceased was bad as the plaintiff had openly harassed the deceased. On
being challenged as to why the deceased had made the plaintiff a joint deposit holder and share holder in
his company, DW5 said it was for convenience but he could not explain 'convenience'. On being
questioned that the deceased had left all the money in the joint account to the plaintiff but had withdrawn
all money in the joint account with DW5, he said it was up to his father, the deceased. He agreed that if
the intention of the deceased was to give the money to the plaintiff, he had no knowledge of it. He also
had had no knowledge that even at the deceased's death, the plaintiff and his second wife were still the
directors of the deceased's company. In relation to the second will, DW5 denied that the deceased who
could not read and understand English, could know the English names of all the beneficiaries and spell
them correctly. He asserted the deceased was a Teochew and could not understand Hokkien. He disagreed

20
that the second will was not the deceased's will. Pertaining to the first will, he agreed that he had not
objected to the contents of the first will when he signed on the envelope containing the first will but said
that the envelope was blank. He said his father could not have appointed Caroline Heah to do the first
will. On DW2, Koh Seong Hai, who is his cousin, DW5 said DW2 could be easily located by Chew Sien
Chee. In re-examination, he explained 'convenience' for the joint account was that the deceased travelled
a lot and thus needed the statements of account to be addressed to the joint account holder so that the
deceased could be contacted by phone calls. As to the appointment of Chew Sien Chee, DW5 explained
that Chew Sien Chee had approached them for payment of services rendered to the deceased and they
naturally appointed him to continue acting but DW5 did not give instruction to Chew Sien Chee to contest
the first will when Chew Sien Chee wrote the letter regarding the freezing of the account. DW5 said he
represented all his brothers except the plaintiff and his instruction[2011] 8 MLJ 32 at 58was not to
challenge the first will. As to the letters bundle D pp 22 and 24 written by the deceased condemning him,
DW5 said it was common practice of his father to do so.
[41]  DW6 is the senior assistant registrar of the Penang High Court who was called to produce the
original second will which had been filed in Probate Case No 32–32 of 2000. This court noted that the
original second will was type-written in black; the signature at the column for Chung Beng Eng (the
deceased) was a signature signed in blue ink whereas the signature above the handwritten name 'Koh
Seong Hai' and the writings of name, identify card number and address were in black ink and the
signature below Koh Seong Hai and above the smaller name chop of 'Chew Sien Chee' was in black ink;
the small chop and the bigger chop of 'Chew Sien Chee & Co' were in black. The other handwritten date
and the name Chew Sien Chee at p 4 of the second will were in black. Miss Karen Lim, learned counsel
for the plaintiff also urged this court to note that the date and the handwritten name of Chew Sien Chee
were written in thin ink as compared with the handwritten name of Koh Seong Hai, his NRIC and address
which were in broad ink. In noting that, this court also notes the signature above the name chop of Chew
Sien Chee appears to be signed in thin ink as that of a fountain pen with sharp nib. After all parties had
examined the original and a certified true copy of the same, the certified true copy was tendered and
marked as exh D41. As requested by learned counsel for the plaintiff to record so, this court had noted
down the production of D41 does not tantamount to the plaintiff admitting that that was the last will of
the deceased.
[42]  DW7 Harcharan Singh a/l Tara Singh is the last witness for the defence and he is the defence's
expert witness. His evidence-in-chief is vide his witness statement, exh D42. He had outlined his
qualifications and experience as well as having given evidence in a court of law and that his evidence had
been accepted by the court. This court also accepts him as an expert witness pursuant to Wong Chop
Saow  v  Public Prosecutor. Although DW7 may not have the academic training in forensic science
particularly in handwriting examination, his practical experience as supervisor of handwriting experts in
the chemistry department can be regarded to qualify him as an expert for the purpose of determining the
authorship or the genuineness of signature or otherwise; see Public Prosecutor v Muhamed bin
Sulaiman [1982] 2 MLJ 320 FC. DW7's role in this case is that he examined the questioned signature of
the deceased as contained in the original second will in Penang High Court on 10 December 2004 and had
taken close-up photographs of the said signature. For comparison, he had used nine original standard
signatures contained in two sets of original documents marked as 'SS1' and 'SS2' given to him by the
defendants' solicitors. 'SS1' was dated 18 November 1993 while 'SS2' was a contract dated 3 April 1996.
He said that eight to ten specimen signatures[2011] 8 MLJ 32 at 59which were contemporary and
executed on documents of equal importance as the questioned signature would suffice for comparison and
an examiner should not go on a 'fishing trip' for many standard signatures to look for something 'to fit or
not fit his conclusion'. He found the specimen given to him which were signed from 1993–1998 and the
disputed signature which was signed in 1998, were roughly contemporary in time. He also found the

21
specimen signatures were mostly 'fairly' consistent in pictorial impression or spatial configuration but had
some natural variation. Having compared them, DW7 concluded his opinion that the questioned signature
marked as 'Q' had a common authorship to those specimen signatures and is the true and genuine
signature of the deceased, Chung Beng Eng. His conclusion was based on similar pictorial impressions
and spatial configurations of the questioned signature with the specimen signatures taking into account
that there were some usual natural variations in the specimens. He found the questioned signature to be
written in one smooth stroke/ pen movement without any pen lift and did not have any tremor or
hesitation in its formation of the sub-strokes; it was executed in one smooth line trace, a fluent structure.
In determining common authorship, it cannot base solely on differences in physical measurements of the
strokes or sub-strokes which depended on the speed of writing; if written fast, there will be a tendency to
drop some sub-strokes. On the variation in the letter design, DW7 said he found a fairly wide variation in
the 'structure' and 'construction' of the specimen signatures but he found regularity in the rhythm of the
questioned signature and the specimen signatures. DW7 also stated that specimen signature marked as
'S12' being a signature on an important document ie a passport, had been executed in almost the same
manner as the questioned signature on a will. In cross-examination, DW7 said the nine specimen
signatures provided to him were from the period 1993–1996 whereas the questioned signature on the
second will was in 1998. He agreed that specimen signatures must be as contemporaneous as possibly but
stated that the range of five years is contemporaneous as long as there is no change in pictorial
impression. He disagreed that specimens in 1998 would be as contemporaneous as possible but if sample
signatures in 1998 were available, he would use them for comparison. In this case, DW7 did not ask for
the contemporaneous specimen although it is standard instruction that he would always ask for in every
case. He said he was not given or that they were not available. He agreed that the specimen signatures
S35–S41 used by the plaintiff's expert, SP2 were the most contemporaneous specimen in respect of the
questioned signature. DW7 basically based his finding or conclusion on pictorial impression, the
allograph, the dynamic or the speed in writing of the signature. Although he agreed that the specimen
signatures as contained in the sales and purchase agreement, company resolution, passport etc used by
SP2 were good for comparison, he contended that SP2's interpretation was wrong like a school boy. He
alleged that SP2 looked for differences without looking at the overall picture. To constitute differences,
there are three criteria ie they must be consistent, significant and fundamental. He agreed that these
three[2011] 8 MLJ 32 at 60main features that consistently appeared in the specimen signatures marked
S35 to S41 are the main body collapsed against the base, with three levels and with two or more parts
merging as in SP2's report at para E2 but disagreed that they were significant and fundamental because of
dynamic in writing at different time. He endorsed the differences between specimen S12 and the
questioned signature marked 'Q' but explained that S12 was written in confined space but not 'Q'. He
stressed that comparison is two ways process ie not only looking for differences but also similarities. He
disagreed that if the specimen is not of similar environment, it is not of good comparison as in his
specimen 'S1' but when being challenged with his own article reported in [2006] 5 MLJ xlviii, he agreed
that he had so stated that to be a good comparable, it had to be of a similar environment and condition but
qualified to say that if the samples were with natural variations, they could still be used. DW7 said he did
not disagree that differences are important but they must be taken along with similarities and added that
his logical explanation for the differences is the behavioural nature and dynamic or speed nature of the
signatures.
EVALUATION FINDINGSThe first issue: Whether the deceased had made the first will dated 29 August
1997
[43]  Evidence of Miss Caroline Heah (PW3) is unequivocal that through her mother, she came to Bukit
Mertajam and met the deceased personally to take instruction to prepare the deceased's will. After
preparing this will, she made her second visit to Bukit Mertajam about two weeks later with the will

22
which she personally explained to the deceased of its contents and the deceased having understood then
signed in her presence and the presence of her mother Madam Pow Khoon Sim. It was on 29 August
1997. PW3 and her mother signed as witnesses to this first will. This first will was prepared in two
copies. Having signed them, the original was kept in a brown envelope with typewritten words 'The Last
Will & Testament of Chung Beng Eng' and was given to the deceased while PW3 kept the duplicate of it.
She identified her signature as well as the signatures of the deceased and her mother as the second witness
in this first will which was produced as exh P2. Before she read the contents of the will to plaintiff (PW1)
and the first defendant (DW1), the first defendant declared to her that he represented the other brothers
who were not present. PW3 had compared the original will in the brown envelope which then contained
the signatures of all the siblings of the plaintiff, handed over to her by the plaintiff and found the original
will to be the same with the duplicate that she kept. This fact was endorsed by DW1 who affirmed in
evidence that PW3 did that. There was no objection nor dispute by DW1 as to this will not being prepared
or witnessed by PW3 and Madam Pow nor as to the deceased's signature thereon.
DW5, Chung Keng Leng, the other sibling of the plaintiff and the first[2011] 8 MLJ 32 at 61defendant,
had agreed in his evidence that he had not objected to the contents of the first will when he signed on the
envelope containing this will. The only slim evidence led in the defence that PW3 could not be the person
who prepared the first will came from Chung Keng Chiew (DW3) who had apparently expressed great
dissatisfaction against PW3 for freezing his joint account with the deceased in the bank whereby he could
not withdraw the money which was his though placed in joint name with the deceased for a long duration
of time. This had resulted in his complaint against PW3 to the Bar Council. DW5 did say that the
deceased could not have appointed PW3 but gave no reason. Apart from the defence's assertions in court,
there is not an iota of evidence to show or raise a doubt that PW3 could not have prepared and witnessed
the deceased's signature on the first will. I find that DW3's bare assertion in this respect to have arisen out
of his grudge against PW3 for freezing his joint account with the deceased.
[44]  From the evidence as a whole, I find PW3 to be a credible witness, cogent in her evidence and there
is no doubt for me to reject her evidence. On a balance of probabilities and upon a finding of fact, I hold
that the first will (P2) was prepared by PW3, duly signed by the deceased in the presence of PW3 and
Madam Pow who witnessed the deceased's signature thereon and that this first will was duly executed on
29 August 1997 as the last will and testament of the deceased; hence it was a valid will. However,
whether this first will is still effective will depend on the determination of the validity of the second will
in the following issue.
Second issue: Having regard to all the circumstances of the case, whether the deceased could have made
the second will on 31 October 1998 and whether the signature of the deceased in the second will was his
or whether this second will was a probable forgery
[45]  The crux of the defence's case is indeed on the existence of this second will which the plaintiff
challenged relentlessly to be not the deceased's will and that it was a forgery. This second will was dated
31 October 1998 and if it is proved to be valid and effective, it being purportedly made on a date later
than the first will, would naturally supersede the first will as the last will and testament of the deceased to
be admitted to probate. Otherwise, the first will shall be the last will and testament.
DISCOVERY OF THE SECOND WILL
[46]  In the defendant's pleadings vide their statement of defence in bundle A p 28 para 17, it was pleaded
that the first defendant had found the second will among some photographs. No other facts were pleaded
as to when and where he had found it. From the first defendant's witness statement (D28) and his
oral[2011] 8 MLJ 32 at 62evidence in court, no evidence was led as to when and where he had
discovered the second will. He was even silent on his alleged discovery of it among some photographs. At
one point, the first defendant was attempting to say he found the second will in Canada but this fact was
23
not so pleaded. If it is a fact that the second will was truly found in Canada, such pertinent fact ought to
have been pleaded. Unfortunately, it was not. It is trite that any unpleaded fact ought to be rejected as trial
should be confined to the pleadings; see Janagi v Ong Boon Kiat [1971] 2 MLJ 196 as cited by the
Supreme Court in Yew Wan Leong v Lai Kok Chye. Chew Sien Chee, the lawyer who allegedly prepared
and attested the second will as a witness was not shown to have raised this second will even after the
death of the deceased which Chew Sien Chee was aware having attended the deceased's funeral. I find no
evidence how this second will came into being but that it only surfaced at the 100 days prayer for the
deceased after his demise.
PREPARATION OF THE SECOND WILL (EXH D41)
[47]  It is the defendant's case throughout this trial that this second will, D41, was prepared by a lawyer
Mr Chew Sien Chee who had since passed away in March 2000. On the preparation of this second will,
learned counsel for the plaintiff had submitted that there were suspicious circumstances from the contents
of this will itself which indicate that this will could not have come from the hands of a lawyer. On
suspicious circumstances, learned plaintiff's counsel cited a passage from Theobald on Wills  by JB
Clark, (14th Ed) at p 35 where the learned author said:
(c) Suspicious circumstances. If a will was prepared and executed under circumstances which raised a
well-grounded suspicion that the will (so some provision in it, such as the residuary gift) did not express
the mind of the testator, the will (or that provision) is not admissible to probate unless that suspicion is
removed by affirmative proof of the testator's knowledge and approval. A classic instance of suspicious
circumstances is where the will was prepared by a person who takes a substantial benefit under it.
[48]  It was further submitted that the legal burden lies on the party propounding the will to prove that the
testator knew and approved of the contents in the will at the material time. Learned counsel for the
plaintiff referred to the same book at p 34 which states:
Burden of proof. The legal (or persuasive) burden of proof always lies upon the person propounding a
will to prove that the testator knew and approved of its contents at the relevant time. He must 'satisfy the
conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator'.
[49]  She also cited the case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng &
Ors [2005] 2 MLJ 1 which held the same. I must agree.
[2011] 8 MLJ 32 at 63
[50]  In general, it does not derogate from the burden provided under the Evidence Act 1950 that he who
asserts the facts must prove that fact: s 101 and the evidential burden under ss 102 and 103 of the same
Act. Hence the burden is on the defendants propounding the second will to prove it to be the valid last
will and testament of the deceased.
[51]  Reverting to the second will, D41, the suspicious circumstances raised in relation to its preparation
is that this second will did not carry the identify card number of the deceased being the testator as well as
those of the executors and trustees, ie the three defendants named therein. I find this suspicion raised to be
tangible and it merits consideration. Citing the name and identify card number of the testator and
executors and/or trustees are so fundamental a prudent practice and requirement that no solicitor
preparing an important document such as a will would have missed or ignored to follow. The defendants
propounding this second will did not afford any explanation as to how Mr Chew Sien Chee could have
missed or ignored such vital details if D41 was allegedly prepared by him. A failure to include the IC
numbers of the testator, executor and trustees in a will prepared by a lawyer, to this court, is an abnormal
act and could not have been expected to come from a conscientious practising lawyer. I reckon this
24
omission as suspicious circumstances. In addition, according to Koh Seong Hai (DW2), the surviving
witness to D41, he saw Chew Sien Chee taking the deceased's identify card and comparing the IC with
the name and IC number of the deceased in this will. If that was true, it is highly unconceivable and
improbable that Chew Sien Chee would still have proceeded to attest the will when there was such a
glaring omission or error, if he had truly checked the deceased's name and IC number from the deceased's
IC, and would yet deliberately fail to amend or cause to be amended such an important document
allegedly prepared by him which would affect his integrity as a diligent lawyer. This doubt that remains
throughout the defence's case in the trial, gives rise to the probabilities that D41 might not have been
prepared by Chew Sien Chee as claimed by the defence.
[52]  On the plaintiff's submission that the deceased being illiterate in English could not have given all the
English names of the children of the first defendant and other grandchildren such as Bellgene, Winson,
Winser, Beverly Belshan, etc in the second will, that may be so but I am prepared to give the benefit of
the doubt to a grandfather who ought to be reasonably presumed to know the name of his grandchildren
and would otherwise have obtained them if he so desired to bequeath them with some of his legacy. I find
this is not a convincing ground to create suspicion in the deceased's knowledge of the name of his
grandchildren.
[53]  The date of this second will was 31 October 1998 which fell on a Saturday. The plaintiff said that he
was the one who would always be asked by[2011] 8 MLJ 32 at 64the deceased to drive him wherever he
wanted to go and the plaintiff stated that he had not driven the deceased to the office of Chew Sien Chee
on 31 October 1998. PW4, the sole daughter in the family was admittedly very close and attached to the
deceased. She had been, after the death of her mother, visiting the deceased every weekend from Friday
night to Sunday without fail. She too confirmed that the deceased had not gone to Chew Sien Chee's
office on 31 October 1998, a Saturday; otherwise she would have known of it. She further confirmed that
the deceased had been telling and/or showing her the first will and showing it to the plaintiff and the
plaintiff's family. PW4 was and is never a beneficiary to any of the first or second will. She had openly
announced to the deceased that she would not accept any bequeath from the deceased and she even
transferred the double storey house bought by the deceased and registered in her name back to the
deceased during the deceased's lifetime. PW4 and her husband operates an engineering firm and she was
contented with what she had. I find that PW4 is an independent and not an interested witness when she
gave evidence in favour of the plaintiff; see Karthiyayani & Anor v Lee Liong Sin & Anor [1975] 1 MLJ
119. I have no reason to doubt what she said. Apart from Koh Seong Hai 's evidence which I shall discuss
below, there is no evidence to rebut PW4's evidence which corroborated the plaintiff's evidence that the
deceased was not taken to Chew Sien Chee's office on a Saturday ie 31 October 1998. This is yet another
improbability which raises a doubt that the deceased could have been to Chew Sien Chee's office on 31
October 1998.
ATTESTATION OF THE SECOND WILL
[54]  The defence's key witness that they relied to prove the second will is Koh Seong Hai (DW2) who is
the cousin of the siblings and the brother-in-law of the lawyer Chew Sien Chee. In DW2's evidence in
court, he said that when he arrived in Chew Sien Chee's office on 31 October 1998, the deceased was
already there and the deceased had asked him (DW2) to sign his will. He then saw Chew Sien Chee
taking out his file, opening it, taking out the will and reading the contents to both of them. However, in
his affidavit sworn on 11 September 2000 ('P31') which he initially denied having made any sworn
statement but admitted having made P31 upon it being shown in cross-examination, he affirmed the
following facts:
 6Pada hari Sabtu, 31 hb Oktober 1998, seperti biasa, saya telah pergi untuk berjumpa dengan
Chew (Chew Sien Chee) di pejabatnya pada pukul lebih kurang 10.00 pagi.
25
  7Pada lebih kurang pukul 10.30 pagi saya nampak Chung (the deceased) masuk ke dalam pejabat
Chew dengan 2 sampul surat di dalam tangannya. Saya cuba untuk mengundur diri dari bilik Chew
pada masa itu tetapi Chung telah menyuruh saya untuk berada di situ.
 8Chung telah mengeluarkan dokumen-dokumen dari sampul surat dan menyuruh Chew untuk
membaca dan menterjemahkan isi kandungan[2011] 8 MLJ 32 at 65dokumen-dokumen tersebut
dalam bahasa Teochew. Dari apa yang dikatakan oleh Chew saya faham bahawa dokumen-
dokumen tersebut merupakan wasiat Chun
 9…
 10Chung dan Chew telah menyuruh saya untuk menjadi saksi kepada tandatangan Chung di wasiat
tersebut.
[55]  His statements of fact as sworn in P31 are contradictory to his oral evidence in court in that in P31,
he was already in Chew Sien Chee's office before the arrival of the deceased; whereas in his oral
evidence, the deceased was already in Chew Sien Chee's office before DW2 arrived. In P31, the deceased
was carrying two envelopes when he came to Chew Sien Chee's office and the deceased took out his will
from the envelope and asked Chew Sien Chee to read and translate whereas in his evidence in court, he
said the will was in Chew Sien Chee's file; Chew Sien Chee took out his file, opened it, took out the will
and read to them. Although these obvious contradictions had been pointed out to DW2, DW2 only
attempted to say it was too long. Nevertheless, he disagreed that what he said in para 7 in his affidavit
P31 was totally inconsistent with what he said in court. In other word, by disagreeing with the suggestion
put, DW2 is saying that para 7 which he affirmed that the deceased was the one who had the two
envelopes in his hands was consistent with what he said in court that Chew Sien Chee was having the will
in his file. From the above conflicting evidence, the credibility of DW2 is put at stake as he was prepared
to lie demonstratively. His evidence must therefore be treated with suspicion. DW2 stated that Chew Sien
Chee had requested for the IC of the deceased and he saw Chew Sien Chee checking the name and IC
number of the deceased on the will with those in the IC. This evidence of his cannot be true for the simple
reason that this second will (D41) does not carry the IC numbers of the deceased nor those of the two
named executors and trustees. In relation to the purported signing of the second will by the deceased,
DW2 said the deceased signed first, followed by Chew Sien Chee and then by himself. He added that the
arrangement of the signatures on the second will was the deceased's signature on top, the solicitor's
signature was second and his signature was at the last. However from D41, the second will, it was his
signature at the second position and Chew Sien Chee's signature was at the last.
[56]  On the purported signature of the deceased, DW2 when being challenged in cross-examination that
the alleged signature of the deceased in the second will was signed in blue ball point and not in black ink,
DW3 disagreed and had explicitly maintained that the deceased signed in the second will in black ink.
This is indeed in direct contradiction with the original second will produced by the senior assistant
registrar, DW6, wherein the purported signature of the deceased was signed in blue ink. In re-
examination, DW2 attempted to explain that the deceased used his own pen to sign but he and[2011] 8
MLJ 32 at 66Chew Sien Chee signed with another pen. I do not find his explanation plausible because he
did not say so during cross-examination but was very assertive that the deceased signed his signature in
black. I find DW2 was caught point blank to have lie so openly. Had the deceased actually signed in his
presence, and his fundamental role as the attesting witness was to witness the deceased's signature he
must truly witness that signature of the deceased. The fact that DW2 was unable to even say in what
colour of the ink that the deceased had allegedly sign his will only leads to the grave doubt whether DW2
had actually witnessed the deceased's alleged signature.

26
[57]  In relation to the date in the second will and Chew Sien Chee's handwritten name, DW2 said initially
that Chew Sien Chee wrote the date and his name first but said that he just 'agak-agak' that the date and
name were written first before the deceased signed. From learned counsel for the plaintiff's request to
note the difference in the handwritten writings of DW2's particulars and signature comparing with those
of Chew Sien Chee in term of the pen used, I have observed the pen impressions to sign and to write
DW2's particulars was broader and the signature and handwritten name of Chew Sien Chee to be in a
thinner ink as that of a fountain pen with sharp nib. This is clearly visible on naked eyes. This again
refuted DW2's evidence that he wrote and signed with the same pen passed to him after Chew Sien Chee
had so written and signed with that pen.
[58]  I have also observed the demeanour of DW2 when he gave evidence. More than often, he took time
to answer questions posed, evasive and at time gave no answer. Questions had also sometimes to be
explained several times before he could answer them. He does not appear to be a truthful witness.
[59]  From the whole evidence of DW2 coupled with numerous material inconsistencies and his
demeanour, I find that DW2 is not a credible and reliable witness but a witness who has an axe to grind as
he was prepared to lie and gave conflicting evidence. It is most unsafe to rely on evidence that is full of
inconsistencies and uncertainties. The defence had failed to advance any reasonable explanation nor lead
any evidence to clear all lingering doubts and all the inconsistencies which remained at the end of the
trial. Therefore, this court finds that no weight ought to be accorded to DW2's evidence and his evidence
that he had witnessed the deceased affixing his signature on the second will which this court finds grave
doubt is consequently rejected on a balance of probabilities upon positive finding of facts above. There is
no other evidence to prove that the second will was properly attested apart from DW2's evidence. On this
ground alone, the defendants cannot be said to have proved that the deceased had made or seen to have
signed the second will on 31[2011] 8 MLJ 32 at 67October 1998 ie its execution on a balance of
probabilities.
THE EXPERT EVIDENCE
[60]  Despite the above findings, this court will also consider the evidence of both the plaintiff's and the
defendant's handwriting experts who gave conflicting views or opinions. In Public
Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64, His Lordship Hashim Yeop A Sani J (as he
then was) held that the evidence of experts can never go beyond an opinion and can never therefore be of
absolute certainty and that it has always been accepted that expert evidence especially of handwriting can
never be conclusive. In Sim Ah Song & Anor v Rex [1951] MLJ 150, Brown Ag CJ has held that:
Where expert evidence is given to 'explain' the nature of a document, the expert should 'explain' its
contents by 'explaining' the technical and unintelligible terms contained in it. The responsibility for the
determination of every question upon which expert evidence is called, rested upon the court and not upon
the expert.
[61]  The role of an expert is to explain the technical part of the document, handwriting or signature as in
this case and gives his opinion upon his analysis which must be coupled with his reasons. It is purely to
assist the court which shall determine upon the questions or issues for which the expert was called. The
final determination of the question or issue is upon the court to arrive at and it is certainly not the opinion
of the expert which decides on it; otherwise, it is the expert who determines the question or issue and not
the court; the court is the final arbiter, not the experts or eyewitness; see Dr
Shanmuganathan  v  Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 FC. The court must form its own
decision in the light of the evidence given by the expert; see also Chin Sen Wah v Public
Prosecutor [1958] MLJ 154.

27
[62]  The plaintiff's expert Mr Siew Kwen Sia (PW2) said he had obtained and used 41 sample signatures
(from 1992–1999) for the purposes of comparison with the questioned signature ie the alleged signature
of the deceased on the second will which he marked as Q. He explained that he used many specimens in
this case because the specimens vary in many ways which he had listed at pp 45 and 46 of bundle C in his
report and their photographs are at pp 49–59. PW2 explained the reasons for using 41 specimens in his
report at p 44 as follows:
Normally about ten specimen signatures are sufficient to cover the variation shown by the specimens.
However, in this case, the specimen signatures appear to vary from time to time. This is because of the
simplicity of its structure coupled with the freedom of execution of the signature. Thus, a larger number
of specimen signatures[2011] 8 MLJ 32 at 68ie forty-one (as shown in Fig 1 to Fig 5) is used to study the
variation of the features in the specimen signatures before the authorship of the questioned will signature
is determined.
[63]  PW2 then went on to analyse all the natural variations in the specimens before concluding that the
specimen signatures of the deceased vary in many ways. He compared the questioned signature 'Q' with
all the specimens and noted the features in 'Q' that distinguish from the specimens (see pp 45–46 of
bundle C). On account of the 41 specimen signatures varying widely from 1992–1999, PW2 focused on
the contemporary specimens of the years 1998 and 1999 which he marked S25–S41 for his examination
with the questioned signature which was purportedly signed on 31 October 1998. From these specimens
S25–S41, PW2 found two predominating features in them ie the horizontal three protrudes to the right of
the horizontal above it (horizontal 2) and there were two or more areas of merging but these features are
not found in the questioned signature 'Q' (ref: p 47 of bundle C). He then went on to narrow down the
specimens to the periods from 29 June 1998 to 25 June 1999 which are the periods closer to the time the
questioned signature was allegedly made. These specimens are S35–S41. From these narrowed down
specimens, he found three common characteristics ie simplified to three (two in S38) levels; two or more
areas of merging and a general tendency to flatten against the base stroke. These common characteristics
were however not found in the questioned signature Q. PW2 found that 'despite the various possibilities
of variation in the specimens, none of them has the same combination of features as the questioned
signature Q' and 'more significant is that the questioned signature 'Q' lacks the features that allow it to be
placed among the specimens in the same time period as the date of execution of the purported will (31
October 1998)'. He therefore concluded that the questioned signature 'Q' on the said last will and
testament dated 31 October 1998 is of different authorship from the specimen signatures of the deceased.
[64]  Defendant's expert Mr Harcharan Singh Tara (DW7) on the other hand, had used nine specimens in
his comparison. They were from the period between 1993–1996. According to him, 8–10 specimens
suffice for comparison purposes. It is admitted that from these nine specimens, seven were signed in 1993
while the other two were signed in 1996. According to DW7, specimens within the range of five years are
contemporary. He disagreed that there should be specimens from 1998 to constitute contemporary since
the questioned signature was purportedly signed on 31 October 1998, the date on the will. He said there is
no change in the structure of the signature and hence the specimens were contemporary. From DW7's
report at bundle C pp 12–40 at p 13, he reported that the standards or specimens were roughly
contemporary in time basing on the standards 'ranging from 1993–1998 and the disputed signature was
signed in 1998'. This is undoubtedly untrue and[2011] 8 MLJ 32 at 69wrong because from the nine
specimens supplied and used by him seven were from 1993 and two from 1996. No specimens of 1998
were ever given to him. By 'contemporary' or 'contemporaneous', they mean existing, occurring or
originating at the same time or in the same period of time. I must say that to construe a period of five
years and about as 'contemporary' is a desperate attempt to stretch the meaning of 'contemporary' beyond
imagination. If DW7 were to construe otherwise ie that five years is not contemporary, then he would
have left with only two specimen signatures in 1996 to make the comparison which would be
28
fundamentally flawed as the minimum requirement seems to be 8–10 specimens. Since the questioned
signature was from 31 October 1998, specimens that are contemporary, by the meaning of the word,
ought to be existing, occurring or originating at the same time or in the same period of time. I am of the
view that a period of six months before and/or six months after 31 October 1998 could reasonably be
construed as contemporary bearing in mind that signature may not be a frequent or routine act of the
signatory. Even to over stretch it, a year before and/or a year after may reluctantly be acceptable but to
stretch it more than that cannot be accepted as 'contemporary'. As regards the 41 sample signatures used
by PW2 Mr Seow, DW7 criticised PW2 to be on 'fishing trips' for more standard signatures to 'fit' or 'not
fit' his conclusion and emphasised that 8–10 standard signatures of roughly contemporary in time should
suffice. Having perused PW2's report in bundle C pp 42–60 (a copy of the coloured specimens was
supplied to court), I do not find so. The examination of the many specimens was to determine whether
there were variation in the structure of those signatures and what were the peculiar features that could be
gathered to facilitate a proper comparison. From these specimens, PW2 was able to identify the
predominating features of the specimen signatures. Using those features, PW2 narrowed down the
comparison of the disputed signature with only samples between the period 29 June 1998 to 25 June 1999
since the questioned signature was purportedly signed on 31 October 1998. There was no attempt by PW2
to tailor his comparison of the questioned signature with selected or random specimen although there
were specimens in 1992, 1994, 1996, 1997 but to confine his final comparison to the specimens between
29 June 1998 to 25 June 1999. I find no merit in the implication or criticism of DW7 to cast on the intent
of PW2 to use more samples. I am inclined to agree that in view of the signature of the deceased being in
the form like a double 'z' with one on top of the other joined by a slanting stroke which was found to be
variable from the specimens from time to time, more samples could most probably assist the expert in
arriving at a more accurate assessment. I find support in Suspect Documents Their Scientific
Examination by Wilson R Harrison (3rd Indian Reprint) 2003 p 459 on the number of genuine signatures
to be used for comparison where the learned author said:
[2011] 8 MLJ 32 at 70
The minimum number of signatures which should be made available for comparison depends on many
factors. If the handwriting of the testator is good and the will or agreement was signed when in good
health, then a dozen contemporary signatures should be sufficient in the majority of cases. If the
handwriting of the testator is of poor quality and variable, then the more signatures made available for
comparison the better. It is one thing to have to say in evidence, 'I have examined six undoubted
signatures of the testator, but although they all showed considerable variation I failed to find in any one
the combination of handwriting characteristics found in the questioned signature, consequently I consider
it unlikely to be a genuine signature'; but it is far better to be able to state that a considerable number of
genuine signatures had been examined with the same result. The more signatures of a poor and variable
writer available, the stronger is the opinion which can be expressed as to the authenticity of a questioned
signature.
[65]  Indeed, in Scientific Examination of Questioned Documents by Ordway Hilton, (Revised Edition),
on the 'amount of standard writing', the learned author had suggested that more specimens could probably
reveal accurately the writer's habits, ability and range of variation when he said of the following:
That everyone does not sign his name or write any combination of words in exactly the same way twice is
one of the more complicating elements of handwriting identification. This natural variation must be
revealed by the known writing. Variation in writing is a personal factor — it is not the same for each
individual either in extent or nature. Besides, it can be influenced by the conditions under which the
writing was done. Here is the reason that no hard and fast rule can be set for a minimum number of
signatures or a minimum amount of general handwriting.
29
With many problems, 10 or 20 signatures should constitute an adequate sample, but there are a certain
number of cases that may require 30, 40 or even more signatures in order to accurately reveal the writer's
habits, ability and range of variation. Actually it is poor policy for the investigator to be satisfied with the
bare minimum when just a few additional specimens can greatly fortify the findings. (Emphasis added.)
[66]  PW2 had followed the guided principles in acquiring more specimens to assist him in the
determination of the authorship of the questioned signature and cannot be faulted for doing so. In this
respect, I am in favour of PW2's methodology of using more specimens that can greatly fortify his
findings. The allegation of fishing expedition by DW7 does not occur and has no basis but said in
unwarranted bad faith. From all the specimen signatures, Mr Seow, PW2, had laboriously identified all
the various ways that the specimens vary; he compared all the specimens and determined seven features
in the specimens before comparing them with the questioned signature which he found to be more
regular, orderly and open than in the specimens. He then confined the comparison by using the specimens
from May 1998 to 25 June 1999 marked S25–S34 where he determined two predominating features and
finally he only[2011] 8 MLJ 32 at 71narrowed down the comparison with the contemporary specimens
between 29 June 1998 to 25 June 1999 when he found three common characteristics. Using these three
common characteristics as the basis for his comparison with the questioned signature, he made his
findings as has been recapitulated in the preceding paragraph above (refer p 48 of bundle C). Mr
Harcharan Singh, DW7, relied basically on the pictorial impression or allographs which are specific
forms of graphemes such as a printed character or alphabet, the fluency in the questioned signature ie
with no tremor or hesitation in their formation or the dynamic or speed of the writing to hold that the
questioned signature did not differ from the standards or specimens. His nine specimens marked by him
were SS1 (a)–(h) and SS2. However, in his report at bundle C pp 15, 16 and 17, he had used standards
marked 'S14, S15, S16', 'S23, S24' and 'S3, S12, S24' for comparison and to form his opinions. These are
the specimens used by the plaintiff's expert. DW7 had been canvassing that as long as an expert 'has about
8–10 standards signatures which are roughly contemporary in time, executed on documents of, as equal
importance as the questioned signature', that suffices for the comparison and there is no need to fish for
more specimens to fit or not to fit the expert's conclusion; see p 17 of bundle C of his report at para 17(i).
He had nine standards which according to him, suffice for his comparison and there is no need to fish for
more but he appears to slap on his own face when he did fish from PW2's specimens to make comparison
and to form his opinion. The reasonable inference to draw in the circumstances is that DW7 had
insufficient specimens to enable him to arrive at an accurate opinion. I am certain that DW7 with his
experience is well aware that insufficient standards for comparison will vitiate his role to identify a
questioned signature. This is as stated in Forensic Science in Criminal Investigations & Trials by Dr BR
Sharma at p 578:
An expert may fail to identify a questioned writing because of insufficient standards for comparison. A
large number of standards has never been a handicap.
[67]  Despite having the benefits of PW2's specimens, DW7 was nevertheless selective to choose only
samples which are not as contemporary as what PW2 did for his final analysis and comparison with the
questioned signature. The most contemporary specimens are S35–S41 which formed the basis of PW2's
comparison and conclusion but they were never referred to nor used for comparison by DW7. Had DW7
been fair and honest as an expert witness, S35–S41 which are the closest specimens to the time of the
questioned signature, would have been selected by him to be used for comparison and to arrive at a
decision or finding which would probably assist him to achieve a more accurate opinion or stronger
opinion as expressed by Wilson R Harrison. I do not find DW7's opinion basing on the selective
specimens of PW2 and the non-contemporary specimens to be comprehensive and convincing to be
preferred by this court.

30
[2011] 8 MLJ 32 at 72
[68]  DW7's basis of concluding common authorship of the questioned signature is on the pictorial
impression. He said the structure of the signature is the same. Learned counsel for the plaintiff submitted
what has been pointed by the learned author David Ellen in his book The Scientific Examination of
Documents Methods and Techniques (2nd) Ed at p 16 that:
Although there seems to be scope for very many writings which are recognizably different at a quick
glance, there are far more writers than can be accommodated by the number of such variants. It follows,
therefore, that the writings of many people share a common overall appearance. This means that as an
indication of two similar writings being by one person, the quick glance at overall appearance is as
unreliable as it is when apparently different writings are taken to indicate two different writers. There is
far more scope within the detail of writing to separate different writers than there is in overall appearance.
[69]  Wilson R Harrison at p 520 of his same book cited above said of the following for which DW7
seems to have ignored:
The next step is to establish that it would prove impossible for even the most skilled forger to reproduce
every characteristic, whether obvious or concealed of the handwriting he is attempting to copy and yet
write fluently; also the fact that when a handwriting is copied, it is generally sufficient for the forger to
concentrate on reproducing the pictorial effect which is largely governed by slope and the more obvious
features of letter design.
[70]  I am of the view that the very first thing a forger will do would be to copy as closely as he could the
pictorial aspect of a writing with the primary intent that at a glance, no one would suspect the forgery
from the pictorial impression. I do not think that any general viewers of the writing or signature would
attempt to decipher details unless they are called to. Hence, by relying on the basis of the pictorial
impression without analysing the details in his comparison of the specimen signatures with the questioned
signature would certainly be unreliable and this without more should not be the basis expected of an
expert. 'The pictorial effect is the general appearance of the writing. A forger, if he is to succeed, must
imitate the pictorial effect. One, therefore, must not go by the pictorial effect. 'Appearance are deceptive'
is literally true in handwriting identification': per Dr BR Sharma in his book Forensic Science in Criminal
Investigation & Trials (4th Ed) p 586. I therefore agree with the plaintiff's submission that pictorial
impression and fluency in writing are insufficient to come to a just opinion on the common authorship of
the questioned signature. DW7 as an expert should be more comprehensive in his approach. The
distinction between an expert and a non-expert is that an expert will make a detailed examination whereas
any non-expert can just look at the pictorial impression and the fluency of the writing to give his opinion
outright.
[2011] 8 MLJ 32 at 73
[71]  DW7's next basis for his conclusion is the long tapering end in the signature. This could probably be
one of the many features; PW2 had identified a number of features as indicated in his report. To rely
merely on one single feature is certainly unsafe to conclude common authorship.
[72]  The other basis of DW7 is the speed of writing. He just used 'speed' to explain all the lesser features
found in specimens and the many differences that PW2 had listed down. He further used the phraseology
of 'dynamic of writing' to explain them and brushed away all the differences which he construed as
natural variations and as inconsistent, insignificant and non-fundamental for purposes of comparison or
examination. I find DW7's opinion in this respect too simplistic. In the first place, DW7 said he had
considered all the differences as determined by PW2 but nowhere in his report, as he had admitted
candidly, that he had indicated that he had done so. On the other hand, he attempted to say that there were
31
no difference by merely giving a sweeping statement that those were natural variations but without
rendering details or reasons. One would expect fundamentally from an expert is his observations,
examination, findings and the reasons for his findings, inter alia. I cannot accept an assertion from an
expert for something which he alleged that he had done but had nevertheless deliberately ignored in total
to state so in his expert report. Indeed, he claimed in his evidence that it is a waste of time to list out all
those differences as what PW2 did. I venture to say that he would perhaps found it equally a waste of time
to consider them or deliberately elected to ignore them. I find it proper to draw a reasonable inference that
he might not have directed his mind to those differences but only said he did to cover his own omission.
The role of a document examiner as PW2 and DW7 has been well summarized by the learned author
David Ellen in his book The Scientific Examination of Documents on the topic of 'examiner of questioned
documents', as follows:
The document examiner must be more than a technician; he must be a scientist, for the methods at his
disposal are those of applied science. Each question with which he is confronted is an individual research
problem, but, like all scientific investigations, each has as its ultimate goal the discovery of the facts. To
reach this goal the examiner must be thorough, accurate, and entirely without bias. His task is not to prove
by some devious means certain preconceived ideas of those who consult him, but to establish the facts
that tell of the document's preparation and subsequent history through a study of its identifying details and
the collation of its elements with those of known specimens.
The document examiner's works does not end with the discovery of the identifying details in a document.
He must properly interpret them and through logical reasoning arrive at a correct conclusion regarding the
problem at hand. After arriving at an opinion, he must be prepared to demonstrate the basis and reasons
for his opinion in a manner that a layman, be he judge, juror, or interested party, thoroughly understands.
[2011] 8 MLJ 32 at 74
[73]  PW2 had examined all the features in the specimens, identified the common features found and
compared them with the questioned signature. He identified the differences and explained them with his
reasoning. I find him to have complied with the guided principle on his role as a document examiner. For
a signature which could probably be construed easier to copy by a forger. I am of the view that every
single detail whether similarity, difference or defect should be considered as important by an expert and
should not be brushed aside by merely using the phrase that the differences are 'natural variations' or are
'inconsistent, insignificant and non-fundamental' without giving an account as to how and why they are so
formed as well as the reasons thereof. To camouflage the deficiencies by using these jargons without
anything to substantiate is most unsatisfactory and cannot be said that such opinion or finding is well
founded. Whatever holistic view should also be accounted for with reasons as holistic view can be
subjective and may not be empirical unless it is well grounded. As the learned author Ordway Hilton in
the Journal of Forensic Sciences, JFSCA, Vol 28 No 3, July 1983 p 684, said unequivocally that
'Differences cannot be ignored. Differences in two writings distinguish between the work of two writers.
But certain apparent differences may a have a logical explanation. Disguise, illness, intoxication and lack
of care in one writing but not in the other are common ones. They do not necessarily negate an
identification'. There is absolutely no evidence from DW7 to explain logically the differences that he
construed as natural variations. In any event there is nothing that he had mentioned of these differences in
his report. On a finding of fact, I do not find DW7's evidence in this aspect to be empirical and well
founded.
[74]  Reverting to the speed in writing, plaintiff submitted a paper titled 'Protecting Signatures Against
Forgery' presented by SK Gupta of Central Forensic Science Laboratory, Central Bureau of Investigation,
New Delhi, India at the 8th Meeting of the International Association of Forensic Sciences, Wichita,
Kansas, USA in May 1978 wherein a short passage of it is relevant herein:
32
If he (the forger) is able to imitate successfully the form of the letters, he will not be able to write it with
speed. If he wants to imitate the signature with speed he will not be able to copy the form successfully.
Thus we find that if a signature is written with speed, then that signature possesses an element which will
possibly protect it against forgery.
[75]  In other words, if the signature is written with speed, a forgery might not be able to copy the form
successful as he cannot do both. This is admitted by DW7. Hence, speed alone does not suffice to
conclude the common authorship of a signature; it must also be coupled with the form. Even if the
questioned signature was written with speed, an examiner is not relieved of his duty to look into its form
to determine the differences or defects. Hence, this[2011] 8 MLJ 32 at 75court is of the view that any
differences cannot be ignored by an expert document examiner. I do not find the opinion of DW7 to be
convincing when he failed to consider the speed together with the form by analysing all the differences
and/or similarities in order to come to an accurate opinion.
[76]  This court would expect every expert to be vigilant and would examine every nooks and lines of a
questioned signature comparing it with all relevant genuine specimens on the similarities as well as
differences or dissimilarities, and evaluate them before achieving a conclusion. It should be borne in mind
that an expert whose tendency is to conclude a finding in favour of the party requesting for his report and
opinion, should nevertheless not compromise his role as an expert and should be honest in his
fundamental duty which is to assist to ascertain the truth and perhaps to expose the forgery. He must act
professionally pursuant to his expertise. An opinion based on distorted view will find no sanctuary in a
court of law.
[77]  Having considered the evidence of both PW2 and DW7 including their respective reports and
considering their opinions and findings in the light of the facts and evidence of the whole case, this court
does not prefer the opinion of DW7 as this court is not satisfied that his opinion is well founded for
reasons above or supported with sufficient evidence (see United Asian Bank Bhd v Tai Soon Heng
Construction Sdn Bhd [1993] 2 CLJ 31 SC), but prefers the evidence of PW2 who had conducted a
detailed and comprehensive analysis which is well-grounded and for the reasons advanced above.
Consequently, on a balance of probabilities, this court accepts that the questioned signature of the
deceased in the second will to be most probably not of the same authorship of the deceased but that it is
most probably a forgery.
OTHER SUSPICIOUS CIRCUMSTANCES
[78]  In Tho Yew Pew & Anor  v  Chua Kooi Hean [2002] 4 CLJ 90, the Court of Appeal has held, inter
alia, that:
[1] 'Suspicious circumstances', in the context of wills, refer to the circumstances surrounding the making
of a will and not the circumstances pertaining to the testamentary capacity of the testator.
[79]  This court has deliberated on the salient suspicious circumstances surrounding the making of the
will earlier. An important fact which is not disputed by the parties is that the lawyer Chew Sien Chee and
the witness to the second will, Koh Seong Hai (DW2), had never diverged information of the existence of
the second will even after the death of the deceased. The intent and purpose of making a will is to have it
put into effect after the death of the testator. Even if presumably accepting the word of DW2 that the
deceased[2011] 8 MLJ 32 at 76allegedly told them not to tell anyone, it is unbelievable that Chew Sien
Chee, the lawyer who purportedly attested the second will and knew the death of the deceased having
attended the deceased's funeral would remain mute throughout about the existence of this second will and
did not even inform Caroline Heah, PW3 of it when he wrote to PW3 about the representation of
DW3, Chung Keng Chiew, who complained that he (DW3) had not instructed PW3 to represent him in

33
respect of the first will. Chew Sien Chee acting as solicitors for the other siblings of the plaintiff could
have easily notified PW3 the existence of the second will which was later in time where DW3 and the
plaintiff were not the executors, and put an end to the matter of the first will. This unexplained facts leads
to an irresistant doubt as to the existence of the second will well after the first will had been disclosed to
all siblings.
[80]  On the suspicious circumstances raised by the plaintiff basing on the relationship between the
deceased and DW1, DW5 and others, I find no necessity to add salt to the wounds to the existing sour
relationship among the siblings.
CONCLUSION
[81]  Having considered all the evidence and submission by both parties and for the foregoing reasons
upon a finding of facts, I hold that the first will is the valid and effective last will and testament of the
deceased and that the plaintiff has proved his case on a balance of probabilities. I also hold upon a
positive finding of facts that the defendants have failed to prove the second will to be the last will and
testament of the deceased on a balance of probabilities. Consequently, I allow the plaintiff's claim as
prayed for in para 26(a) of his amended statement of claim. I order that the Petition for Probate No 32–32
of 2000 in respect of the second will be forthwith struck out. Cost of RM35,000 is awarded to the
plaintiff.
Plaintiff's claim allowed with costs.

2. RANDOLPH YAP POW KONG & ANOR V YVONNE YAP YOKE SUM (F) & ORS
Succession — Probate — Testamentary capacity — Allegation that testator had no testamentary
capacity — Relevant point of time to determine testamentary capacity — Whether ailing memory
and weak mental power vitiate testamentary capacity — Testator diagnosed with Parkinson disease
and mild dementia — Whether testator was of sound disposing mind when he executed the will —
Whether undue influence, coercion or force exerted over testator

Succession — Will — Execution — Allegation that testator had no testamentary capacity —

Relevant point of time to determine testamentary capacity — Whether ailing memory and weak
mental power vitiate testamentary capacity — Testator diagnosed with Parkinson disease and mild
dementia — Whether testator was of sound disposing mind when he executed the will — Whether
undue influence, coercion or force exerted over testator

Succession — Will — Execution — Validity of — Will thumbprinted — Whether thumbprint of

testator was rolled over by coercion or force — Whether testator was of sound disposing mind
when he executed the will
This was a suit to invalidate a will and a power of attorney purportedly executed by Mr YY Lee ('the
deceased') on 18 January 2005. The plaintiffs were the two sons of the deceased from his first marriage.
The first, second and fourth defendants were his children from his second marriage with the third
defendant. The plaintiffs did not receive any bequests under the said will of the deceased. The sole
beneficiary of the will was his widow, the third defendant. As for the power of attorney, the donees were
the first and second defendant. They transferred two properties to themselves upon the purported
instructions of the deceased. The deceased fell ill in 2003 and was hospitalised. That was the time he was
diagnosed with Parkinson disease and mild dementia. He was also reported by the attending neurologist
34
to have suffered hallucination and delusion as a result of adverse reaction to medication in 2004. He
recovered when another drug to counter the side effect was given. He died in July of 2006, presumably
from the progression of his illness. The plaintiffs' case was that the deceased lacked testamentary
capacity, that he was subjected to the [2011] 3 MLJ 556 at 557influence of the defendants and that the
will was a forgery. Counsel for the plaintiffs also submitted the deceased was wheel-chair bound and
depended completely upon the second defendant for his everyday needs. The argument was that the
second defendant exerted undue influence on the deceased.
Held, dismissing the suit with costs:
 (1)The relevant point of time to determine testamentary capacity is the time when the testator signs
the will. He may have been lacking such capacity prior to the signing of the will or after signing
the will but that is irrelevant for purpose of determining the validity of the will. Hence, the point of
time that was crucial to the determination of the issue whether the deceased possessed a sound
disposing mind was 18 January 2005, ie the date the will and power of attorney were signed (see
para 11).
 (2)Ailing memory and weak mental power cannot not vitiate testamentary capacity (see para 14).
 (3)The will in question was professionally drafted by an advocate, one Miss Colina Chang who
had called a doctor to be present. Miss Chang personally called on the deceased to receive
instructions. She prepared a draft will the following day and it was returned with some spelling
corrections. The medical doctor who was present, Dr Tok had examined the deceased's vital signs
and held a brief conversation with him. Dr Tok was satisfied that the deceased was mentally alert.
These two witnesses were professionals who had no interest in the outcome of the litigation. Their
impartiality was not challenged. The defendants had discharged the burden of proving that the
deceased was of sound disposing mind when he executed the will in question (see paras 5, 14–15
& 20).
 (4)The facts showed that the plaintiffs were not as close to the deceased as they wanted the court
to believe. Therefore, there was nothing irrational or improbable about the impugned will that cut
them out of any inheritance (see para 20).
 (5)There was no evidence at all to suggest that the thumbprint of the deceased was rolled over the
will and the power of attorney by coercion or force. There was also no evidence that the second
defendant had exerted undue influence over the deceased although he lived in the same house at
the material time (see para 22).
Ini adalah tindakan untuk mentaksahkan wasiat dan surat kuasa wakil dilaksanakan oleh En YY Lee ('si
mati') pada 18 Januari 2005. Plaintif-plaintif adalah dua anak lelaki si mati daripada perkahwinan
pertamanya. Defendan-defendan pertama, kedua dan keempat adalah anak-anak si mati daripada
perkahwinan keduanya dengan defendan ketiga. Plaintif-plaintif [2011] 3 MLJ 556 at 558tidak menerima
apa-apa pewasiatan di bawah wasiat si mati tersebut. Satu-satunya benefisiari wasiat adalah balunya,
defendan ketiga. Untuk surat kuasa wakil, penerima kuasa wakil adalah defendan pertama dan kedua.
Mereka memindahkan dua hartanah kepada mereka sendiri kononnya atas arahan si mati. Si mati jatuh
sakit pada tahun 2003 dan dimasukkan ke hospital. Pada masa tersebut dia didiagnosis dengan penyakit
Parkinson dan demensia ringan. Dia juga dilaporkan oleh pakar neurologi yang merawatnya bahawa dia
mengalami halusinasi dan delusi akibat reaksi bertentangan kepada rawatan perubatan pada tahun 2004.
Dia sembuh apabila ubat lain untuk melawan kesan sampingan diberikan. Dia meninggal dunia pada Julai
2006, mungkin daripada kemaraan penyakitnya. Kes plaintif-plaintif adalah bahawa si mati tidak
mempunyai keupayaan pewasiatan, bahawa dia tertakluk di bawah pengaruh defendan-defendan dan
35
bahawa wasiat tersebut adalah pemalsuan. Peguam plaintif-plaintif juga berhujah si mati bergantung
kepada kerusi roda dan bergantung sepenuhnya kepada defendan kedua untuk keperluan hariannya.
Pertikaian adalah bahawa defendan kedua menggunakan pengaruh tak wajar ke atas si mati.
Diputuskan, menolak tindakan dengan kos:
 (1)Masa yang relevan untuk menentukan keupayaan pewasiatan adalah masa apabila pewasiat
menandatangani wasiat tersebut. Dia mungkin tidak mempunyai keupayaan tersebut sebelum
menandatangani wasiat tersebut atau selepas menandatangani wasiat tersebut tetapi tidak relevan
bagi tujuan menentukan kesahan wasiat tersebut. Maka, poin masa yang genting untuk
menentukan isu sama ada si mati memiliki minda yang waras adalah pada 18 Januari 2005, iaitu
tarikh wasiat dan surat kuasa wakil ditandatangani (lihat perenggan 11).
 (2)Daya ingatan yang lemah dan kuasa minda yang lemah tidak dapat menjadikan keupayaan
pewasiatan tak sah (lihat perenggan 14).
 (3)Wasiat yang dipersoalkan didraf secara profesional oleh peguam, seorang yang bernama Cik
Colina Chang yang memanggil doktor untuk hadir. Cik Chang secara peribadi berjumpa dengan si
mati untuk menerima arahan-arahan. Dia menyediakan wasiat yang didraf pada keesokan harinya
dan ia dikembalikan dengan pembetulan ejaan. Doktor perubatan yang hadir, Dr Tok telah
memeriksa tanda-tanda penting si mati dan bercakap sekejap dengannya. Dr Tok puas hati bahawa
si mati mindanya adalah peka. Kedua-dua saksi ini adalah profesional yang tidak mempunyai
kepentingan di dalam hasil litigasi tersebut. Sifat adil mereka tidak dicabar. Defendan-defendan
telah melepaskan beban pembuktian bahawa si mati adalah waras apabila dia melaksanakan wasiat
yang dipersoalkan (lihat perenggan 5, 14–15 & 20).
 (4)Fakta menunjukkan bahawa plaintif-plaintif tidak rapat dengan si mati seperti yang mereka
kehendaki mahkamah untuk mempercayainya. [2011] 3 MLJ 556 at 559Oleh itu, tidak terdapat
apa-apa yang tidak rasional atau sukar diterima akal mengenai wasiat yang memotong mereka
daripada menerima apa-apa pewarisan (lihat perenggan 20).
 (5)Tidak terdapat keterangan langsung untuk mencadangkan bahawa cap ibu jari si mati diletakkan
atas wasiat dan surat kuasa wakil oleh pemaksaan atau secara paksa. Juga tidak terdapat
keterangan bahawa defendan kedua telah menggunakan pengaruh tak wajar ke atas si mati
walaupun dia tinggal di dalam rumah yang sama pada masa material (lihat perenggan 22).
Notes
For cases on execution, see 11 Mallal's Digest (4th Ed, 2008 Reissue) paras 2529–2534.
For cases on testamentary capacity, see 11 Mallal's Digest (4th Ed, 2008 Reissue) paras 2422–2432.
Cases referred to
Banks v Goodfellow (1870) LR 5 QB 549, QBD (refd)
Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC (refd)
Gan Yook Chin (p) & Anor v Lee Ing Chin @ Lee Teck Seng &  Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309,
FC (refd)
Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97; [2003] 2 CLJ 19, CA
(refd)

36
Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 MLJ 97, CA (refd)
Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC (refd)

Richard Poh (Poh & Co Advocates) for the plaintiffs.

Yong Sie Mee (Loke King, Koh & Co Advocates) for the first and second defendants.

Ravinthran JC
INTRODUCTION
[1]  This is a suit to invalidate a will and a power of attorney purportedly executed by Mr YY Lee ('the
deceased') on 18 January 2005. Mr YY Lee died in July of the following year. The plaintiffs are the two
sons of the deceased from his first marriage. The first, second and fourth defendants are his children from
his second marriage with the third defendant. Needless to say, the plaintiffs did not receive any bequests
under the said will of the deceased. The sole beneficiary of the will was his widow, the third defendant.
As for the power of attorney, the donees were the first and second defendants. They transferred two
properties to themselves upon the purported instructions of the deceased. The plaintiffs' case is that the
deceased lacked testamentary capacity, that he was [2011] 3 MLJ 556 at 560subjected to the influence of
the defendants and that the will is a forgery. The burden to prove testamentary capacity and to prove due
execution of a will is on the propounder of the will which in this case are the defendants. On the other
hand, the burden to prove any extraneous vitiating circumstances such as undue influence or forgery is on
the person challenging a will. For this reason, the parties agreed at the outset that the normal order of
adducing evidence should be reversed in that the defendant would open the case. I agreed to the
suggestion based on the authority cited (see Dr Shanmuganathan v Periasamy s/o Sithambaram
Pillai [1997] 3 MLJ 61). The defendants called a total of nine witnesses which included two doctors and
the solicitor who prepared the testamentary documents. The plaintiffs were the only witnesses on their
own behalf. Before proceeding to discuss the issues in this case, I shall first summarise the evidence of
the respective parties.
SUMMARY OF THE DEFENDANT'S EVIDENCE
[2]  The deceased was apparently a very successful businessman in Kuching. He started out as an
insurance man and later ran his own insurance agency as the District Manager of AIA. The second
plaintiff even claimed that his annual income was RM750,000. The defendants challenged this assertion
on the ground that there was no documentary evidence such as income tax returns. Regardless of the
quantum of his annual earnings at the peak of his career which is not an issue in this case, what is not in
dispute is that the deceased was a wealthy man by the time he died at the age of 82. He owned numerous
landed properties in Sarawak which are the subject matter of the will and the power of attorney. These
properties included 'Rock Villa' (Lot 48 Section 35 Kuching Town Land District) at Ricketts estate which
was the residence of the deceased and his second wife, the third defendant.
THE DEFENDANTS — THE KUCHING FAMILY
[3]  The third defendant is the second wife of the deceased. The deceased raised a family with her in
Kuching. The first, second and fourth defendants are the children of the deceased and the third defendant.
The first defendant is the eldest daughter. She lived in Rock Villa with her parents until she got married
and moved to Kuala Lumpur in 1995. Therefore, she did not live in Rock Villa at the time of signing of
37
the will. However, when the deceased was hospitalised in 2003, she came back to Kuching to visit him.
She did not visit him frequently between 2003 and 2006 because she was busy with her child in Kuala
Lumpur. The second defendant is the eldest son. At the material time he lived in Rock Villa with his
parents. He told the court that the deceased had asked him in January of 2005 to call a lawyer to prepare
his will. The fourth defendant is the younger daughter. She did not live in Rock Villa at the material time.
She moved out after getting married in 1984. However, she met the [2011] 3 MLJ 556 at 561deceased
frequently as they worked in the same insurance company. She was not the deceased's employee as she
was an insurance agent in the company but later she managed to run her own agency. Sometime after the
deceased fell ill in 2003, the deceased executed documents to transfer his agency to her. At that time, Dr
Soo, her father's neurologist, certified that he was mentally sound. However, this transaction is not the
subject matter of dispute. She only moved into Rock Villa to help to take care of her parents in the later
part of 2005. Her mother was suffering from fourth stage kidney failure and her brother, the second
defendant suffered from a serious undisclosed illness as well. The fourth defendant was the daughter who
always accompanied her father to hospital. In fact she accompanied him to hospital in 2003 when he was
first diagnosed with Parkinson disease and mild dementia. The deceased and the third defendant have
three other children as well but they were not joined as defendants in this suit. They are Romano Yap,
Ricardo Yap and Eva Yap.
THE ATTESTING ADVOCATES
[4]  The second defendant called Miss Colina Chang who is an advocate to see the deceased to take
instructions to prepare a will. Miss Chang testified that she took instructions and returned the following
day with a draft will. The draft will was returned by the second defendant with some spelling corrections
in respect of the name of some of his grandchildren. She did not know who made the amendments. She
also called a doctor to examine the deceased before he executed the will. Miss Chang was aware that the
deceased had been diagnosed with Parkinson disease but was not aware that he suffered from dementia.
She confirmed with Dr Tok that the deceased was of sound disposing mind when he signed the will. She
explained the contents of the will and he understood what he was signing. The deceased himself corrected
the spelling of the names of his grandchildren who were mentioned in the will. Miss Chang got the
deceased to thumbprint at the amendment instead of reprinting another draft. She assisted him to place his
thumbprint over both the will and the power of attorney. She noticed his hand was shaking because of
Parkinson's disease and his speech was slow but she had no reason to doubt his mental capacity. The
defendants also called another advocate to testify. The deceased had apparently executed an earlier will in
2003. Ho Li Na was the advocate who attested that will. In that will, he bequeathed all his entire estate to
the third defendant. He also signed that will by affixing his thumbprint.
THE ATTENDING DOCTOR
[5]  The doctor who examined the deceased before he signed the will was Dr Tok. She checked the vital
signs of the deceased when she arrived at the house. She had a short conversation with the deceased. She
had no problem communicating with him and had no reason to suspect that he was suffering [2011] 3
MLJ 556 at 562from mental disorder. She, therefore, did not conduct a neurologic examination. She
certified that he was mentally alert and sound during the signing of the will and the power of attorney.
THE NEUROLOGIST
[6]  Dr Soo was the neurologist who attended to the deceased from 2003 until he died. The deceased was
first referred to him in March of 2003. He found that the deceased suffered from mild dementia and
vascular parkinsonism. The deceased scored 7 out 10 when he conducted the abbreviated mental test
('AMT') which is a structured tool to test for dementia. He treated the deceased with a drug
called exelon which improved his condition significantly. By August and October of 2003, the deceased
38
scored 10 of 10 in the AMT which indicated that he was normal. The only time the deceased suffered
hallucination or confusion was on 6 August 2004. However, that condition was due to the side effect of a
drug called madopar which was used to improve his physical state. He prescribed another drug
called seroquel which resolved the side effect. During subsequent follow ups in 20 August, 3 September
and 28 December of 2004, he found the condition of the deceased had gradually improved. The deceased
was able to converse and walk with no further episodes of hallucinations. Dr Soo did not perform AMT
on the follow up visits as his condition had improved and there was no evidence to show that his
cognitive ability had deteriorated.
FAMILY FRIEND — THE SECOND ATTESTING WITNESS
[7]  Philip Yong is a family friend. He knew the deceased since the 1960s. He went to the same school as
the second defendant but got to know him only in the 1980s. He had known the first and fourth
defendants for about ten years. The second defendant requested him to witness the will in question. He
noted that there was general chit chatting and exchange of greetings. The atmosphere at the signing event
was 'relaxed and nice'. He did not see anyone force the deceased to place his thumbprint on the will. The
deceased was in fine spirit and spoke with Colina Chang about the contents of the will. However, he
agreed with the plaintiffs' counsel that the deceased was slower. Nonetheless the deceased was mentally
alert and was still able to crack some jokes.
THE PLAINTIFFS — THE WEST MALAYSIAN FAMILY
[8]  The plaintiffs are the sons of the deceased from his first marriage in West Malaysia. He came over to
Kuching in the 1950s to work and raised another family with the third defendant. His first wife (Phyllis
Chong Tat Nyong) was in West Malaysia and had passed away some time ago. Apart from the plaintiffs,
the deceased also had a daughter by the name of Juliet with his first wife. She [2011] 3 MLJ 556 at
563did not join as a plaintiff in this suit. The first plaintiff is the younger son of the deceased and his first
wife in West Malaysia. He qualified as an accountant from the United Kingdom. His studies were
financed by the deceased. He stayed in Rock Villa on only four occasions. The first time was when he
came back during university holidays for a month. The second time was when the first defendant got
married. The third time was when the deceased was hospitalised in 2003. The fourth time was during the
funeral of the deceased. However, he referred to Rock Villa as the family home and said that the deceased
had told him that all his properties would be fairly divided between the two families. He agreed that he
did not visit his father after 2003. He said he was close to his father and was even asked on one occasion
to go through his accounts. That was when he discovered that his father had income of RM750,000pa.
However, during cross-examination, he conceded that he was not sure whether it was gross income from
insurance sales or net income. The second plaintiff is the elder son from his first marriage. He is a
pensioner. To his knowledge the deceased owned six lots of land as follows:
 (i)all that parcel of land together with the building thereon and appurtenances thereof situate at
Rock Road, Kuching, containing an area of 4,047.0 square metres, more or less and described as
Lot 48 Section 35 Kuching Town Land District (hereinafter referred to as the Property '1').
 (ii)all that parcel of land situate at Lutong/Kuala Baram Road, Miri, containing an area of 4654
square metres, more or less and described as Lot 10 Block 5 Kuala Baram Land District
(hereinafter referred to as the Property '2')
 (iii)

39
 o (a)all that parcel of land situate at Batu Kawa Road, Kuching containing an area of 4060
square metres, more or less and described as Lot 184 Block 223 Kuching North Land
District;
o (b)all that parcel of land situate at Batu Kawa Road, Kuching, containing an area of 4157
square metres, more or less and described as Lot 185 Block 223 Kuching North Land
District;
o (c)all that parcel of land situate at Batu Kawa Road, Kuching, containing an area of 4309
square metres, more or less and described as Lot 186 Block 223 Kuching North Land
District; and
o (d)all that parcel of land situate at Batu Kawa Road, Kuching, containing an area of 4456
square metres, more or less and described as Lot 187 Block 223 Kuching North Land
District. (hereinafter referred to as the Property '3')
[9]  According to the second plaintiff, the deceased told him before he passed away that the properties 1,
2 and 3 would be divided equally between the two families. He said he was close to his father. He rang
him every Chinese New Year until he passed away. He did not learn of his father's passing away for a few
months as no one told him. Like his brother he referred to Rock Villa as his family home although he
agreed that he stayed there only once. After his [2011] 3 MLJ 556 at 564father's death, he heard from
Romano who is his half brother that the first and second defendants had claimed that there was a will.
Romano told him that he was initially told that there was no will. However, neither the plaintiffs nor the
defendants called Romano to testify.
ISSUES
[10]  At the outset, the parties agreed that the central issue that would determine the suit is the validity of
the will and power of attorney dated 18 January 2005. As learned counsel for the plaintiffs rightly pointed
out, the burden to prove testamentary capacity, ie that he was of sound disposing mind and due execution
of the will is on the presenters of the will (see Udham Singh v Indar Kaur [1971] 2 MLJ 263 and Dr
Shanmuganathan v Periasamy s/o Sithambaram Pillai). I shall first consider whether the deceased was of
sound disposing mind when he signed the will and the power of attorney.
TESTAMENTARY CAPACITY Relevant time
[11]  The relevant point of time to determine testamentary capacity is the time when the testator signs the
will. He may have been lacking such capacity prior to the signing of the will or after signing the will but
that is irrelevant for purpose of determining the validity of the will. In this case, there is evidence that the
deceased fell ill in 2003 and was hospitalised. That was the time he was diagnosed with Parkinson disease
and mild dementia. He was also reported by the attending neurologist to have suffered hallucination and
delusion as a result of adverse reaction to medication in 2004. He recovered when another drug to counter
the side effect was given. He died in July of 2006, presumably from the progression of his illness.
However, the point of time that is crucial to the determination of the issue whether he possessed a sound
disposing mind is 18 January 2005, ie the date the will and power of attorney were signed.
Criterion of sound disposing mind
[12]  Both parties referred to the following famous passages from Cockburn CJ in Banks v
Goodfellow (1870) LR 5 QB 549). This passage was cited in the local case of Lee Ing Chin @ Lee Teck
Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97; [2003] 2 CLJ 19 (Court of Appeal) and Gan

40
Yook Chin (p) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ
309 (Federal Court):
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its
effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend
and appreciate the claims to which he [2011] 3 MLJ 556 at 565ought to give effect; and, with a view to
the latter object, that no disorder of the mind shall poison his affections, pervert his sense of
right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in
disposing of his property and bring about a disposal of it which, if the mind had been sound, would not
have been made.
In deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the
particular state of bodily health, that is to be attended to; the latter may be in a state of extreme imbecility,
and yet he may possess sufficient understanding to direct how his property shall be disposed of;
But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able
at all times to recollect the names, the persons, or the families of those with whom he had been intimately
acquainted; may at times ask idle questions, and repeat those which had before been asked and answered,
and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may
not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a
contract, and yet be competent to direct the distribution of his property by will. This is a subject which he
may possibly have often thought of, and there is probably no person who has not arranged such a
disposition in his mind before he committed it in writing.
[13]  From above passages from Banks v Goodfellow, which was approved by the Court of Appeal and
Federal Court in Lee Ing Chin @ Lee Teck Seng & Ors  v Gan Yook Chin & Anor, it is clear that
testamentary capacity is a slighter capacity than contractual capacity. In Tho Yow Pew & Anor v Chua
Kooi Hean [2002] 4 MLJ 97 Gopal Sri Ram JCA said as follows in respect of testamentary capacity:
Now, the law upon the subject of a testator's testamentary capacity, we find to be well settled. The
decided cases show quite clearly that very slight testamentary capacity is required for the making of a
will. The cases which wills have been held invalid for lack of testamentary capacity involve testators who
were utterly insane either upon the finding of the probate court or by reason of an order appointing a
committee on the ground of the insanity of the testator … What the law requires to vitiate testamentary
capacity is an insane delusion existing at the time of making the will. This will include insanity at the
time of the making or giving instructions for the making of the will.
[14]  There is no judicial pronouncement that only mental disorder or insanity will vitiate testamentary
capacity. However, from reading of the above passages of the superior courts, it is clear that ailing
memory and weak mental power cannot not vitiate testamentary capacity either. Whether the deceased
possessed a sound disposing mind at the time of the execution of the will is a question of fact to be
determined upon the evidence of the witnesses. The will in question was not executed in the presence of
only the testator and the presenters of the will. The will in question was professionally drafted by an
advocate, one Miss Colina Chang who had called a doctor to be present. Miss [2011] 3 MLJ 556 at
566Chang received a call from the second defendant who told her that his father wanted a will to be
prepared. She personally called on the deceased to receive instructions. She prepared a draft will the
following day and it was returned with some spelling corrections. It was a simple will that bequeathed the
entire estate of the deceased to his surviving wife, the third defendant. It is not disputed that the deceased
had made a previous will in 2003 that made a similar bequest. The only difference is that there were
contingency provisions for the distribution of the estate in the event the third defendant predeceased the
testator. In such an event, the beneficiaries would be the children and grandchildren of the deceased and
41
the third defendant. The medical doctor that was present was Dr Tok. Her evidence is to determine the
question whether the deceased possessed a sound disposing mind. Dr Tok examined the deceased's vital
signs and held a brief conversation with him. Dr Tok was acquainted with the deceased because she had
been making house calls to see the third defendant who is aging and unwell from fourth stage kidney
failure. This is what she said:
 Q:What else?
 A:Had chat with him.
 Q:Recall?
 A:Vaguely, asked him whether he took medication, who gave him, whether he was brought out his
house, whether family took him out socially.
 Q:How was his conversation?
 A:Reserved, shy, but he was making effort, words not clear but slurred, sometimes, facial
movement, maintained eye contact throughout my examination.
 Q:Did you have problem communicating?
 A:No, although sometimes answer not coming out in words.
 Q:You stated in letter that he was mentally sound, elaborate?
 A:Mentally alert, aware of his surroundings.
Mentally sound to me is when he can comprehend what I said.
[15]  Dr Tok was satisfied that the deceased was mentally alert because she managed to have a
conversation with him. His voiced was slurred and he was slow to respond because of Parkinson's disease
but she had no reason to conclude that he did not comprehend what she said to him. She thought it was
normal procedure for a doctor to be present because the deceased suffered from Parkinson's disease. She
was not told that he had been diagnosed with mild dementia as well. Dr Tok did not perform any
structured Q & A mental test on [2011] 3 MLJ 556 at 567him because she had no reason to suspect that
he was mentally unsound. This is what she said when challenged during cross-examination why she did
not perform a mental test:
 Q:See page 6, you said you were not suspicious that this test has to be done, in your certificate you
said he is mentally sound, I put to you that without doing the test, you are in no position to say
that?
 A:I disagree, my conversation with him tells a thousand words, people cannot recollect sometimes.
[16]  During re-examination, she said that at the end of conversation with the deceased she had no doubt
that he was able to make his own decision, that he was coherent, and that he was mentally sound. The
neurologist (Dr Soo) who treated the deceased between 2003 and 2006 was not called to be present during
the will signing ceremony but he was called to testify about the mental condition of the deceased. His
evidence strongly supported the evidence of Dr Tok because on the last three occasions that he saw the
deceased on 20 August, 3 September and 28 December of 2004, he did not see the need to perform any
mental tests because he was able to converse with him and there was no evidence that his cognitive ability
had deteriorated. Counsel for the plaintiffs submitted that Dr Soo did not perform a complete AMT
during the later visits of the deceased because his cognitive ability had deteriorated. With respect, this

42
submission is pure speculation. Dr Soo categorically said that there was no deterioration in the cognitive
ability of the deceased and that he was able to communicate with him on his last visit. He said that in
80%–90% of cases, cognitive impairment can be assessed by simple communication. He also testified
that he had diagnosed the deceased for mild dementia in 2003 and he was treated with a drug
called exelon. Thereafter his score on the AMT improved and he scored 10 out of 10. Counsel for the
plaintiffs referred him to the Merck Manual of Medicine that states that dementia is a progressive illness.
However, Dr Soo found that up to 28 December 2004, ie the last examination before the signing of the
will, the deceased was able to communicate with him and thus he had no reason to perform the AMT on
him. Dr Soo said as follows:
 Q:When he saw you on 3.9.2004 and subsequently on 28.12.2004, did you conduct any AMT test
on him?
 A:I did not conduct a complete AMT test but I did talk to him and gather enough information to
access his physical and general status. As at that point in time, I did not feel a need to complete a
AMT test.
 Q:When does the situation warrant a complete AMT test in your view?
 A:AMT test is not performed routinely in every my follow up of patient. I would do it if I feel the
patient is not responding well to my treatment, when I need to change a drug, when I suspect the
patient is not doing well in the treatment and sometime as routine at certain interval, for instance, 6
months, yearly etc.
[2011] 3 MLJ 556 at 568
[17]  During cross-examination, Dr Soo reiterated that an AMT is not always necessary to determine
whether a patient had cognitive impairment:
 Q:At any given point in time it is very difficult to ascertain accurately if the patient have cognitive
impairment and to what degree without the benefit of AMT. Do you agree?
 A:Objectively, mental state is best assessed with structured tools, example AMT. However, mental
state (cognitive impairment) can often be assessed subjectively by simple communication with
patient and asking patient some questions. The benefit of structured tools are (1) it can be used for
comparison at different point in time, (2) it can be also used for comparison if different doctor
were to assess the patient. Subjective tests that I mentioned earlier would not have such advantage.
So the answer is structure tools are desired or preferable but not absolutely necessary but depends
on the purpose of the assessment.
[18]  Dr Soo said that he was not able to communicate with the deceased only in November of 2005:
 Q:How did you normally communicate with him?
 A:In English. I have no problem communicating with him during his consultation and his follow
up with me till November 2005. Meaning that from 2003 until the last follow up that is on
28.12.2004, we could communicate. I could not communicate with him in November 2005.
[19]  Dr Soo was not present during the signing of the will. However, Dr Soo's evidence supports Dr
Tok's opinion that she was able to ascertain the mental condition of the deceased without performing a
structured Q & A test as the deceased was able to communicate and able to comprehend what was being
said to him. Apart from referring to the Merck Manual of Medicine which was described by Dr Soo as a
manual for the general practitioner, the plaintiffs did not call any neurologist to challenge Dr Soo's
43
opinion evidence. Counsel for the plaintiffs suggested that the fact that Dr Tok was not told that the
deceased suffered from dementia is significant. However, regardless of that omission, Dr Tok actually
conducted a conversation with the deceased and satisfied herself that he was aware of his surroundings
and was able to comprehend her questions. She even said that the deceased was passionate when the
subject of the conversation turned to dancing. She thought, at that point, that if the deceased could get out
of his chair to dance, he would have done so. Dr Soo gave evidence that the deceased suffered from only
mild dementia and that his AMT scores were normal after treatment. The evidence of Dr Tok is also
corroborated by Miss Colina Chang. She said that the deceased personally gave her instructions in respect
of the disposition of his properties. He wanted to give everything to his second wife and if she
predeceased him he wanted to leave his properties to his children and [2011] 3 MLJ 556 at
569grandchildren. He gave the percentage apportionments to her in respect of the bequest to the children
and grandchildren of his second marriage. Miss Colina Chang said as follows:
 Q:Can you tell the Court what happened?
 A:Then I start to take instruction from him. He told me that he wants to leave whatever he has
when he dies to his wife. And if his wife predeceases him, he will leave some of it to his children
and some to his grand children.
 Q:Then can you tell the Court what else did he say concerning the will?
 A:He said to give certain percent to the children and some to his grand children, then he gave me
instruction to do power of attorney.
[20]  The evidence of Colina Chang if accepted as true would mean that a few days before the execution
of the will, the deceased possessed sufficient control of his mental faculties to determine what percentage
of his property he wanted to distribute among his children and grandchildren. On the day of the execution
of the will, Miss Colina Chang read and explained the will to the deceased and he told her that he
confirmed it. However, he managed to notice some spelling errors in respect of the names of his
grandchildren and pointed it out to her. She corrected the names and requested the deceased to thumbprint
the said amendments. Her evidence corroborates the evidence of Dr Tok that there was no reason to
suspect that the deceased could not comprehend what was being said to him. Miss Colina Chong called a
doctor to be present because he was old and had Parkinson's disease but he was able to communicate with
her. After conversing with him and explaining the will, she did not doubt his mental capacity. Dr Tok and
Miss Colina Chang were subjected to meticulous and rigorous cross-examination by counsel for the
plaintiffs in respect of their role in the signing of the will by the deceased. However, both of them were
consistent in their testimonies that the deceased was not forced to sign the will and that he was mentally
capable when he did so. These two witnesses are professionals who have no interest in the outcome of the
litigation. In fact their impartiality was not challenged. It is true that their services had been engaged by
the propounders of the will. However, I have no reason to think that these two professionals would
perjure themselves in court just so that the defendants could benefit from the impugned will. The second
attesting witness (Philip Yong) also told the court that the deceased was mentally alert and knew what
was happening. This witness, although a family friend of the defendants, is not a beneficiary of the will.
He was also subjected to painstaking and lengthy cross-examination. However, he was consistent in his
evidence that the deceased was mentally alert, could converse on that day but with slurred slowed speech
and was able to joke. I see no reason to doubt the credibility of this witness. On the other hand, the
plaintiffs have not given any evidence to suggest that the deceased was not of sound mind. The second
plaintiff said that he called his father every year to wish him Happy Chinese New Year but in the [2011] 3
MLJ 556 at 570year 2005, he noticed his father was forgetful. However, he agreed that his father could
still remember him. Therefore I find that the defendants have discharged the burden of proving that the

44
deceased of sound disposing mind when he executed the will in question. I have also weighed the
probabilities of the deceased not making the impugned will in question. The scale certainly tilts towards
the deceased making such a will. This is because another advocate (Ho Li Na) testified virtually
unchallenged that deceased had made a previous will in which he bequeathed all his properties to his
surviving wife (the third defendant) as well. The argument of the plaintiffs that the deceased would have
left Rock Villa to be shared between the children of both his wives seems very improbable. This is
because by their own admission, the plaintiffs never lived in this house. The second plaintiff only visited
Rock Villa once in his life time. The first plaintiff stayed there on his short visits only four times. Yet
both these witnesses referred to this property as their 'ancestral family home'. The evidence of the third
defendant has a greater ring of truth in it. She said she lived in the house with the deceased since it was
constructed and raised her family there. She directed the purchase of materials for the construction of the
house and she was told it was her matrimonial home. The plaintiffs also told the court they were close to
the deceased. The implication is that the deceased would have left them some property to be shared with
their stepbrothers and stepmother. However, from their own testimonies, it can be inferred that they were
not close to the deceased. The plaintiffs only visited their father only once since he fell ill in 2003. They
only called him every Chinese New Year. The second plaintiff did not even attend his father's funeral. He
said he was not aware of his passing away for a few months. However, the first plaintiff who shares the
same address as him managed to attend the wake for the deceased. The second plaintiff also admitted that
at one point during the stock market crash of the late 90s, he had wanted to borrow money (RM8,000)
from the deceased. However, the deceased refused to lend him any money. It was the fourth defendant
who loaned him the money. All these facts only served to show that the plaintiffs were not as close to the
deceased as they would want the court to believe. Therefore, there is nothing irrational or improbable
about the impugned will that cut them out of any inheritance.
WHETHER ANY SUSPICIOUS CIRCUMSTANCES
[21]  Learned counsel for the plaintiffs referred to the description of the will signing scene by the
witnesses and suggested that the deceased probably thought that he was at party and did not realise that he
was signing his last will and testament which dealt with all his properties. Philip Yong described the
atmosphere as 'relaxed and nice' where there was 'social chit chat' and 'jokes'. Dr Tok said that:
[2011] 3 MLJ 556 at 571
… drinks served, we were talking about some social event, going for drinks, If YY Lee could come off
his chair and dance he would, we talked something that he is passionate about.
[22]  Miss Colina Chang said that the chit chat was about weather, TV programmes, the deceased's olden
days dancing and drinking. In my opinion, there is nothing suspicious about the description of the will
signing scene. The serving of drinks and chit chatting with invited guests is a common social etiquette
practice. Dr Tok and Miss Colina Chang told the court that the deceased understood the conversation they
conducted with him. Therefore, there is no reason to infer that the whole social scene with drinks and chit
chatting was elaborately contrived to induce the deceased to believe that he was at a party instead of a
will signing ceremony. Counsel for the plaintiffs also submitted that Miss Colina Chang had assisted the
deceased to roll over his thumbprint. Again, I see nothing suspicious in this act. It is not disputed that the
deceased's hands were shaky. He was 80 years old at that time and he suffered from Parkinson's disease.
Dr Soo said that the deceased suffered from stiffness, slowness and some unsteadiness. It is common even
for a normal person to be assisted to roll over the thumbprint in a formal document. There is no evidence
at all to suggest that the thumbprint of the deceased was rolled over the will and the power of attorney by
coercion or force.

45
[23]  Counsel for the plaintiffs also submitted that the defendants should have called Dr Soo to the will
signing ceremony to certify that the deceased was of sound disposing mind instead of Dr Tok who was
the physician of the deceased's second wife. I do not think that this is a suspicious circumstance.
[24]  Dr Soo was the only neurologist in Sarawak at that time. It is not in evidence why he was not called
but there is no rule of law that only neurologist should be called to certify that someone is sane or of
sound disposing mind. Dr Tok who is a qualified physician gave credible and convincing evidence that
she had held a conversation with the deceased on general matters for about ten minutes and she was
satisfied that he was of sound mind. The evidence of other disinterested witnesses such as Philip Yong
and Colina Chang also established that the deceased possessed the capability to converse and was aware
of what was being said to him. He even had the presence of mind to make a spelling correction on the
will. Therefore the argument that there is something suspicious on the part of the defendants in not calling
Dr Soo to certify the deceased as possessing a sound mind before he signed the will is without merit. In
the premises, I find that there are no suspicious circumstances surrounding the making of the will.
WHETHER UNDER UNDUE INFLUENCE
[25]  Counsel for the plaintiffs submitted the deceased was wheelchair bound [2011] 3 MLJ 556 at
572and depended completely upon the second defendant for his everyday needs. The argument is that he
exerted undue influence on the deceased. Counsel for the plaintiffs also submitted that there was
something suspicious about the power of attorney that was executed in favour of the first and second
defendant. He said that the power attorney was unnecessary as there were provisions in the will for the
distribution of the estate in case the third defendant died before the deceased. In my opinion, there is no
evidence that the second defendant had exerted undue influence over the deceased although he lived in
the same house at the material time. He gave unchallenged evidence that he was seriously ill around the
same time. Miss Colina Chang personally took instructions from the deceased before she drafted the will.
She did not report that the deceased was subjected to the undue influence of the second defendant when
he gave the said instructions. The deceased did not live alone with the second defendant. His mother, the
third defendant lived there as well. The deceased who is apparently wealthy also had two Indonesian
maids to look after him and attend to his needs. The suggestion of the plaintiffs that the second defendant
had unduly influenced the deceased appears speculative and without basis.
CONCLUSION
[26]  The burden to prove testamentary capacity and due execution of the will is on the defendants. In my
opinion that burden was discharged by the defendants. There is no evidence at all that the deceased was
not of sound mind at the time or around the time of making the will in question. The defendants called the
doctor and lawyer who were present during the time the will was signed to give credible evidence that the
deceased was of sound mind and that he knew what he was signing. They also called the neurologist who
was treating the deceased to the witness stand. Dr Soo was able to communicate with the deceased about
three weeks before the date in question. The sole beneficiary of the will in question is the third defendant.
The sole beneficiary of a previous will executed in 2003 also named the third defendant as the sole
beneficiary. Therefore, there is no reason to treat the impugned will as irrational and suspicious. In
respect of the allegation of undue influence, there is no evidence at all to support the plea. All the
circumstances pertaining to the signing of the will appear to be normal. The allegation of the plaintiffs
that the fact they were cut out of the will is a suspicious and irrational circumstance is without merit.
Their own evidence establishes that they were not as close to the deceased as they claimed. For example,
the deceased who was wealthy man had not even bothered to lend RM8,000 to the second plaintiff when
he urgently required the money. I therefore rule that the will and power of attorney are valid. The suit is
therefore dismissed with costs.

46
Suit dismissed with costs

3. CHOO MOOI KOOI @ CHOO SOO YIN V CHOO CHOON JIN @ JIMMY CHOO AND
OTHER SUITS
Succession — Will — Validity — Deceased's nephew applied for and obtained grant of probate —
Plaintiffs challenged validity of will — Testamentary capacity — Whether deceased had
testamentary capacity to execute will — Whether deceased lacked testamentary capacity to execute
memorandum of transfer ('MOT') — Whether there were suspicious circumstances surrounding
making of will and MOT — Whether defendant discharged burden of proving testamentary
capacity and due execution of will and MOT — Whether grant of probate issued based on will
ought to be revoked — Whether defendant should be ordered to pay damages to estate for all losses
caused with interest
47
When Choo Peng Hoi @ Choo Peng Jen ('the deceased') died on 5 February 2005, the deceased's nephew
('the defendant') applied for and obtained a grant of probate to the estate of the deceased based on the last
will purportedly made by the deceased on 2 August 2004 ('the will'). The will named the defendant as the
executor and sole beneficiary of all the estate of the deceased, which at the time of his death consisted of
a one-half undivided share in a piece of land in Kedah ('the land') and some shares in public listed
companies. On 2 August 2004, the deceased had also executed a memorandum of transfer ('MOT') gifting
the land to the defendant for the consideration of 'love and affection'. On 2 August 2005, the defendant
had obtained a grant of probate to the estate of the deceased based on the will. On 5 April 2005, the
defendant had registered the land in his favour. The brother and sister of the deceased ('the plaintiffs')
filed two separate suits against the defendant challenging the validity of the will and the MOT. The
present judgment was in respect of these consolidated suits. The plaintiffs' case was that as at 2 August
2004, the deceased did not possess the necessary testamentary capacity to make the will and to execute
the MOT; that the alleged making of the will was surrounded by suspicious circumstances; and that the
deceased was coerced or unduly influenced by the defendant to execute the MOT. Accordingly the
plaintiffs prayed, inter alia, for the will to be declared invalid, for the grant of probate granted to be
revoked and the MOT to be declared a void or insufficient instrument. It was thus the plaintiffs' position
that the deceased had died intestate and consequently all assets belonging to the deceased at the time of
his death should devolve to the plaintiffs as the only surviving siblings of the deceased. In response the
defendant submitted that the deceased had satisfied[2012] 2 MLJ 691 at 692all the testamentary-capacity
requirements to make the will on 2 August 2004 and that the will was dully made before a solicitor. The
defendant further submitted that the transfer of the land by way of the MOT had been registered and that
the defendant held an indefeasible title over the land.
Held, allowing the plaintiffs' claim with costs:
 (1)The burden of proving testamentary capacity and due execution of the will was on the
defendant. The defence chose to rely purely on the evidence of the solicitor who prepared the
deceased's will and witnessed its execution by the deceased. However, this solicitor displayed
selective memory and was evasive on crucial questions put to him. It also appeared that the taking
of instructions and execution of the will by the deceased was hurriedly done, since certain
corrections to the will were merely done by deletion and a type-over rather than a fresh copy being
produced. Thus, the defendant had failed to discharge the burden on him to establish that the
deceased possessed full testamentary capacity to make the will or execute the MOT on 2 August
2004. The court was more persuaded by the medical reports and testimony of the three medical
consultants who attended to the deceased on or about 9 August 2004 to 11 August 2004 to arrive at
the finding of fact that the medical condition of the deceased detected some one week later was of
an illness of such severity and of a chronic nature that in all probability it had impaired the
deceased's mental faculty even on 2 August 2004. The defence failed to call any evidence to
dispute the seriousness of the deceased's affliction as stated in the medical reports (see paras 19–
24).
 (2)The suspicious circumstances surrounding the due execution of the deceased's will and the
MOT, which were inference of facts drawn from evidence adduced before this court, were not
dispelled by the defendant on whom lay the burden to do so. These circumstances included, inter
alia, the necessity for making both a will and the MOT in respect of the land; the execution of the
will and MOT by the deceased merely affixing his thumbprint to the two documents rather than by
way of a signature when he was able to sign in English; the solicitor's evidence that the defendant
had paid the legal fees for the preparation of the will and execution of MOT which was later
denied by the defendant (see paras 25–27 & 29).
48
  (3)Further the defendant had failed to displace the plaintiff's case that the defendant had exerted
'undue influence' or 'dominion' over the will and mind of the deceased by any credible independent
evidence (see para 28).
 (4)The basic issue before this court was whether the deceased had the necessary testamentary
capacity to make the will and execute the MOT. As such, it did not matter that the cause of
testamentary incapacity or the affliction suffered by the deceased at the time of the making of the
will[2012] 2 MLJ 691 at 693and MOT was pleaded to be cancer. The plaintiffs had succeeded in
their case against the defendant to invalidate both the will and the MOT. Thus, it was declared that
the deceased died intestate, that the grant of probate issued on 2 August 2005 be revoked and that
the defendant renders full accounts of acts conducted by him pursuant to the grant of probate. The
transfer of the land in favour of the defendant was declared invalid and the defendant ordered to
pay damages to the estate for all losses caused by the wrongful transfer of the land to himself. The
defendant was also ordered to pay damages to the estate for all losses caused to the estate with
interest (see paras 29–30).
Apabila Choo Peng Hoi @ Choo Peng Jen ('si mati') meninggal dunia pada 5 Februari 2005, si mati
('defendan') memohon dan memperolehi geran probet bagi harta pusaka si mati berdasarkan kepada
wasiat terakhir yang dikatakan dibuat oleh si mati pada 2 Ogos 2004 ('surat wasiat tersebut'). Surat wasiat
tersebut menamakan defendan sebagai wasi dan satu-satunya benefisiari kesemua harta pusaka si mati,
yang pada masa dia meninggal dunia termasuk separuh bahagian tidak dibahagi sebidang tanah di Kedah
('tanah tersebut') dan beberapa saham di syarikat-syarikat yang disenarai awam. Pada 2 Ogos 2004, si
mati juga telah memeterai satu memorandum pindah milik ('MOT') menghadiahkan tanah tersebut kepada
defendan sebagai balasan kasih sayang. Pada 2 Ogos 2005, defendan telah memperolehi geran probet
harta pusaka si mati berdasarkan kepada wasiat tersebut. Pada 5 April 2005, defendan mendaftarkan tanah
tersebut memihak kepadanya. Adik-beradik lelaki dan perempuan si mati ('plaintif-plaintif') memfailkan
dua guaman berasingan terhadap defendan mencabar kesahan wasiat dan MOT tersebut. Penghakiman ini
adalah berkaitan dengan guaman yang digabungkan ini. Kes plaintif-plaintif adalah bahawa setakat 2
Ogos 2004, si mati tidak mempunyai apa-apa keupayaan perwasiatan untuk membuat wasiat dan untuk
menandatangani MOT tersebut; bahawa pembuatan wasiat yang didakwa diselubungi oleh hal keadaan
yang meragukan; dan bahawa si mati dipaksa atau dipengaruhi secara tidak wajar oleh defendan untuk
menandatangani MOT. Dengan itu plaintif-plaintif memohon, antara lain, untuk wasiat tersebut
diisytiharkan tidak sah, untuk geran probet yang diberikan dibatalkan dan MOT diisytiharkan batal atau
suratcara yang tidak memadai. Dengan itu adalah hujahan plaintif-plaintif bahawa si mati telah mati tanpa
wasiat dan dengan itu kesemua aset kepunyaan si mati pada masa dia meninggal dunia sepatutnya
diturunkan kepada adik-beradik si mati yang masih hidup. sebagai balasan, defendan menghujahkan
bahawa si mati telah memenuhi kesemua keperluan keupayaan pewasiatan untuk membuat wasiat
tersebut pada 2 Ogos 2004 dan bahawa wasiat tersebut dibuat di hadapan seorang peguamcara. Defendan
selanjutnya menghujahkan bahawa pindah milik tanah tersebut[2012] 2 MLJ 691 at 694melalui MOT
telah didaftarkan dan defendan memegang hak milik tidak boleh sangkal ke atas tanah tersebut.
Diputuskan, membenarkan tuntutan plaintif-plaintif dengan kos:
 (1)Beban membuktikan keupayaan pewasiatan dan penandatanganan wasiat adalah pada defendan.
Pihak pembelaan memilih untuk bersandar semata-mata atas keterangan peguamcara yang
menyediakan wasiat si mati dan menyaksikan penandatanganannya oleh si mati. Walau
bagaimanapun, peguamcara ini menunjukkan daya ingatan memilih (selective memory) dan
mengelak soalan-soalan penting yang ditanya kepadanya. Juga kelihatan bahawa pengambilan
arahan dan penandatanganan wasiat oleh si mati dibuat secara tergesa-gesa, oleh sebab pembetulan

49
 tertentu kepada wasiat tersebut dibuat hanya dengan memadamkannya dan ditulis diatasnya dan
bukan salinan baru dikemukakan. Oleh demikian, defendan telah gagal melepaskan beban ke
atasnya untuk membuktikan bahawa si mati mempunyai keupayaan penuh pewasiatan untuk
membuat wasiat tersebut atau menandatangani MOT pada 2 Ogos 2004. Mahkamah lebih yakin
dengan laporan perubatan dan keterangan tiga perunding perubatan yang merawat si mati pada
atau sekitar 9 Ogos 2004 hingga 11 Ogos 2004 untuk membuat penemuan fakta bahawa keadaan
kesihatan si mati dikesan lebih kurang seminggu kemudian didapati mengalami penyakit yang
teruk dan bersifat kronik yang berkemungkinan besar mencacatkan daya pemikiran si mati
walaupun pada 2 Ogos 2004. Pihak pembelaan gagal untuk mengemukakan apa-apa keterangan
untuk mempertikaikan keseriusan penderitaan si mati seperti yang dinyatakan di dalam laporan
perubatan tersebut (lihat perenggan 19–24).
 (2)Hal keadaan yang meragukan yang menyelubungi penandatanganan wasiat si mati dan MOT,
yang merupakan anggapan fakta yang dibuat daripada keterangan yang dikemukakan di hadapan
mahkamah ini, tidak dipatahkan oleh defendan yang di atasnya terletak beban untuk berbuat
demikian. Hal keadaan ini termasuk, antara lain, keperluan untuk membuat kedua-dua wasiat dan
MOT berkaitan dengan tanah tersebut; penandatanganan wasiat dan MOT oleh si mati dengan
hanya meletakkan cap ibu jari atas kedua-dua dokumen dan bukan dengan menandatanganinya
apabila dia boleh menandatangan dalam bahasa Inggeris; keterangan peguamcara bahawa
defendan telah membayar fi guaman untuk penyiapan wasiat dan penandatanganan MOT yang
kemudiannya dinafikan oleh defendan (lihat perenggan 25–27 & 29).
 (3)Selanjutnya defendan telah gagal untuk menyingkirkan kes plaintif-plaintif bahawa defendan
telah menggunakan 'undue influence' atau 'dominion' ke atas keupayaan dan pemikiran si mati
dengan apa-apa keterangan bebas yang boleh dipercayai (lihat perenggan 28).
[2012] 2 MLJ 691 at 695
 (4)Isu asas di hadapan mahkamah adalah sama ada si mati mempunyai keupayaan pewasiatan
yang diperlukan untuk membuat wasiat dan menandatangani MOT. Oleh demikian, tidak penting
bahawa kausa ketidakupayaan perwasiatan dan penderitaan yang dialami oleh si mati pada masa
membuat wasiat dan MOT diplidkan sebagai kanser. Plaintif-plaintif telah berjaya di dalam kes
mereka terhadap defendan untuk menidaksahkan kedua-dua wasiat dan MOT. Maka, diisytiharkan
bahawa si mati meninggal dunia tanpa wasiat, bahawa geran probet yang diberikan pada 2 Ogos
2005 dibatalkan dan bahawa defendan bertanggungjawab sepenuhnya atas tindakan yang
diambilnya menurut geran probet tersebut. Pemindahmilikan tanah memihak kepada defendan
diisytiharkan tidak sah dan defendan diperintahkan membayar ganti rugi kepada estet tersebut bagi
semua kerugian yang disebabkan oleh pindah milik salah tanah tersebut kepada dirinya sendiri.
Defendan juga diperintahkan membayar ganti rugi kepada estet bagi kesemua kerugian yang
disebabkan kepada estet dengan faedah (lihat perenggan 29–30).
Notes
For cases on validity of will, see 11 Mallal's Digest (4th Ed 2011 Reissue) paras 2789–2793.
Cases referred to
Chock Yook Kwai  v  Chock Yook Chong & Ors [2002] 8 CLJ 161, HC (folld)
Eu Boon Yeap & Ors  v  Ewee Kean Hoe [2008] 2 MLJ 869, CA (folld)

50
Gan Yook Chin (P) v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, FC (folld)
Khaw Cheng Bok  v  Khaw Cheng Poon & Ors [1998] 3 MLJ 457, HC (folld)
Khaw Cheng Poon & Ors  v  Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540, CA (folld)
Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA (folld)
Waring & Waring (1848) 13 ER 715 (refd)
Legislation referred to
National Land Codes 340(2)(b)
Rules of the High Court 1980O 6, O 8, Form 14A
Wills Act 1959s 15

John Khoo (Elson Beh with him) (Ismail, Khoo & Associates) for the plaintiffs in Case Nos 22–619 of
2005, 22–653 of 2005, 22–342 of 2006 and 22–348 of 2006.
Ganesh Ponniah (Geh Cheng Lok & Co) for the defendant.
[2012] 2 MLJ 691 at 696

Varghese George JC:

[1]  After a full trial, I had on 12 July 2011 delivered my decision in this consolidated proceeding stating
my broad reasons for the same. I had indicated then that I will issue the full grounds for my decision. I do
so now.
[2]  Choo Peng Hoi @ Choo Peng Jen ('the deceased') died a bachelor on 5 February 2005 at Penang
Adventist Hospital. He was 63 years of age and the cause of death recorded on the death certificate was
'Gastric Carcinoma with Sepsis'.
BACKGROUND
[3]  At the time of his death the deceased was the registered owner of a 1/2 undivided share in a piece of
land known as Lot 763 (held under Grant Mukim No 15) in the Mukim of Padang Cina, Daerah Kulim,
Negeri Kedah. He also held some shares in public listed companies.
[4]  The plaintiff in Suit Nos 22–342 of 2006 and 22–348 of 2006 was the brother of the deceased.
The plaintiff in Suit Nos 22–619 of 2005 and 22–653 of 2006 was the sister of the deceased.
[5]  The common defendant named in all the suits was a nephew of the deceased. The defendant is also
the son of the plaintiff in Suit Nos 22–342 of 2006 and 22–348 of 2006.
[6]  The defendant had on 2 August 2005 obtained from the High Court, Penang, a grant of probate to the
estate of the deceased based on a last 'will' of the deceased purportedly made on 2 August 2004 ('will').
The will of the deceased, which was being sought to be impugned in this action, named the defendant as
trustee and executor of the will and effectively made the defendant the sole beneficiary of all of the estate
of the deceased including the ½ undivided share in Lot 763.

51
[7]  The defendant had also on 5 April 2005 registered in the defendant's favour the 1/2 undivided share in
Lot 763 by using a Borang  14A (memorandum of transfer under the National Land Code 1965) ('MOT')
allegedly executed by the deceased as 'transferor' also on 2 August 2004, gifting the 1/2 undivided share
in Lot 763 to the defendant for the declared consideration stated therein, of 'love and affection' ('sebagai
balasan kasih sayang').
[2012] 2 MLJ 691 at 697
[8]  Generally stated, the plaintiffs in this action contended that:
 (a)the will allegedly made by the deceased; and
 (b)the MOT allegedly executed by the deceased both on 2 August 2004,
had been so made or executed at a time when the deceased was not of sound mind and/or when deceased
could not exercise his free will with full understanding as to the nature and implications of the will and/or
the MOT.
[9]  Following from the above it was the plaintiffs' position that the deceased had therefore died intestate
and consequently all assets belonging to the deceased at the time of his death should devolve to both the
plaintiffs as the only surviving natural siblings of the deceased.
THE PLAINTIFFS' CASE IN SUMMARY
[10]  The plaintiffs' case was that in so far as the will was concerned, the deceased did not on 2 August
2004 posses the necessary testamentary capacity, specifically mental capacity, to make the will and/or
that there was no due execution of the will and/or that the alleged making of the will was surrounded by
suspicious circumstances. Accordingly the will ought to be held to be invalid and be struck down by the
court and the grant of probate issued to the defendant should be recalled and revoked, it was contended.
[11]  The plaintiffs in so far as the MOT was concerned, maintained that the MOT was a 'void or
insufficient instrument' to effect the so called transfer for the same reason that the deceased lacked
sufficient mental capacity to execute the same on 2 August 2004 and/or for the further reason that the
deceased was coerced and/or unduly influenced by the defendant to execute the MOT, since at that
material time the defendant had exercised dominion over the will of the deceased.
It was also pointed out that with the existence of the alleged will giving the defendant all of the deceased's
assets there was, in the first place, no need for an MOT to be separately executed by the deceased. The
defendant's actions in securing the MOT, it was argued, was clearly therefore in furtherance of the
defendant's fraudulent and/or deceptive intent to lay his hands on the deceased's 1/2 undivided share in
Lot 763, to the exclusion of the plaintiffs.
THE DEFENDANT'S CASE IN SUMMARY
[12]  The defendant's response was that the deceased on 2 August 2004 satisfied all the testamentary-
capacity requirements or tests to make the will and it was duly made before an advocate and solicitor who
had read out the[2012] 2 MLJ 691 at 698contents of the will to the deceased. The grant of probate had
also since been issued by the court to the defendant after it was duly proved.
[13]  Similarly the transfer using the MOT had been registered and thereby the defendant held an
indefeasible title over the 1/2 shares in Lot 763. The defendant also maintained that the plaintiffs'
allegation of 'fraud' as a ground to set aside or defeat the indefeasibility of defendant's title over that
interest, should be rejected outright because no particulars had been pleaded by the plaintiffs of any such
acts of 'fraud' and nor was any proven at the trial to vitiate the transfer.
52
[14]  It was also argued for the defendant that the medical condition of the deceased about early August
2004 on evidence, if at all relevant, was not 'cancer' as was pleaded by the plaintiffs to be the sole
'disability' affecting the mental capacity of the deceased to make the will or execute the MOT on 2 August
2004
LAW AND BURDEN OF PROOF
[15]  The principles of law that have been recognised and applied where similar issues have arisen as here
in this action, including on the issue of where the respective burden of proof lay, could be gleaned,
particularly, from the following authorities:
Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 (CA) (approved by the
Federal Court in Gan Yook Chin (p) v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1); Tho Yow
Pew & Anor  v Chua Kooi Hean [2002] 4 MLJ 97 (CA); Chock Yook Kwai v Chock Yook Chong &
Ors [2002] 8 CLJ 161; Khaw Cheng Bok v Khaw Cheng Poon & Ors [1998] 3 MLJ 457 (subsequently
affirmed by Court of Appeal in Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another
appeal [2005] 6 MLJ 540); Eu Boon Yeap & Ors v Ewee Kean Hoe [2008] 2 MLJ 869.
In a nutshell the guiding principles in this area of law that could be distilled from the said decisions (as
also from various other cases considered in them) could be summarised as follows:
 (a)where the validity of a will is challenged, the testamentary capacity of the testator must be first
established;
 (b)the burden of proving:
o (i)testamentary capacity, and
o (ii)due execution was on the propounder of the will, as was also the burden of
[2012] 2 MLJ 691 at 699
o (iii)dispelling any suspicious circumstances that surrounded the making of the will.
 (c)there must be evidence that the contents of the will had been read over to the deceased and the
deceased understood the dispositions being made;
 (d)the onus then shifted to the party challenging the validity of the will to establish to the
satisfaction of the court on relevant and cogent evidence the existence of any vitiating
circumstances;
 (e)mere suspicions or conjectures are not ordinarily sufficient to dispense the validity of the
signature or the contents of the will;
 (f)the court will not concern itself with the fairness of the disposition in the will once satisfied that
the testator understood the dispositions being made and the will in question was duly executed;
 (g)whether the execution of the impugned will was a result of 'testamentary incapacity' (ie not of
good health, sound mind, memory and understanding) was a specific finding of fact to be made on
the totality of the evidence led before the court;
 (h)the burden of the proof often shifts about in the process of the cause according to the successive
steps of the inquiry, before leading to the decisive inferences to be made — (Waring &
Waring (1848) 13 ER 715 at p 720 — applied with approval by Court of Appeal in Lee Ing Ching

53
 @ Lee Teck Seng and in Eu Boon Yeap & Ors). The propounder of the will still had the ultimate
burden of dispelling any suspicious circumstances that may have surrounded the making of the
will;
 (i)the elements or ingredients to be established on evidence to successfully uphold the
consideration of 'natural love and affection' as valid, included evidence of some spontaneous
happening in the normal course of a relationship predicated by birth (natural) or a fondness or
affection of mind (love) together with a measure of personal attachment or feeling for the other;
 (j)a duly executed MOT could still be invalidated and any transfer thereby registered could be set
aside under s 340(2)(b) of the National Land Code 1965 as having been obtained through a 'void
or insufficient instrument', where it can on facts be shown that there was not exuberated any
'natural love and affection' as between the transferor and the transferee;
 (k)the jurisdiction of the court to grant relief on an allegation that there was indeed 'undue
influence' exerted, is as wide and as flexible as the exigency of the case demand. The court could
hold that there was undue influence even without direct proof of any dominance over the will of a
party to a transaction, as was judiciously postulated by Jeffrey Tan J (as he then was) in Khaw
Cheng Bok in the following extract:
[2012] 2 MLJ 691 at 700
… Where one party in a transaction is in a position to exert undue influence or 'dominion' over the other
and takes any benefit from him, the burden of proving good faith of the transaction is thrown upon the
dominant party … the law presumes everything against the transaction and the onus is cast upon the
person holding the position of confidence or trust to show that the transaction is perfectly fair and
reasonable, that no advantage has been taken of his position …
 (l)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 go to the
root of the validity of any document before the court. This was noted by Jeffrey Tan J (as he then
was) in Khaw Cheng Bok (at p 579 after quoting several English decisions) in the following terms:
Nevertheless in many cases in which the court has not been satisfied that there was undue influence, and
even in cases where undue influence has been positively disproved, the court has pronounced against the
will propounded because the circumstances have excited its suspicious and vigilance, and it (the court)
has not been satisfied as to the righteousness of the transaction.
EVIDENCEWitnesses
[16]  Both the plaintiffs testified.
The plaintiffs also called four other witnesses, all of whom were medical doctors who attended to the
deceased at the Penang Adventist Hospital when the deceased was admitted there between 9 August 2004
and 25 August 2004 (17 days) for medical attention.
PW1, Dr Loo Yook Chon was a consultant physician and the primary care doctor of the deceased at the
hospital. PW2, Dr PE Samuel Easaw was a consultant neurologist and PW3, Dr Prem Kumar
Chandrasekaran the consultant neuropsychiatrist,
The deceased after his first period of hospitalisation (9 August 2004–25 August 2004) had visited PW3
(consultant neuropsychiatrist) on several occasions for follow-up consultation up to 6 October 2004.
54
According to the medical records of these witnesses the deceased was readmitted to the same hospital on
24 December 2004 and he was diagnosed with gastronomic cancer with gastric outlet obstruction (signet
ring adenocarcinoma of stomach, at least stage III). The deceased was operated on 27 January 2005 but
his condition worsened and he passed away on 5 February 2005.
[2012] 2 MLJ 691 at 701
PW4, Dr Balavendran Anthony (a specialist in palliative medicine) however did not personally attend to
the deceased at any time and submitted essentially a report which was a 'review' of the medical reports
submitted by PW1, PW2 and PW3. In that respects PW4's evidence was only relevant to a limited extent
as to the state of health of the deceased.
[17]  The defendant called Mr Lee Kheng Hong ('DW1') the advocate and solicitor whose testimony was
that he prepared the deceased's will and had read the contents to the deceased. He was one of the two
witnesses to the affixing of the deceased's thumbprint to the deceased will on 2 August 2004.
DW1 also testified that he attested to the affixing of the deceased's thumbprint to the MOT which was
done on the same day, namely 2 August 2004.
The defendant and his mother ('DW3') were the other witnesses for the defence case.
ASSESSMENT/EVALUATION OF EVIDENCE
[18]  The key questions for determination in this proceeding were:
 (a)what was the deceased's state of mind (testamentary mental capacity) on 2 August 2004; and
 (b)whether there were suspicious circumstances in the making of the will and/or the execution of
the MOT by the deceased on 2 August 2004, and if there were such circumstances, whether they
had been dispelled.
The state of the deceased mind on 2 August 2004, that is, the point of time when the will was made
and/or MOT executed
[19]  In my assessment only the evidence of the disinterested witnesses namely, PW1, PW2, PW3 and of
DW1 were material to answering this question.
It was true that PW1, PW2 and PW3 did not examine the deceased on 2 August 2004. These medical
witnesses had however examined the deceased between the 9 August 2004 and 11 August 2004, just
about a week after the 2 August 2004. Their testimony as to specially the mental state of the deceased
when they examined him, their diagnosis of the particular medical condition of the deceased and the
extent and nature of the illness suffered by the deceased, was in my view, very pertinent and relevant to
the issue at hand, notwithstanding the fact that these specialists had not seen or examined the deceased on
2 August 2004.
I could not agree with the submission of counsel for the defendant that such evidence should not be
considered at all as it did not advert to the state of mind or capacity of the deceased on 2 August 2004.
While it is true that in Lee Ing[2012] 2 MLJ 691 at 702Chin @ Lee Teck Seng & Ors , the Court of
Appeal per Gopal Sri Ram JCA had occasion to note 'The relevant and material point of time at which the
mental capacity of the deceased falls to be determined is the time at which the will was made and not at
some earlier or later point', I do not consider this as barring the court absolutely from entertaining or
considering evidence, medical or otherwise, which would enable the court to have a complete picture of
the state of mind of an individual whose act, so important as the making of a will, was being challenged
for being made without sufficient mental capacity. There is no justifiable ground in the larger interest of
55
justice for such evidence, if it is sufficiently proximate in time (before or after), or is in respect of an
illness whose onset might not be immediate and sudden, to be excluded merely because the medical
examination was not carried out on the same day the act was allegedly done.
One could have been suffering from a lingering or malignant and progressively aggravating illness which
definitely could have had effect on the mental state or the free and unaffected expression of one's will and
evidence in this respect cannot be ruled to be irrelevant and barred from consideration by the court.
[20]  Materially therefore from the evidence in court, the following need to be highlighted:
 (a)PW1 had noted that upon admission on 9 August 2004, deceased was restless and confused
mentally.
 (b)PW2's upon examination of the deceased on 11 August 2004 found that the cognitive faculties
of the deceased was impaired, the deceased had inability to speak fluently, to bring out words in
sentences to express himself fully (expressive dysphasia). His blood test showed
a strongly positive VDRL reading.The deceased was diagnosed to have meningovascular Syphilis
(Neurosyphilis). Although he responded to treatment — there was still some irrational speech.
 (c)PW3 (consultant neuropsychiatrist) had examined the deceased on 10 August 2004 and had
noted in his report ('P3') that the deceased 'was perplexed, had conduction aphasia, visual agnosia,
incoherent but able to obey commands and seemed to be delirious'.The deceased's high VDRL titre
pointed towards 'Chronic Organic Brain Syndrome' and in his testimony PW3 further stated that
the neurosyphilis that the deceased was afflicted with had attacked the deceased's brain and
nervous system and that was the cause of the 'delirium' suffered by the deceased. PW3 also
testified that the deceased had to be restrained in the ward some times. The deceased suffered from
what was termed as 'sun downing syndrome' which made the deceased fearful and have delusions
between the 3pm and 8pm usually. This was related to brain damage — caused by syphilis. PW3
from his notes also[2012] 2 MLJ 691 at 703testified that the nephew of the deceased (the
defendant) had related to PW3 an episode where the deceased had told the nephew — that the
deceased had read somewhere that the deceased had died or that the deceased had killed
himself.This witness — PW3 — also testified that the high VDRL titre would indicate
'chronic' meaning suffering for some time — although the witness could not put a time frame
within when the deceased would have contracted syphilis.However for the VDRL levels (titre) to
be so high, the deceased's affliction should have been there for some time, he testified.
 (d)PW4's review and evidence in my assessment, if at all relevant, was only to the effect that the
terminology 'chronic' in a diagnosis indicated a 'progressive' condition and in this case an ongoing
brain damage caused by nuerosyphilis as diagnosed by PW2 and PW3.
[21]  On the other hand, DW1 — the advocate and solicitor who prepared the will for the deceased on 2
August 2004 and who was one of the witnesses to the will testified that the contents of the will was read
and explained by him to the deceased and the deceased seemed thoroughly to understand the same. Upon
being cross-examined DW1 could not remember how much time the deceased was in his (DW1's) office
and neither whether the deceased did speak much or hardly at all.
The taking of instructions and execution of the will by the deceased, seemed to me as highlighted by
counsel for plaintiff, to have been hurriedly done as well, since certain corrections made necessary by
spelling errors of the deceased's name was done merely by deletion and a type-over rather than a fresh
copy being produced (by word processing/computer which would have been more expedient) or which
should have been availed of in the circumstances; the original copy was a computer printout in any case.
56
[22]  I have some difficulty in uncritically accepting DW1 evidence — as an independent witness (as
opposed to the defendant) as to the mental state of the deceased on 2 August 2004 when the will is
purported to have been made before him. DW1 to me did not impress me as a forthright witness. He
displayed selective memory and was evasive on crucial questions put to him.
It would have been of assistance to the court if the other witness to the will (Cheah Chin Im) had also
been called by the defence to be examined on this crucial fact towards ascertaining the mental capacity of
the deceased at the time of making the will (or for that matter to dispel the other suspicious circumstances
surrounding the making of the will or the execution of the MOT as will emerge shortly).
[2012] 2 MLJ 691 at 704
[23]  In the absence of any satisfactory proof by the defendant that the deceased had full and unimpaired
mental capacity on 2 August 2004, (save DW1's testimony which was ambivalent, as I have noted above),
I was more persuaded to hold that the medical reports and the testimony of the three medical consultants
who attended to the deceased albeit, on or about the 9 August 2004 to 11 August 2004, that the deceased
suffered from 'Chronic Organic Brain Syndrome' caused by meningovascular syphilis (neurosyphilis),
tilted more towards the fact that the deceased, on a balance of probabilities, would have been suffering
from those conditions namely, confusion, delusion and cognitive impairment, for some time even prior to
the deceased's said treatment and hospitalisation at Penang Adventist Hospital from 9 August 2004 to 25
August 2004.
The medical condition of the deceased detected some one week later was of an illness of such severity
and of a chronic nature that in all probability, that condition was prevalent and had impaired the deceased
mental faculty even on 2 August 2004.
This was a finding of fact that I had come to on the evidence before me.
[24]  As noted from the principles of law above, the burden was on the defendant as propounder of the
will to establish on cogent and acceptable evidence that the testator (deceased in this case) had full and
sufficient testamentary capacity when making the will. DW1 merely stating in testimony that the contents
of the will had been read over and the testator 'seemed' to understand the same, was not sufficient to
discharge that onus, particularly in the light of consistent evidence of three medical witnesses that the
mental condition of the deceased as diagnosed on 9 August 2010 was neurosyphilis which had affected
the brain and nerves of the deceased. PW3's testimony was that this was a 'chronic' condition — in that it
was not an 'acute' or of sudden onset but could have progressed to that state over time.
The defence failed to call any evidence to dispute the seriousness of the deceased's affliction as stated in
the medical reports of PW1, PW2 and PW3 and its implication or impact on the mental capacity or
condition of the deceased pre-9 August 2008. The defence chose to rely purely on DW1's testimony (see
counsel for the defendant's closing oral submissions). The defence should have challenged the diagnosis
of the consultants PW1, PW2 and PW3 that the deceased suffered from a chronic disease that affected the
brain but failed to call any independent medical evidence to show that the condition of deceased detected
a week later would have had no bearing on the state of the deceased's mind on 2 August 2004.
[2012] 2 MLJ 691 at 705The suspicious circumstances surrounding the due execution of the
deceased's will and/or the MOT and whether such doubts surrounding the same had been dispelled by
the defendant, on whom the burden lay to do so
[25]  Those suspicious circumstances and questions surrounding the context of the making of the will
and/or the execution of the MOT or in respect of the plaintiff's allegation of 'undue influence' or

57
'dominion' by the defendant over the will of the deceased, as have emerged from the evidence before me,
could be enumerated as follows:
 (a)Why was it necessary to have both a will and/or MOT in respect of the most valuable asset of
the deceased (the 1/2 undivided shares in Lot 763) at the same time? Would not, the deceased's
will have been sufficient to meet the deceased's intention effectively, if that was the case?DW1
stated this was done on the 'instruction' of the deceased, persumably, according to DW1, to double
safeguard the deceased's intention;
 (b)Why was the 'thumbprint of the deceased affixed to the will and the MOT, when the deceased
was shown to be able to sign his name in English characters (P7, p 22 CABD — jilid 1)? Was it
because the deceased was too ill or not in a proper mental condition to sign his name in full?
DW1's testimony was that the deceased asked to execute the documents by affixing of the
'thumbprint'. I am of the view that DW1 should have enquired whether deceased could execute by
way of a signature rather than merely allowing the affixing on thumbprint;
 (c)The thumbprint of the deceased on both the will and MOT were placed 'sideways' not in the
upright manner as is usually done.
 (d)In respect of the instructions for and the preparation of the will and the MOT, it was DW1's
evidence that he took instruction and prepared the will at the firm of Messrs Tan Chia Meng,
where he was still a partner on 2 August 2004. As noted above, DW1 was evasive ('could not
remember') as to the level of conversation he had with the deceased. The will, as also noted above,
appear to have been 'hurriedly' completed for the thumbprint of the deceased to be affixed.
 (e)As regard the MOT, DW1 admitted that this instrument was prepared at another firm of
solicitors and the execution was originally intended to be attested by one Phee Boon Leong, an
advocate and solicitor with that firm. DW1 also stated he had intended to join Phee Boon Leong as
a partner in September 2004. The MOT, it was testified was brought over to DW1's firm to be
executed by the deceased and be attested by DW1 at the same time of the making of the will. Why
was no fresh MOT prepared in the circumstances at DW1's firm (on 2 August 2004) but the[2012]
2 MLJ 691 at 706earlier one prepared for attestation by Phee Boon Leong retained and the
'attestors' name changed by mere deletion and substitution?
 (f)It was DW1 evidence that the defendant paid the 'legal fees' for the preparation of the will and
execution of the MOT. The defendant however in evidence, given subsequently,denied this most
vehemently. DW1 positively asserted that the legal fees were paid to Messrs Tan Chia Ming and
receipts issued to the defendant.This contradictory evidence as between DW1 and the defendant
was left open and the defence failed to adduce any evidence to show what indeed was the true
situation in that respects. Further evidence by way of clarification was certainly within the power
of the defence to call to allay whatever doubts that had emerged. The defendant by his denial
appeared to want to explicate himself from his role in the making of the will or the execution of
the MOT by the deceased before DW1;
 (g)There were alterations or correction obvious on the body of the will which had not been
countersigned by the deceased (or, rather by deceased's further thumbprints). It is normal in legal
practice to have any corrections or amendments to important documents, like a will to be initialed
by relevant parties involved (I do not think it is necessary to make any ruling as to applicability
of s 15 of the Wills Act 1959 in the circumstances as what is being highlighted is the suspicious

58
 features surrounding the making of the will; the grounds relied on by the plaintiffs to invalidate the
will are more substantive in nature than this limited procedural point in any event).
 (h)DW1 upon being cross-examined stated that he 'could not remember' whether the defendant
was present personally at DW1's office when the affixing of the thumbprints to the will and the
MOT took place on 2 August 2004. The defendant strenuously denied that he was present at DW1
office.The defendant however admitted that he drove the deceased to the building where DW1's
office was situated on the day the will was made/MOT executed. Upon being questioned how the
defendant's identity card number could be available for insertion in the will and MOT, the
defendant's explanation was that the deceased had requested for it and he had given him the said
identity card number.
 (i)The other possible disinterested witness to the events of the 2 August 2004 was the second
witness to the deceased's will. But this witness was not called to give evidence to put at rest the
many doubts surrounding the affixing of the thumbprint and the contradictory testimony between
that of DW1 and the defendant.
 (j)Coming then to the MOT, DW1's evidence was that the deceased (as transferor) executed it
before him on 2 August 2004. It was also DW1's[2012] 2 MLJ 691 at 707evidence that the
transferee, the defendant, however only executed the MOT before him some four months later on
22 December 2004 as dated on the MOT. As would be noted, this followed a similar pattern, that
is after the name of Phee Boon Leong, the originally intended attestor's name was deleted and
substituted with DW1's name. DW1 was already a partner in the same firm as Phee Boon Leong in
December 2004.This execution by the defendant appeared to coincide with the second admission
of the deceased in hospital in December 2004 from which the deceased never recovered and
finally succumbed to his illness.The MOT was only presented for adjudication of stamp duty
payable on 19 January 2005, stamped on 28 March 2005 and presented for registration on 25 April
2005. The deceased had passed away on 5 March 2005.The defendant's explanation for this rather
convoluted and delayed action on the MOT claimed to have been executed by deceased on 2
August 2004, was that the defendant did not have the funds for purposes of stamping and that he
was compelled to charge the 1/2 undivided share to raise funds to settle stamp duty as well as
medical and funeral expenses of the deceased.
 (k)There was no evidence that the defendant had some definite income or means of living. In fact
the evidence was that the defendant rented a room from a friend and it was there that the deceased
was housed with him (the defendant) between the time of the deceased's discharge from hospital
on 25 August 2004 and deceased subsequent admission to hospital in December 2004.It cannot
escape attention that the plaintiffs (PW5 and PW6) testified that the deceased had been kept away,
incommunicado from them, as well as from the normal place of residence of the deceased in
Kulim during that period between August 2004 to December 2004 by the defendant.
 (l)Simultaneously with the subsequent registration of transfer of the deceased's 1/2 share in Lot
763 on 25 April 2005,(ie after the deceased's death) to the defendant's name, the defendant's
interest in the property was charged to a finance company for a declared loan of RM200,000.
However this loan was not serviced promptly and upon being foreclosed by the finance company,
the total amount owing to the finance company, admittedly had increased to an amount in excess
of RM900,000.The defendant was vague about how the debt had snowballed to such a large
sum.This raised genuine and valid suspicion as to whether all these moves were manipulated and
arranged by the defendant for his benefit, although he denied the same.
59
  (m)the  prior relationship or contacts between DW1 and the defendant came into[2012] 2 MLJ
691 at 708focus in the cross-examination of DW1. DW1 admitted that he knew defendant
previously and the Defendant had visited DW1 in his office before. DW1 was evasive, in my
assessment, as to why and the nature of their relationship or grounds of the prior contacts. A
reasonable inference was that the deceased (who had lived in Kulim all this while) was introduced
to DW1 by the defendant; and
 (n)it was also admitted by that the defendant that prior to 8 August 2004, the deceased had lived
all by himself in Kulim (as confirmed by PW5, PW6 and even DW3) and the deceased only lived
with defendant between the August (after the first hospitalisation) and December 2004 (when
deceased was readmitted). Circumstances to the existence of 'natural love and affection' before 2
August 2004 (date of execution will and MOT) between the deceased and the defendant were
therefore wholly absent and, if at all there were any such circumstances, it was seriously suspect.
[26]  Viewing the suspicious circumstances surrounding the making of the will and/or the execution of the
MOT as enumerated above as a whole, there were many unexplained doubts surrounding the matter.
More significantly there also arose from the facts, in my mind, a perfectly possible scenario that the will
and/or the MOT was not executed indeed by the deceased on 2 August 2004 as date marked, but only
made/executed sometime after the medical condition of the deceased was obviously untenable, possibly
in or after September 2004 (after DW1 had joined Mr Phee Boon Leong as a partner), and the
making/execution then backdated to 2 August 2004 by arrangement between DW1 and the defendant, to
give it the colour of regularity.
[27]  I have given due consideration to the evidence in its entirety laid before this court for the plaintiffs
and for the defendants respectively, and it is my finding and conclusion that the defence has failed to
discharge the burden on them to allay all doubts and dispel the suspicious circumstances surrounding the
making of the deceased will and/or execution of MOT claimed to be on 2 August 2004.
[28]  Similarly the defendant had failed to displace the plaintiff's case that the defendant had exerted
'undue influence' or 'dominion' over the will and mind of the deceased by any credible independent
evidence. The defendant admitted that he took the deceased to the lawyer's office by the defendant to
make/execute the instruments being challenged, gave the defendant's identity card number and going by
the words of a lawyer, the defendant even paid for all legal charges related to the making/execution of the
will or MOT. The circumstances were not only suspicious but it pointed to one irresistible conclusion in
my mind that the defendant had orchestrated the whole episode to lay his hands on the deceased's assets.
[2012] 2 MLJ 691 at 709
For completeness I must also state that these suspicious circumstances, in my assessment, were not mere
conjectures or surmises by the plaintiffs but were inference of facts that could be drawn and concluded
from facts that had been established on evidence before me.
CONCLUSION
[29]  I was conscious that in assessing the evidence led before the court, I should not confuse
the circumstances surrounding the testamentary capacity of the deceased on 2 August 2004 with those
related to the suspicious circumstances surrounding the making of the will and/or execution of the MOT. I
had therefore dealt with them separately and as distinct heads as set out above in this grounds of decision.
The plaintiffs had raised serious issues as to the testamentary capacity, specifically the mental state of the
deceased on 2 August 2004 when the impugned will and/or the MOT was claimed to have been
made/executed. The defendant had failed to discharge the burden on him to establish on evidence that the
60
deceased was possessed of full testamentary capacity to make the will or had executed the MOT by
deceased freely and in a stable mental state on 2 August 2004.
The defendant had also failed on satisfactory evidence to allay the doubts arising from or to dispel the
suspicious circumstances surrounding the making of the will and/or execution of the MOT, as was by
incumbent upon the defendant to do as required by the time honoured authorities and principles of law
applicable in this area of law.
[30]  It was also my conclusion that it did not matter that the cause of testamentary incapacity or the
affliction suffered by the deceased at the time of the making of the will and execution of the MOT, was
named or pleaded to be 'cancer' (or 'carcinoma') but the evidence of the PW1, PW2 and PW3 was
something else — namely 'Chronic Organic Brain Syndrome' caused by meningovascular syphilis (or
neurosyphilis). The basic question before this court was whether the deceased had the necessary mental
capacity to make the will and divest his property as he purportedly was claimed to have done and whether
it was done freely in accordance with the deceased's own conscious will, devoid of any undue influence
or pressure from others.
[31]  I also hold that the pleadings filed by the plaintiffs did set out sufficient and definite particulars as to
the case that the defence had to meet in this challenge as to the validity of the will and the MOT. The
defendant's contention that no particulars were pleaded on this score was without merit.
[32]  The defendant raised the issue of proceedings under reference of[2012] 2 MLJ 691 at 710OS-24–
1733–2055 between the same parties but this proceedings was in respect of the caveat entered by or for
the plaintiffs against the deceased's 1/2 undivided shares in Lot 763 and its preservation or consequential
orders related to that matter. Those proceedings in that context had no bearing to the action at hand here
which was the substantive action to determine the validity of the will and/or the MOT under which the
defendant had proceeded to obtain the grant of probate to the deceased's estate to be issued to the
defendant and/or the transfer of the 1/2 undivided shares in Lot 763 into the defendant's name.
[33]  Harping on those proceedings, Originating Summons 24–1733–2055, or maintaining that the grant
of probate had since been issued to the defendant and/or that the defendant's 1/2 undivided share in Lot
763 was now indeafeasible having been successfully registered under the NLC into the defendant's name,
was to me a totally misconceived approach showing a misapprehension by the defence of the significant
issues that was up for determination, in these suits by the plaintiffs. The defendant should have adduced
evidence to effectively meet the plaintiffs' challenge and not merely rely on the testimony of DW1.
[34]  This court takes note that the 1/2 undivided shares in Lot 763 transferred to the defendant and
charged by defendant in turn to a finance company has since institution of this proceeding, been auctioned
off pursuant to an order for sale obtained by the finance company in a foreclosure proceeding. The excess
of proceeds after settling the amount owed by the defendant to the finance company has since been
ordered to be retained in court pending further orders to be made in that separate proceeding.
[35]  In the upshot, it was my conclusion and finding that the plaintiffs had succeeded in their case against
the defendant to invalidate both the deceased's will made on 2 August 2004, and also, for whatever cause
it may still be relevant, to also invalidate the MOT executed by the deceased in respect of the gift of the
deceased 1/2 undivided share in Lot 763 purportedly in favour of the defendant.
It followed therefore that the plaintiffs were entitled to the following declaration and orders which I
proceeded to make:
 (a)It is declared that the document dated 2 August 2004 and claimed to be the last will and
testament of Choo Peng Hoi @ Choo Peng Jen (deceased) is invalid and of no effect in law.
61
  (b)It is declared that the grant of probate issued on 2 August 2005 to the defendant under
proceedings Mahkamah Tinggi Pulau Pinang, Petisyen No 32–168 of 2005 in respect of the estate
of the Choo Peng Hoi @ Choo Peng Jen (deceased) be and is hereby recalled and revoked and
to[2012] 2 MLJ 691 at 711this end the defendant is directed to forthwith surrender the sealed copy
the grant of probate issued to the defendant to the court.
 (c)It is declared that the said Choo Peng Hoi @ Choo Peng Jen (deceased) died intestate on 5
February 2005.
 (d)It is declared that the MOT (Borang 14A) claimed to have been executed by Choo Peng Hoi
@ Choo Peng Jen (deceased) as transferor on 2 August 2004 for purposes of transferring to the
defendant, the 1/2 undivided share in Lot No 763, Mukim Padang China, Daerah Kulim, Negeri
Kedah for the consideration of 'love and affection', is a void instrument.
 (e)It is declared that the transfer of the 1/2 undivided share in Lot No 763, Mukim Padang China,
Daerah Kulim, Negeri Kedah registered on 5 April 2005 in favour of the defendant is invalid and
of no effect in law and the said 1/2 undivided share in Lot No 763 remained an asset in the estate
of Choo Peng Hoi @ Choo Peng Jen (deceased) at all times.
 (f)It is ordered that the defendant pay damages to the estate of Choo Peng Hoi @ Choo Peng Jen
(deceased) for all losses caused by or arising from the wrongful transfer of the 1/2 undivided
shares in Lot No 763, Mukim Padang China, Daerah Kulim, Negeri Kedah to the defendant and
the senior assistant registrar is directed to assess all such damages payable by the defendant.
 (g)It is ordered that the defendant render full accounts in respect of the affairs and matters related
to the estate of Choo Peng Hoi @ Choo Peng Jen (deceased) conducted by the defendant
purportedly under or pursuant to the grant of probate issued to the defendant on 2 May 2005
(which grant of probate has now been revoked) and such accounts and all remaining assets and
funds belonging to the estate of Choo Peng Hoi @ Choo Peng Jen (deceased) be turned over to
the administrators of the estate of Choo Peng Hoi @ Choo Peng Jen (deceased) within fourteen
days of demand for the same by the said administrators after such administrators of the estate
of Choo Peng Hoi @ Choo Peng Jen (deceased) has been appointed by court.
 (h)It is ordered that the defendant pay damages to the estate of Choo Peng Hoi @ Choo Peng Jen
(deceased) for all losses caused to or suffered by the said estate and such damages are directed to
be assessed by the senior assistant registrar of this court.
 (i)It is ordered that the defendant pay interest on such damages assessed and payable by the
defendant to the estate of Choo Peng Hoi @ Choo Pen Jen (deceased) pursuant to the Orders 6
and 8 made by this court as aforesaid, at the rate of 4%pa from the date of this judgment until full
payment.
[2012] 2 MLJ 691 at 712
 (j)It is ordered that both or either of the plaintiffs be at liberty to apply for letters of administration
to be issued to either or both of them in respect of the estate of Choo Peng Hoi @ Choo Peng Jen
(deceased).
 (k)It is ordered that the defendant pay the plaintiffs costs of this action which is now fixed in the
gross sum of RM30,000.
Plaintiffs' claim allowed with costs.
62
 4. Hiroto Watanabe v Law Yen Yen & Anor [2012] 8 MLJ 202
Malayan Law Journal Reports · 20 pages

HIGH COURT (KUALA LUMPUR)

HARMINDAR SINGH JC
CIVIL SUIT NO S-22NCVC-95 OF 2010
9 June 2011

Case Summary

Civil Procedure — Amendment — Statement of claim — Application to re-amend amended

statement of claim — Amendment to be allowed to enable decision of real matter in controversy —
Amendment to plead legal result obtained from material facts already pleaded — Application for
amendment made very late in the proceedings — Whether prejudice caused to defendants

Succession — Will — Validity — Mutual wills — Criteria to prove mutual wills — Husband and
wife making almost identical wills — Wife subsequently executed another will leaving nothing for
husband — Whether wife's subsequent will invalid

The plaintiff, a Japanese national and permanent resident of Malaysia, was the step-father of the
defendants. The defendants were brother and sister. Their mother, the late Madam Chiang ('deceased')
married the plaintiff on 12 March 2002. The deceased died on 21 March 2010. The plaintiff and the
deceased had made almost identical wills dated 14 October 2002 and 15 October 2002 respectively ('2002
wills'). The deceased however executed another will dated 16 February 2007 ('new will') whereby she
bequeathed all her property to the defendants with nothing for the plaintiff. Upon the death of the
deceased, the defendants obtained a grant of probate to administer the estate of the deceased. The plaintiff
subsequently entered a citation in the probate proceedings and filed this action seeking, amongst others,
declarations that the will of the deceased dated 16 February 2007 was invalid, that the mutual wills of
2002 be given effect and that the grant of probate be annulled. The core issue was whether there were
mutual wills entered into by the plaintiff and the deceased. The dispute was confined to two properties,
namely two apartments known as No 76–3 and No 98–1, Seri Duta 1 Condo, Man Gallagher, Taman
Duta, Kuala Lumpur ('the Seri Duta properties'). At the end of the trial, the plaintiff applied to re-amend
his amended statement of claim.

Held:

(1) What is required to prove mutual wills is that: (a) there was a prior agreement by the testators to
make mutual wills intending their agreement to become irrevocable on the death of the first to die;
63
 and (b) the making of the mutual will. It must be established that there was an irrevocable
agreement to distribute the estates in a particular way at the time of the making of the mutual wills
(see para 14).
(2) The fact that the wills were executed at the same time and have the same terms is a relevant
consideration but by no means is conclusive. The agreement may be oral or in writing, be
incorporated in the will or proved by extraneous evidence. What is decisive at the end of the day
is that there was an agreement by the testators for the wills to be irrevocable and to remain
unaltered — a common intention, expectation or desire will not suffice. It may therefore be
insufficient for a husband and wife to merely have corresponding wills or mirror wills as they may
carry no obligation to be irrevocable (see para 15).
(3) The plaintiff and the deceased executed mutual wills. The wills were made at the same time and in
almost exactly the same terms. The deceased was concerned about her future and especially that
of her children. She was concerned that the plaintiff would leave for Japan and her children, the
defendants, would be deprived of any inheritance. The detailed nature of the will and especially
the contents showed that in the event she predeceased the plaintiff, her two children would be
provided for. That was her main concern and that was why she was happy and relieved when the
two wills were signed and executed by the plaintiff. She clearly intended the wills to be
irrevocable. She had also expressly stated to the witnesses to the wills, that there was a promise by
both to never change the wills. There was an agreement between the plaintiff and the deceased
that the terms of the wills would be irrevocable (see paras 27–28).
(4) Whatever may have been the reason for the transfer of the half share in the Seri Duta properties,
contemporaneous with the time the plaintiff had agreed to transfer his half share to the deceased,
the deceased went on to execute the new will. The execution of the new will was done without
notice to the plaintiff and certainly without his knowledge and consent. By this act, the deceased
had reneged on her promise to the plaintiff. This was clearly a breach of her agreement (see para
33).
(5) As soon as it appears that the way in which a party has framed his case will not lead to a decision
of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it
can be done without injustice (see para 46).
(6) Although the application for amendment was made very late in the proceedings, it was made bona
fide. There was no ploy in this case to delay proceedings or to seek some unfair advantage. In
essence as well, the character of the suit remains the same. The plaintiff was not introducing new
material facts or a new cause of action but merely pleading the legal result that obtained from the
material facts already pleaded. There was no prejudice to the defendants since the issue being
essentially a legal one, no new witnesses were required and no witnesses needed to be recalled
(see para 49).
(7) The deceased's new will was valid and enforceable except that the executors, who were the
defendants, had to hold the Seri Duta properties on trust for the plaintiff in accordance with the
terms of the 2002 will (see para 51).

Plaintif, seorang warganegara Jepun dan penduduk tetap Malaysia, adalah bapa tiri defendan-defendan.
Defendan-defendan merupakan abang dan adik. Ibu mereka, mendiang Madam Chiang ('si mati')
berkahwin dengan plaintif pada 12 Mac 2002. Si mati meninggal dunia pada 21 Mac 2010. Plaintif dan si

64
mati membuat surat wasiat yang hampir serupa masing-masing bertarikh 14 Oktober 2002 dan 15
Oktober 2002 ('surat wasiat 2002'). Si mati walau bagaimanapun, menandatangani satu lagi surat wasiat
bertarikh 16 Februari 2007 ('surat wasiat baru') di mana dia mewariskan kesemua hartanya kepada
defendan-defendan tanpa apa-apa untuk plaintif. Selepas kematian si mati, defendan-defendan
memperoleh geran probet untuk mentadbir harta pusaka si mati. Plaintif kemudian memasukkan 'citation'
di dalam prosiding probet tersebut dan memfailkan tindakan ini memohon, antara lain, deklarasi bahawa
surat wasiat si mati yang bertarikh 16 Februari 2007 tidak sah, dan surat wasiat 2002 diberi kuasa dan
geran probet dibatalkan. Isu utama adalah sama ada terdapat surat wasiat bersama yang dimasuki oleh
plaintif dan si mati. Pertikaian tersebut terhad kepada dua hartanah, iaitu pangsapuri yang dikenali
sebagai No 76–3 dan No 98–1, Seri Duta 1 Condo, Man Gallagher, Taman Duta, Kuala Lumpur
('hartanah Seri Duta'). Di akhir bicara, plaintif memohon untuk membuat pindaan semula penyata
tuntutan pindaannya.

Diputuskan:

(1) Apa yang diperlukan untuk membuktikan surat wasiat bersama adalah bahawa: (i) terdapat
perjanjian duluan oleh pembuat wasiat untuk membuat surat wasiat bersama meniatkan perjanjian
mereka tidak boleh batal atas kematian salah seorang yang mati dahulu; dan (b) pembuatan surat
wasiat bersama tersebut. Ia mesti dibuktikan bahawa terdapat perjanjian yang tidak boleh batal
untuk membahagikan harta pusaka tersebut dalam cara tertentu pada masa surat wasiat bersama
dibuat (lihat perenggan 14).
(2) Fakta bahawa surat wasiat tersebut ditandatangani pada masa yang sama dan mempunyai terma-
terma yang sama adalah pertimbangan yang relevan tetapi bukan muktamad. Perjanjian tersebut
mungkin dibuat secara lisan atau dalam tulisan, untuk dimasukkan di dalam surat wasiat atau
dibuktikan melalui keterangan luaran. Apa yang muktamad adalah bahawa terdapat perjanjian
oleh pembuat wasiat supaya surat wasiat tidak boleh dibatalkan dan kekal tidak diubah — niat
bersama, harapan atau kehendak tidak mencukupi. Oleh demikian ia mungkin tidak mencukupi
untuk suami dan isteri semata-mata mempunyai surat wasiat yang sama kerana ia mungkin tidak
boleh dibatalkan (lihat perenggan 15).
(3) Plaintif dan si mati menandatangani surat wasiat bersama. Surat-surat wasiat tersebut dibuat pada
masa yang sama dalam terma-terma yang hampir serupa. Si mati risau mengenai masa
hadapannya terutamanya masa hadapan anak-anaknya. Dia tidak risau bahawa plaintif akan balik
ke negara Jepun dan anak-anaknya, defendan-defendan akan dihalang daripada apa-apa wasiat.
Butir terperinci surat wasiat dan khususnya kandungannya menunjukkan bahawa jika dia
meninggal sebelum plaintif, kedua-dua anaknya akan berwasiat. Itu merupakan kerisauan
utamanya dan sebab mengapa dia gembira dan puas hati apabila kedua-dua surat wasiat
ditandatangani dan dimeterai oleh plaintif. Dia jelas meniatkan surat wasiat tersebut tidak boleh
dibatalkan. Dia juga secara jelas menyatakan kepada saksi-saksi surat wasiat, bahawa terdapat
janji oleh kedua-duanya untuk tidak mengubah surat wasiat tersebut. Terdapat perjanjian antara
plaintif dan si mati bahawa terma-terma surat wasiat tidak boleh dibatalkan (lihat perenggan 27–
28).
(4) Apa sahaja sebab pemindahan separuh bahagian dalam hartanah Seri Duta sama dengan masa
plaintif bersetuju memindahkan separuh bahagiannya kepada si mati, si mati masih
menandatangani surat wasiat baru. Penandatanganan surat wasiat baru masih dilakukan tanpa
65
 notis kepada plaintif dan sememangnya tanpa pengetahuan dan persetujuannya. Melalui tindakan
ini, si mati memungkiri janjinya kepada plaintif. Ini adalah jelas kemungkiran perjanjiannya (lihat
perenggan 33).
(5) Sebaik sahaja jelas bahawa cara bagaimana sesuatu pihak membentuk kesnya tidak akan
membawa kepada suatu keputusan mengenai perkara sebenar dalam kontroversi, adalah menjadi
haknya untuk membetulkan jika ia boleh dilakukan tanpa ketidakadilan (lihat perenggan 46).

(6) Walaupun permohonan untuk pindaan dibuat di peringkat yang amat lewat dalam prosiding, ia
dibuat secara bona fide. Tidak ada helah di dalam kes ini untuk melengahkan prosiding atau untuk
mendapatkan kepentingan yang tidak adil. Hakikatnya juga, sifat guaman kekal sama. Plaintif
tidak memperkenalkan fakta material baru atau kausa tindakan baru tetapi semata-mata
memplidkan keputusan undang-undang yang diperoleh daripada fakta material yang telah pun
diplidkan. Tidak ada prejudis kepada defendan-defendan kerana isu sebenarnya adalah dari segi
undang-undang, tiada saksi baru diperlukan dan tidak ada saksi yang perlu dipanggil semula (lihat
perenggan 49). 
(7) Surat wasiat baru si mati adalah sah dan boleh dikuatkusakan kecuali bahawa pentadbir-pentadbir,
yang merupakan defendan-defendan, telah memegang hartanah Seri Duta sebagai amanah untuk
plaintif berikutan terma-terma surat wasiat 2002 (lihat perenggan 51).

Notes

For cases on statement of claim, see 2(1) Mallal's Digest (4th Ed, 2010 Reissue) paras 636–657.

For cases on validity, see 11 Mallal's Digest (4th Ed, 2011 Reissue) paras 2789–2793.
Cases referred to

Birmingham v Renfrew (1936) 57 CLR 666, HC (refd)

Bumiputra-Commerce Bank Bhd & Ors v Bumi Warni Indah Sdn Bhd [2004] 4 CLJ 825, HC (refd)

Charles v Fraser [2010] EWHC 2154 (Ch) (refd)

Cleaver, Re [1981] 2 All ER 1018, Ch D (refd)

Dale, In re [1994] Ch 31 (refd)

Dufour v Pereira (1769) 1 Dick 419 (refd)

66
Goodchild, Re [1997] 3 All ER 63, CA (refd)

Fry v Martin Densham-Smith [2010] EWCA Civ 1410 (refd)

Ghazali Salleh & Anor v PP [1993] 3 CLJ 638, HC (refd)

Gray v Perpetual Trustee Co Ltd [1928] AC 391, PC (refd)

Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230; [1987] CLJ (Rep) 126, SC (refd)

Lord Walpole v Lord Orford (1797) Ves 402 (refd)

Mohd Ali Jaafar v PP [1998] 4 MLJ 210; [1998] 4 CLJ Supp 208, HC (refd)

Ng Yan Pee v PP [1959] 3 MC 249 (refd)

Olins v Walters [2008] EWCA Civ 782, CA (refd)

PP v Chia Yong Hee [1997] 2 CLJ Supp 263, HC (refd)

R v Chen [1993] 2 VR 139 (refd)

Stone v Hoskins [1904–7] All ER Rep Ext 1406 (refd)

Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213, FC (refd)

YB Datuk Dr Soon Choon Teck v YB Datuk Robert Lau Hoi Chew & Ors [2009] 3 MLJ 785; [2010] 7
CLJ 931, CA (refd)

Yoong Leok Kee Corporation Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21, FC (refd)
Legislation referred to

Rules of the High Court 1980O 20 r 5

G Nanda Goban (Goban & Co) for the plaintiff.

Muralee Menon (Melvin Cheah Yong Soon with him) (Jaafar & Menon) for the defendants.
67
 Harmindar Singh JC:

INTRODUCTION

[1] It is not uncommon for husbands and wives to make identical wills, sometimes referred to as
corresponding or mirror wills, containing reciprocal provisions as to the distribution of their estates in the
event of their death. They may wrongly assume that with such wills in place, there is in existence a
mutual promise which each spouse is not entitled to renege or revoke. In other words, they think that what
they have is what the law calls mutual wills. Unless the irrevocability of the mutual promise is inserted in
the wills, disputes will arise as the instant action demonstrates.

[2] Be that as it may, there is however a dearth of litigation in Malaysia or even elsewhere with regards to
mutual wills. The reason for this may be more apparent than it seems. At the time of distribution of the
estate, one party is already dead and the beneficiaries may be none the wiser as to the terms of the wills
which is a travesty in itself. The instant action is however one of those rare cases which have made it to
the courts.

THE PARTIES

[3] Who are the parties to the instant action? The plaintiff, a Japanese national and permanent resident of
Malaysia, is the step-father of the first and second defendants. The first and second defendants are brother
and sister. Their mother, the late Madam Chiang Yoon Mooi ('deceased') married the plaintiff on 12
March 2002. Prior to this, the deceased was married to one Law Yoke Kiong. That earlier marriage ended
in divorce on 16 August 2000. The defendants were the product of that failed marriage. The deceased
however succumbed to an illness and died on 21 March 2010.

THE DISPUTE

[4] What is the nature of the dispute? It is essentially a family quarrel over property. The dispute arose
after the death of the deceased. The plaintiff and the deceased had made almost identical wills dated 14
October 2002 and 15 October 2002 respectively ('2002 wills'). The deceased however executed another
will dated 16 February 2007 ('new will') whereby she bequeathed all her property to the defendants with
nothing for the plaintiff.

[5] Upon the death of the deceased, the defendants obtained on 11 May 2010 a grant of probate to
administer the estate of the deceased vide Probate Petition No S-32–308 of 2010. The plaintiff
68
subsequently entered a citation in the probate proceedings to prevent the defendants from administering
the estate of the deceased. The plaintiff has now filed this action seeking, amongst others, declarations
that the will of the deceased dated 16 February 2007 is invalid, that the mutual wills of 2002 be given
effect and that the grant of probate be annulled. The defendants have counterclaimed for the citation to be
struck out, for the plaintiff to deliver vacant possession of two properties under the new will and damages
and costs.

THE ISSUES

[6] Arising from the factual matrix in this case, the core issue is whether there were in feet mutual wills
entered into by the plaintiff and the deceased. As far as the instant action is concerned, the dispute is
confined to two properties, namely two apartments known as No 76–3 and No 98–1, Seri Duta 1 Condo,
Man Gallagher, Taman Duta, Kuala Lumpur ('the Seri Duta properties').

THE LEGAL PRINCIPLES

[7] The term 'mutual wills' is used to describe joint or separate wills made as a result of an agreement
between the parties to create irrevocable interests in favour of ascertainable beneficiaries (Theobald on
Wills, (15th Ed), at p 28). Mutual wills have also been described as wills made by two persons, usually in
substantially the same terms and conferring reciprocal benefits, following an agreement between them to
make such wills and not to revoke them without the consent of the other (Mellows: The Law of
Succession, (5th Ed), at p 28).

[8] Now of course there is some conflict in this principle as a will by its very nature and essence is a
revocable instrument. This conflict was explained in Mellows: Law of Succession (at p 28) as follows:
Mutual wills involve a conflict of principle. Wills are mutual wills only if made in pursuance of a
prior agreement not to revoke without the consent of the other. This is a contract and is enforceable.
On the other hand, it is a cardinal principle of the law of wills that a will may always be revoked. The
solution to the conflict which has been evolved is that the will itself may always be revoked, but such
revocation may give rise to an action for breach of contract. Furthermore, it is established that on the
death of the first person to die, a trust arises in favour of the beneficiaries, and if the survivor revokes
his will proceedings may also be taken for breach of trust.

[9] This long-established doctrine of mutual wills stems from the decision of Lord Camden LC in Dufour
v Pereira (1769) 1 Dick 419. The facts of that case were described in the case of In re Dale [1994] Ch 31
as follows. A husband and wife made a joint will pursuant to an agreement between them whereby the
residuary estate of them was to constitute a common fund to be held for the  [*209] survivor for his or her
life with remainders over. On the death of the husband, the wife, who was one of his executors, proved
the will and thereafter took possession of her husband's property and enjoyed the benefit of his residuary
estate. On her death, it was discovered that her last will disregarded the provisions of the joint will and

69
left her estate to her daughter. The plaintiffs, who were the beneficiaries under the joint will, claimed that
the wife's personal estate was held in trust for them.

[10] Lord Camden LC's decision was in the following terms:

Consider how far the mutual will is binding, and whether the accepting of the legacies under it by the
survivor is not a confirmation of it. I am of opinion it is. It might have been revoked by both jointly; it
might have been revoked separately, provided the party intending it, had given notice to the other of
such revocation. But I cannot be of opinion, that either of them, could, during their joint lives, do it
secretly; or that after the death of either, it could be done by the survivor by n another will.

It is a contract between the parties, which cannot be rescinded, but by the consent of both. The first
that dies, carries his part of the contract into execution. Will the court afterwards permit the other to
break the contract? Certainly not.

[11] And he further added (as reflected in Gray v Perpetual Trustee Co Ltd [1928] AC 391):
The law of these countries then must be very defective, and totally destitute of the principles of equity
and good conscience: for nothing can be more barbarous, than a law, which does permit in the very
text of it one man to defraud another. The equity of this court abhors the principle. A mutual will is a
mutual agreement. A mutual will is a revocable act. It may be revoked by joint consent clearly. — By
one only, if he give notice, I can admit. But to affirm, that the survivor (who has deluded his partner
into his will upon the faith and persuasion that he would perform his part) may legally recall his
contract, either secretly during the joint lives, or after at his pleasure; I cannot allow. The mutual will
is in the whole and every part mutually upon condition, that the whole shall be the will. — There is a
reciprocity, that runs through the instrument The property of both is put into a common fund and
every devise is the joint devise of both. This is a contract If not revoked during the joint lives by any
open act, he that dies first dies with the promise of the survivor, that the joint will shall stand. It is too
late afterwards for the survivor to change his mind: because the first to die's will is then irrevocable,
which would otherwise have been differently framed, if that testator had been apprised of this dissent.
Thus is the first testator drawn in and seduced by the fraud of the other, to make a disposition in his
favour, which but for such a false promise he would never have consented to.

It was argued however, that the parties knowing that all testaments were in their nature revocable,
were aware of this consequence, and must therefore be presumed to contract upon this hazard. There
cannot be a more absurd presumption than to suppose two persons, while they are contracting, to give
each a licence to impose upon the other. Though a will is always revocable, and the last must always
be the testator's will; yet a man may so bind his assets by agreement, that his will shall be a trustee for
performance of his agreement A covenant to leave so much to his wife or daughter, etc. Or suppose
he makes his will, and covenants not to revoke it These cases are common; and there is no difference
between promising to make a will in such a form and making his will with a promise not to revoke it
This court does not set aside the will but makes the devisee heir or executor trustee to perform the
contract …

The instrument itself is the evidence of the agreement; and he, that dies first, does by his death carry
the agreement on his part into execution. If the other then refuses, he is guilty of a fraud, can never
unbind himself, and becomes a trustee of course. For no man shall deceive another to his prejudice.
70
 By engaging to do something that is in his power, he is made a trustee for the performance, and
itransmits that trust to those that claim under him. This court is never deceived by the form of
instruments. The actions of men here are stripped of their legal clothing, and appear in their first
naked simplicity. Good faith and conscience are the rules, by which every transaction is judged in this
court; and there is not an instance to be found since the jurisdiction was established, where one man
has ever been released from his engagement, after the other has performed his part.

[12] Lord Camden's pronouncement has been considered and accepted in many cases. It was considered
in Stone v Hoskins [1904–7] All ER Rep Ext 1406, a case much relied upon by the defendants, where Sir
Gorell Barnes P, concluded:
It appears to me that the result is tolerably plain. If these two people had made wills were standing at
the death of the first die, and the survivor had taken a benefit by that death, the view is perfectly well
founded that the survivor cannot depart from the arrangement on his part, because, by the death of the
other day, the will of that party and the arrangement have become irrevocable; but that case is entirely
different from the present, where the first person to die has not stood by the bargain and her 'mutual'
will has in consequence not become irrevocable. The only object of notice is to enable the other party
to the bargain to alter his or her will also, but the survivor in the present case is not in any way
prejudiced. He has notice as from the death. I cannot see that the cases cited support the proposition
for which the defendant contends, with the result that he must, I think, fail to obtain the declaration
which he seeks.

[13] What is highlighted from the cases from Dufour v Pereira onwards is the equitable nature of the
doclrine as it operates from the conscience of the parties to the agreement. I will return to the application
of the equitable principles to this doctrine later in the judgment.

[14] What are the principles underlying this doctrine? What is required to prove mutual wills is that: (a)
there was a prior agreement by the testators to make mutual wills intending their agreement to become
irrevocable on the death of the first to die; and (b) the making of the mutual will (Olins v Walters [2008]
EWCA Civ 782; Charles v Fraser [2010] EWHC 2154 (Ch); Fry v Martin Densham-Smith [2010]
EWCA Civ 1410). Shortly stated, it must be established that there was an irrevocable agreement to
distribute the estates in a particular way at the time of the making of the mutual wills.

[15] So how is this agreement to be proved? The fact that the wills were executed at the same time and
have the same terms is a relevant consideration but by no means is conclusive (Re Cleaver [1981] 2 All
ER 1018). The agreement may be oral or in writing, be incorporated in the will or proved by extraneous
evidence. The agreement must be established by clear and satisfactory evidence on the balance of is
probabilities (Re Goodchild [1997] 3 All ER 63). What is decisive at the end of the day is that there was
an agreement by the testators for the wills to be irrevocable and to remain unaltered — a common
intention, expectation or desire will not suffice (Re Goodchild). It may therefore be insufficient for a
husband and wife to merely have corresponding wills or mirror wills as they may carry no obligation to
be irrevocable.

WERE THE WILLS EXECUTED BY THE PLAINTIFF AND THE DECEASED MUTUAL WINS?
71
[16] Coming back to the instant case and having these principles in mind, did the plaintiff and the
deceased execute mutual wills? Before a resolution can be found to this all-important question, it is
necessary to go back in time and revisit the relationship between the parties and the circumstances which
gave rise to the execution of the 2002 wills. It was sometime in 1985 that the plaintiff first met the
deceased. The deceased was then working as a lounge waitress at the Kangaroo Lounge in Bukit Bintang,
Kuala Lumpur. She was also a single mother forced to support herself and her two young children, the
defendants, as her husband had abandoned the family in 1981. The plaintiff and the deceased grew fond
of each other and fell in love.

[17] In early 1986, the deceased invited the plaintiff to live with her in her rented flat at No 6318 Blueboy
Mansion off Jalan Tong Shin, Kuala Lumpur. She ceased working as a lounge waitress and depended on
the plaintiff to provide for her and her two children, the defendants. At that time, her two children were
living with their grandparents in Bentong, Pahang. The plaintiff then helped her with funds to is purchase
flat No 6217 at Blueboy Mansion in which they later lived together from the latter part of 1986.
Beginning in 1989, the deceased's two children, the defendants, lived with them during the school
holidays.

[18] Subsequently, the deceased wanted to have security in her relationship with the plaintiff. She filed
for divorce from her first husband on the grounds of desertion. The divorce was made absolute on 19
February 2001. She then married the plaintiff on 12 March 2002. The couple then moved into their
matrimonial home at No 76–3 Seri Duta Condominium, Taman Duta Kuala Lumpur. This property was
purchased by the plaintiff for the sum of RM1,037,400 and registered in the joint names of the plaintiff
and the deceased. The deceased also purchased two other properties, namely No 98–1 Seri Duta
Condominium, Taman Duta Kuala Lumpur on 5 March 1992 and an apartment in Cameron Highlands on
6 September 1993.

[19] The plaintiff also helped the deceased to open bank accounts and provided regular deposits for her
benefit. He also bought for her jewelry made of gold, platinum, diamonds, precious stones and expensive
wrist watches. The plaintiff also paid for all the educational expenses of the first and second defendants in
Malaysia and overseas. The first defendant left for tertiary studies in the USA in 1997 and the plaintiff
provided all the money she needed for her tuition and living expenses until 2004. The plaintiff also paid
for all the educational expenses of the second defendant in the USA from July 2002 until May 2005.

[20] Now there was some evidence that the deceased had money of her own and contributed to the
properties acquired and expenses incurred. The defendants testified that the deceased was a restaurant
operator and boutique. She was also alleged to be a part-time broker for property sales as well as a
middleman for jewelry and expensive handbags. In the end, these remained bare oral assertions
unsupported by any other evidence. The plaintiff instead was a director of a Japanese construction firm
before he retired and worked as a consultant for construction projects. I considered that he was the one
with the means, rather than the deceased, to purchase the properties mentioned in the will.

[21] Shortly after the marriage, the deceased expressed her concerns over what might happen to her in the
event of the plaintiff's death overseas or in Japan. Both of them then had serious discussions over the need
72
to have some kind of written agreement regarding the plaintiff's properties as well as the properties in
their joint names in Malaysia. After discussion with various people, the deceased and the plaintiff decided
that a good method would be to make corresponding wills.

[22] To this end, the plaintiff and the deceased discussed the matter with one Ms Lim Siew Mee ('PW1')
with whom they had come to know when PW1 was working as a manager with Ban Hin Lee Bank in
Kuala Lumpur. PW1 had left the bank and was now a certified financial planner and consultant with Ipp
Advisors Sdn Bhd as a professional will writer, for Rockwills. In September 2002, PW1 came over to the
matrimonial home and took instructions over the terms and contents to be included in the corresponding
wills.

[23] On 27 October 2002, upon prior appointment, PW1 came to the matrimonial home with two sets of
wills which she had prepared in accordance with the instructions given by the deceased and the plaintiff.
Also present at the same time were the family friends of the plaintiff and the deceased, one Ms Lim Yoon
Foong ('PW2') and her husband Mr Siang Yam Beng ('PW3'). PW2 and PW3 had been requested earlier
to be present to witness the signing of the wills. Before the signing of the wills, the deceased had declared
to PW2 and PW3 that she and the plaintiff had made an agreement to make similar and corresponding
wills and had promised to each other never to change the contents of their wills until death. The wills
were then signed by the deceased and the plaintiff.

[24] In relation to the Seri Duta properties which are the subject matter of this suit, this is what the
plaintiff and the deceased had declared in the said will. In the deceased's will it was stated in paras 5 and
6:
(i) I give to my husband HIROTO WATANABE Passport No. TZ0045613 my undivided share
in the house known as 98-1 Seri Duta Condominium, Jalan Gallagher, Taman Duta, 50480
Kuala Lumpur. If my husband does not survive me then I give to my daughter LAW YEN
YEN NRIC NO. 790316- 14-5724.
(ii) I give to my husband HIROTO WATANABE Passport No. TZ0045613 my undivided share
in the house known as 76-3 Seri Duta Condominium, Jalan Gallagher, Taman Duta, 50480
Kuala Lumpur. If my husband does not survive me then I give to my son LAW CHOONG
HOE NRIC NO. 820815- 14-5037.

[25] And the same corresponding declaration was made by the plaintiff in his will.

[26] Now coming back to the question that was posed at the outset — did the plaintiff and the deceased
execute mutual wills? — the answer must plainly be in the affirmative. The reasons for this are as
follows.

[27] Firstly, the wills were made at the same time and in almost exactly the same terms. Secondly, and
more importantly, the deceased was concerned about her future and especially that of her children. This
was not disputed. She was concerned that the plaintiff would leave for Japan and her children, the
defendants, would be deprived of any inheritance. The detailed nature of the will and especially the
contents showed that in the event she predeceased the plaintiff, her two children would be provided for.

73
That was her main concern and that was why she was happy and relieved when the two wills were signed
and executed by the plaintiff. She clearly intended the wills to be irrevocable. Thirdly, she had expressly
stated to the witnesses to the wills, PW2 and PW3 that there was a promise by both to never change the
wills. This was also supported by the evidence of the plaintiff.

[28] The deceased's concern about providing for the children was again manifested by the transfer of the
plaintiff's half share in the Seri Duta properties to her which I shall come back to in a moment. I think she
wanted the properties to be transferred to her name as she was concerned about the children. I have
therefore no doubt that there was an agreement between the plaintiff and the deceased that the terms of
the wills would be irrevocable.

[29] To come back to the transfer of the plaintiff's half share of the Seri Duta properties to the deceased, it
appeared that for some reason, the deceased was still not satisfied with the mutual wills. The plaintiff
claims the deceased managed to get him to transfer his half share of the Seri Duta properties to herself to
prove his love and devotion for her as she had questioned his sincerity and commitment to the mutual
wills. The defendants however say that the plaintiff did so as he had withdrawn most of the money from
the joint account in Singapore and it also emerged that he had had sexual relations with their maid. The
plaintiff strenuously denied these allegations.

[30] Some evidence of the plaintiff's sexual indiscretions was sought to be introduced by way of the
maid's statement to the solicitor acting for the deceased as well as another alleged statement of the
plaintiff. These statements were however rejected as evidence as being inadmissible on account of being
hearsay. The maid was not going to be called to give evidence and she had not lodged any police report
The defendants, nevertheless, were quite resourceful. They had evidence of a secret recording of a
conversation between the plaintiff and the deceased in which it was alleged that the plaintiff had admitted
to having sexual relations with the maid. Arguments were raised as to the admissibility of this recording.
The parties relied on the following cases: Public Prosecutor v Chia Yong Hee [1997] 2 CLJ Supp 263;
Ghazali Salleh & Anor v Public Prosecutor [1993] 3 CLJ 638; Mohd Ali Jaafar v Public Prosecutor
[1998] 4 MLJ 210; [1998] 4 CLJ Supp 208 and Ng Yan Pee v Public Prosecutor [1959] 3 MC 249.

[31] In Mohd Ali Jaafar v Public Prosecutor, Augustine Paul J (as he then was) alluded to six matters that
must be established when introducing evidence of a tape recording. He also alluded to the necessity of
taking three further precautionary steps. Whilst I have no quarrel with these matters, with the advent of
digital technology, some of these matters may perhaps have to be modified. It ought to be observed that
Mohd Ali Jaafar v Public Prosecutor and the cases before it dealt with analogue recordings on a magnetic
tape unlike the instant action which involved a digital recording made with a digital recorder. Needless to
say, the technology involved in each case is significantly different. It may be fair to say that analogue
recordings have become almost obsolete. In any event, in R v Chen [1993] 2 VR 139, a case cited with
approval in Mohd Ali Jaafar v Public Prosecutor, the Supreme Court of Victoria held that the
admissibility of tape recordings depends on the circumstances of each case. It was further held (at p 150):
The test is whether there is sufficient material before the court to allow the tribunal of fact acting
reasonably to conclude that the recorded sounds reproduce those originally made by the persons
identified by the evidence. In other words, there must be evidence, which the tribunal of fact is
entitled to accept, that the recording is of a conversation which occurred and which would be
74
 admissible if proved by oral testimony. In our opinion, admissibility does not depend on the party
tendering the tapes having removed absolutely any chance that they are inaccurate.

[32] Having heard the recording and perusing the transcript, I had serious doubts as to whether the
transcript accurately reflected the conversation that took place. This is so because the sound recording
was poor, inaudible at times, broken and for the most part unintelligible. In my view, the recording was
wholly unreliable to prove is anything. For this reason, I considered it unsafe to rely on this evidence and
it was accordingly rejected.

[33] Whatever may have been the reason for the transfer of the half share in the Seri Duta properties,
contemporaneous with the time the plaintiff had agreed to transfer his half share to the deceased, the
deceased went on to execute another will on 16 February 2007 ('new will'). She employed the same
solicitors who had handled the transfer of the half share in the Seri Duta properties to also prepare her
new will with the intention of revoking all earlier wills. Ominously, the execution of the new will was
done without notice to the plaintiff and certainly without his knowledge and consent. By this act, the
deceased had reneged on her promise to the plaintiff. This was clearly a breach of her agreement. Some
would call it a betrayal.

[34] Now the defendants suggest that there had already been revocation of the earlier wills expressly or
by conduct with the effect that the wills were no longer binding on the parties as some of the funds had
been dissipated and some properties sold. They particularly took issue with the fact that that the plaintiff
had transferred his half share of the Seri Duta properties to the deceased.

[35] In my view, I do not see anything sinister in the fact that funds were utilised and some properties
were disposed of. To my mind, there will of course be some dealing with regard to the properties set out
in the wills. Circumstances may change which may warrant utilisation of the properties or moneys. Both
parties may need to use the money. The assets mentioned in the mutual wills may be akin to a floating
trust which crystallizes upon death (see Birmingham v Renfrew (1936) 57 CLR 666 at p 689). In the
event, I do not see how this affects the agreement of the parties that the wills are to remain irrevocable. I
think what is crucial is that neither party acts to the detriment of the other. In transferring the Seri Duta
properties to the deceased, the plaintiff, far from acting to the detriment of the deceased, was actually
acting in her interest. It is curious to suggest that after the plaintiff had acted in the interest of the
deceased, the deceased is now released from her promise.

[36] I have also not overlooked the defendants' contention that in the transfer of the Seri Duta properties,
the plaintiff was also represented by lawyers and that there was no reference at all in the correspondence
to the mutual wills. The plaintiff only alluded to the possibility of divorce. In all fairness, I do not see
how this can be inferred against the plaintiff. He was obviously relying on the irrevocable promise of the
deceased in her 2002 will. He knew that if he outlived the deceased, the properties would still come to
him. He was therefore only concerned with the possible ramifications upon divorce.

[37] In the end, it was not the plaintiff but the deceased who broke the promise. She did so without giving
notice to the plaintiff. I cannot help but agree with the plaintiff's depiction that this whole business was
75
conducted surreptitiously. What is most damming is the fact that the deceased's last will of 2007 talked of
the possibility of the plaintiff transferring his half-share to the deceased. All this left me with the
impression that it was all pre-planned and well-executed. The plan was to get the plaintiff to transfer his
share of the properties and then for the deceased to revoke her will and deprive the plaintiff of his interest
in the properties under the mutual wills.

[38] I think it is trite law, as demonstrated by the cases I had alluded to at the outset, that the promise
made in the mutual wills cannot be lightly disregarded. It has long been established that when one acts on
the faith of an agreement to make mutual wills, equitable obligations will arise to prevent the offending
party from acting unfairly. In this regard, perhaps the most enlightening analysis of the principles
involved in mutual wills was a passage in the judgment of the High Court of Australia in Birmingham v
Renfrew, where Dixon J stated (at p 682):
I think the legal result was a contract between husband and wife. The contract bound him, I think,
during her lifetime not to revoke his will without notice to her. If she died without altering her will,
then he was bound after her death not to revoke his will at all. She on her part afforded the
consideration for his promise by making her will. His obligation not to revoke his will during her life
without notice to her is to be implied. For I think the express promise should be understood as
meaning that if she died leaving her will unrevoked then he would not revoke his. But the agreement
[*217] 
really assumes that neither party will alter his or her will without the knowledge of the other. It has
long been established that a contract between persons to make corresponding wills gives rise to
equitable obligations when one acts on the faith of such an agreement and dies leaving his will
unrevoked so that the other takes property under its dispositions. It operates to impose upon the
survivor an obligation regarded as specifically enforceable. (Emphasis added).

[39] In coming to this view, Dixon J was no doubt influenced by a passage in the paper on the Walpole
case (Lord Walpole v Lord Orford [1797] Ves 402), contained in Hargraves' Juridical Arguments (1799)
as follows:
In these circumstances, there is such a combination, that it seems to me impossible to deny the
existence of compact between the two testators. A mutual pledging is inferable from the beginning to
the end of the transaction; is inferable from the two instruments themselves; is inferable from every
thing preceding and every thing accompanying the actual execution of them. The whole transaction
speaks the language of mutual engagement most emphatically in every part. The evidence of the
engagement is the thing itself. Except on the idea of mutual concession and mutual engagement, the
transaction is unintelligible. Nor is the nature of the compact less apparent Both of the instruments
being equally revocable, it is plain, that the contracting parties did not mean absolutely to exclude
themselves from making new arrangements. Had that been their meaning, instead of mutual wills,
which are in their nature revocable, they would have made mutual irrevocable deeds of settlement.
On the other hand, it is in my opinion as plain, that the two contracting parties did not mean that one
should have more liberty of revocation than the other. Consequently they must have intended, that
during their joint lives neither should revoke secretly and clandestinely; and that after the death of
one without revoking the right of revoking should cease to the other. Upon any other footing, it would
have been a transaction of mutual wills, with a licence to both parties to impose upon each other at
pleasure; and instead of a fair honorable and equal bargain, it would have been one of a kind the most
hollow deceptive and ensnaring. (Emphasis added.)

76
[40] And Dixon J came to the conclusion that equity implied a trust:
But I do not see any difficulty in modern equity in attaching to the assets a constructive trust which
allowed the survivor to enjoy the property subject to a fiduciary duty which, so to speak, crystallized
on his death and disabled him only from voluntary dispositions inter vivos. On the contrary, as I have
said, it seems rather to provide a reason for the intervention of equity. The objection that the intended
beneficiaries could not enforce a contract is met by the fact mat a constructive trust arises from the
contract and the fact that testamentary dispositions made upon the faith of it have taken effect. It is
the constructive trust and not the contract that they are entitled to enforce.

[41] Considering the jurisprudence regarding this doctrine of mutual wills, it is trite that a court of equity
will not permit any transfer of property which is inconsistent with a legally binding obligation. It is also
trite that equity attaches to the principle of irrevocability in the doctrine of mutual wills which comes into
operation when the first to die does so without revoking his or her will. I am also inclined to hold, as the
cases suggest, that the principles of equity are equally applicable where the survivor has acted to his
detriment or has suffered serious prejudice when acting in full faith and reliance on the agreement or
understanding reached between the testators at the time of execution of the mutual wills. This will be
especially apparent in the situation where the first to die had acted unilaterally and without notice or
worse still, had acted in a secret or clandestine fashion in revoking the will entered into on an irrevocable
basis. In my judgment, this was precisely the case in the instant action when the deceased acted
unconscionably in revoking her 2002 will secretly to the detriment and prejudice of the plaintiff.

[42] I have noted the defendants' submission that the case of Stone v Hoskins, puts the nail in the coffin of
the plaintiff's claim. With respect, I think that observation is misconceived. Unlike the situation in Stone v
Hoskins, there has certainly been serious prejudice to the plaintiff in the instant case. To put it bluntly, the
defendants, his step-children, would now be able to kick the plaintiff out of the marital home. It would be
unjust and unconscionable to permit the deceased and now her estate and her children to profit from her
breach to the detriment and prejudice of the plaintiff.

APPLICATION FOR AMENDMENT

[43] At the end of the trial, the plaintiff filed an application in encl 32 to re-amend his amended statement
of claim. This application was opposed by the defendants. By this proposed amendment, the plaintiff
sought to include in the claim two paragraphs which set out the duties of the defendants as trustees in
accordance with equitable principles. There was also sought to be included an additional prayer for
declaratory relief as follows:
Perintah bahawa jika Wasiat Chiang Yoon Mooi (si-mati) bertarikh 16/2/2007 didapati wasiat yang
sah dan berkesan dan telah menggantikan wasiat Chiang Yoon Mooi bertarikh 16/2/2007 maka
Defendan-Defendan sebagai wasi dan pemegang amanah kepada harta pusaka si-mati memegang
harta-harta tertentu bagi pihak Plaintif di bawah amanah iaitu harta-harta dimana Plaintif telah
dinamakan benefisiari dalam wasiat si-mati bertarikh 15/10/2002.

77
[44] Order 20 r 5 of the Rules of the High Court 1980 ('RHC') sets out the principles governing
amendments to pleadings. In a nutshell, this provision allows amendments to be made at any stage of the
proceedings on such terms as to costs or otherwise as may be just and in such manner as the court may
direct. This rule implies that an amendment ought to be allowed if such amendment causes no prejudice
or injustice which cannot be compensated by costs or other means.

[45] The Federal Court in Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213
approved the following approach in dealing with amendment applications (at headnotes):
The general principle is that the court will allow such amendments as will cause no injustice to the
other parties. Three basic questions should be considered to determine whether injustice would or
would not result, (1) whether the application is bona fide; (2) whether prejudice caused to the other
side can be compensated by costs and (3) whether the amendments would not in effect turn the suit
from one character into a suit of another and inconsistent character.

[46] In Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230; [1987] CLJ (Rep) 126, the Supreme
Court in considering the general principles in the grant of leave to amend adopted a passage from The
Supreme Court Practice 1985 as follows (per Abdul Hamid Omar Acting LP at p 232 (MLJ), at p 129
(CLJ)):
It is a guiding principle of cardinal importance on the question of amendment that, generally
speaking, all such amendments ought to be made 'for the purpose of determining the real question in
controversy between the parties to any proceedings or of correcting any defect or error in any
proceedings' (see per Jenkins LJ in GL Baker Ltd v Medway Building & Supplies Ltd [1958] 1 WLR
1216 at p 1231; [1958] 3 All ER 540 at p 546).

It is a well established principle that the object of the court is to decide the rights of the parties, and
not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in.
accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or
intended to overreach, the court ought not to correct, if it can be done without injustice to the other
party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in
controversy, and I do not regard such amendment as matter of favour or grace … It seems to me that
as soon as it appears that the way in which a party has framed his case will not lead to a decision of
the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can
be done without injustice, as anything else in the case is a matter of right' (per Bowen LJ in Cropper
v Smith (1883) 26 Ch D 700 at pp 710–722, with which observations AL Smith LJ expressed
'emphatic agreement' in Shoe Machinery Co v Cultam [1896] 1 Ch 108 at p 112).

[47] On the question of delay in applying for the amendment, the Court of Appeal in YB Datuk Dr Soon
Choon Teck v YB Datuk Robert Lau Hoi Chew & Ors [2009] 3 MLJ 785; [2010] 7 CLJ 931 had this to
say (per Sulaiman Daud JCA at pp 795–796 (MLJ), at p 943 (CLJ)):
 [*220] 

It is a well settled principle that an amendment ought in general be allowed even if it comes late, if it
is necessary to do justice between the parties, so long any hardship done thereby can be compensated
78
 in money (per Lord Denning in Associated Leisure Ltd (Photographic Equipment Co Ltd) v
Associated Newspaper Ltd [1970] 2 QB 450, at p 455). A similar view was expressed by Abdul Malik
Ishak J (as he then was) in the case of Ultra Dimension Sdn Bhd v Sepadan Tuah Sdn Bhd, Genesis
The as Agency Sdn Bhd (Third Party) [2000] 6 CLJ 548, where he quoted the passage from the
judgment of Brett MR in Clarapede v Commercial Union Association (1883) 32 WR 263, as follows:

However negligent or careless may have been the first omission, and however late the proposed
amendment, the amendment should be allowed if it can be made without injustice to the other
side. There is no injustice if the other side can be compensated by costs.

Further, in HSBC Bank Malaysia Bhd v Macquarie Technologies (Malaysia) Sdn Bhd & Another
Appeal, Nik Hashim JCA (as he men was said, at p 129:

On the question of delay, it is worthy of note that delay alone is not a ground to refuse an
application for leave to amend. In Wright Norma, supra, at p 519 the court held:

While the time at which an amendment is made is a relevant consideration it is not

necessarily decisive. Delay per se does not equal prejudice or injustice. We do not mink any
rigid rule can be laid down on this.

[48] In Bumiputra-Commerce Bank Bhd & Ors v Bumi Warni Indah Sdn Bhd [2004] 4 CLJ 825, Abdul
Malik Ishak J (as he then was), after referring to several authorities, affirmed the principle that
amendments to pleadings are allowed before trial, during trial, before judgment, after judgment and even
when there is a pending appeal against a judgment. Consistent with this principle, Ajaib Singh J (as he
then was) in Yoong Leok Kee Corporation Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21 allowed an
amendment after the conclusion of a trial on the ground that the amendment was in the interest of justice.
This approach was confirmed by the Federal Court where it was held (in the same report at p 22) that the
amendment made did not prejudice the appellant.

[49] In the instant case, although the application for amendment was made very late in the proceedings, I
considered that it was made bona fide. There was no ploy in this case to delay proceedings or to seek
some unfair advantage. In essence as well, the character of the suit remains the same. There is no question
of turning the suit from one character into another. The only issue of concern is whether the amendment
would cause injustice to the defendants which cannot be compensated by costs. In this regard, it is
noteworthy that by this amendment, the plaintiff is not introducing new material facts or a new cause of
action but merely pleading the legal result that obtains from the material facts already pleaded. The legal
issue mat results from this amendment is whether equitable principles apply to create a trust from the
facts pleaded. There is therefore, to my mind, no prejudice to the defendants since the issue being
essentially a legal one, no new witnesses are required and no witnesses need to be recalled. Being legal
issues as well, these can be raised and settled during submissions. I do not think the parties can say they
are caught by surprise either in that if they had done the research on the law pertaining to mutual wills, as

79
they are obligated to do even before filing any claim or defending a claim, it will become patently
obvious that equitable principles are both relevant and significant.

[50] For these reasons, and in order to determining the real question in controversy between the parties
and in the interests of justice, I exercised my discretion in favour of allowing the amendments sought.
Accordingly, the application in encl 32 was allowed with costs to the defendants in any event.

CONCLUSION

[51] In the circumstances, and for the reasons I have stated, I hold that the deceased's last will dated 16
February 2007 is valid and enforceable except that the executors, who are the defendants in this case, will
hold the Seri Duta properties on trust for the plaintiff in accordance with the terms of the 2002 will.
Parties are at liberty to apply for further orders on ancillary matters. The counterclaim is dismissed. The
plaintiff is also entitled to one set of costs assessed at RM10,000.
Order accordingly.
Reported by Kanesh Sundrum

End of Document

80
 5. Selvarajoo a/l Palaniappa Pillai v Paramasivam a/l Palaniappa Pillai
[2013] 5 MLJ 748
Malayan Law Journal Reports · 13 pages

HIGH COURT (SHAH ALAM)

PRASAD ABRAHAM J
SUIT NO 22NCVC-504–04 OF 2012
17 May 2013

Case Summary

Succession — Probate — Grant of probate — Plaintiff challenged veracity of will after defendant
obtained grant of probate — Whether plaintiff had locus standi to commence action —
Presumption of marriage — Whether deceased and plaintiff's mother were married — Whether
plaintiff legitimate son of deceased — Testamentary capacity — Whether deceased had
testamentary capacity to execute will — Whether plaintiff raised suspicious circumstances that cast
doubt on testamentary capacity of deceased

In the late 1940s the late Palaniappa Pillai s/o Periayah ('the deceased') came to this country from India
and lived in a house in Rawang, Selangor ('the family home') with his two wives, Veeramah and
Sinnamal, who were both sisters. The deceased had four chidren with Veeramah, namely the plaintiff and
his three brothers. The deceased was also reputed to have two wives in India, who were allegedly dead.
The defendant and his brother claimed to be his children by his first wife. Upon the death of the deceased,
the defendant obtained a grant of probate based on the last will and testament of the deceased ('the will').

81
The plaintiff challenged the veracity of the will. The plaintiff contended that the will could not have been
executed by the deceased as he was seriously ill at the material time. The plaintiff filed the present suit
challenging the will propounded by the defendant. The defendant, in turn counterclaimed by challenging
the locus of the plaintiff to bring this action on the grounds that the law of distribution did not recognise
the plaintiff as his birth status was illegitimate. According to the defendant, the deceased had not entered
into a customary marriage with the plaintiff's mother, Veeramah, and that Veeramah had in fact entered
into a customary marriage with another. However, the plaintiff maintained that he was the lawful son of
the deceased. The plaintiff submitted that the deceased, his two wives, the plaintiff and his brothers as
well as the defendant and his brother had lived together in the family home and were regarded by all and
sundry as one family.

Held, making an order in favour of the plaintiff and dismissing the defendant's counterclaim with no
order as to costs:

(8) Although there was no clear direct evidence of Veeramah and the deceased having entered into a
ceremony of marriage, the presumption of marriage was not be so easily repelled because the
evidence pointed to the deceased and Veeramah being regarded as and passing off as husband and
wife for almost forty years. Further the plaintiff and his siblings as well as the defendant and his
brother were brought up in the family home (see para 5(a)).
(9) The evidence adduced in the present case, such as the plaintiff's birth certificate that clearly cited
the deceased as his father; the fact that Veeramah participated in the funeral rites of the deceased
when he passed away; and the plaintiff's brother's wedding invitation that was issued in the name
of Veeramah and the deceased supported the presumption of a valid marriage between Veeramah
and the deceased. Further, the conduct of the defendant in allowing the plaintiff and the family to
continue to reside in the family home and act of transferring properties to the plaintiff was
indicative of conduct moved by family ties (see para 5(b) – (e)).
(10) The power to remove in law the status of legitimacy of the plaintiff and the reality that the same
blood runs through the veins of the plaintiff and the defendant should be exercised only in the
most drastic of cases. The present case was not one in which the power should be exercised. As
such, the plaintiff was the legitimate son of the deceased (see para 7).
(11) Although the defendant argued that the deceased had only suffered a minor stroke and was
in full control of his mental faculties when he executed the will, the medical evidence suggested
that the deceased had made little recovery and was very weak and incoherent. In the
circumstances it was difficult to comprehend how the deceased could have visited the lawyer's
office to prepare the said will. The attesting witnesses to the will were also not called to testify
(see para 10).
(12) The plaintiff had succeeded in raising several suspicious circumstances that cast doubt on
the testamentary capacity of the deceased when he executed the will (see para 11).

Pada akhir tahun 1940-an, mendiang Palaniappa Pillai a/l Periayah ('si mati') datang ke negara ini dari
India dan tinggal di sebuah rumah di Rawang, Selangor ('rumah keluarga tersebut') dengan dua orang
isterinya, Veeramah dan Sinnamal, yang kedua-duanya adik-beradik. Si mati mempunyai empat orang
anak dengan Veeramah, iaitu plaintif dan tiga orang saudara lelakinya. Si mati juga dikatakan mempunyai
82
dua orang lagi isteri di India, yang didakwa sudah meninggal dunia. Defendan dan saudara lelakinya
mendakwa diri mereka sebagai anak isteri pertama. Dengan kematian si mati, defendan mendapat geran
probet berdasarkan wasiat terakhir si mati ('wasiat'). Plaintif mencabar kebenaran wasiat tersebut. Plaintif
menghujahkan bahawa wasiat tersebut tidak mungkin dilaksanakan oleh si mati kerana dia sakit tenat
pada masa material. Plaintif memfailkan guaman ini mencabar wasiat yang dikemukakan oleh defendan.
Defendan sebaliknya menuntut balas dengan mencabar lokus plaintif untuk membawa tindakan ini atas
alasan bahawa undang-undang pembahagian tidak mengiktiraf plaintif kerana status kelahirannya adalah
tidak sah. Menurut defendan, si mati tidak berkahwin secara adat dengan ibu plaintif, Veeramah dan
malahan Veeramah telah berkahwin secara adat dengan orang lain. Walau bagaimanapun, plaintif
menghujahkan bahawa dia adalah anak lelaki si mati yang sah. Plaintif menghujahkan bahawa si mati,
kedua-dua isterinya, plaintif dan saudara-saudara lelakinya serta defendan dan saudara lelakinya tinggal
di rumah keluarga tersebut dan dianggap oleh ramai sebagai satu keluarga.

Diputuskan, perintah memihak plaintif dan menolak tuntutan balas defendan tanpa perintah terhadap
kos:

(8) Walaupun tiada keterangan langsung bahawa Veeramah dan si mati telah berkahwin secara adat,
anggapan perkahwinan tidak boleh ditolak dengan mudah kerana keterangan menunjukkan
bahawa si mati dan Veeramah dianggap dan dilihat sebagai suami dan isteri selama hampir 40
tahun. Tambahan lagi, plaintif dan adik-beradiknya dan juga defendan serta saudara lelakinya
dibesarkan di rumah keluarga tersebut (lihat perenggan 5(a)).
(9) Keterangan yang dikemukakan dalam kes ini, seperti sijil kelahiran plaintif jelas menyatakan si
mati sebagai ayahnya; fakta bahawa Veeramah terlibat dalam acara pengebumian si mati ketika
dia meninggal dunia; dan undangan perkahwinan saudara lelaki plaintif yang dikeluarkan di
bawah nama Veeramah dan si mati menguatkan anggapan perkahwinan yang sah antara Veeramah
dan si mati. Selanjutnya, perlakuan defendan dalam membenarkan plaintif dan keluarganya untuk
terus tinggal di rumah keluarga dan tindakan memindahkan harta-harta kepada plaintif adalah
petunjuk kelakuan yang dijana oleh ikatan kekeluargaan (lihat perenggan 5(b)–(e)).
(10) Kuasa untuk membatalkan status keesahan plaintif dan realiti bahawa darah yang sama
mengalir dalam tubuh plaintif dan defendan boleh dijalankan dalam kes-kes yang amat drastik.
Kes ini bukanlah kes yang mana kuasa tersebut perlu dijalankan. Dengan itu, plaintif adalah anak
si mati yang sah (lihat perenggan 7).

(11) Walaupun defendan menghujahkan bahawa si mati hanya mengalami strok kecil dan
mempunyai kawalan penuh fakulti mindanya ketika melaksanakan wasiat tersebut, keterangan
perubatan menunjukkan bahawa si mati telah pulih sedikit dan sangat lemah serta tidak keruan.
Dalam hal keadaan sedemikian, adalah sukar untuk memahami bagaimana si mati boleh bertemu
dengan peguamnya untuk menyediakan wasiat tersebut. Saksi-saksi pengakusaksian bagi wasiat
tersebut juga tidak dipanggil untuk memberi keterangan (lihat perenggan 10). 
(12) Plaintif berjaya membangkitkan hal-hal keadaan mencurigakan yang menimbulkan
keraguan tentang keupayaan si mati untuk berwasiat semasa dia melaksanakannya (lihat
perenggan 11).

83
Notes

For a case on grant of probate, see 11 Mallal's Digest (4th Ed, 2011 Reissue) para 2533.

Cases referred to

Chua Mui Nee v Palaniappan [1967] 1 MLJ 270, FC (refd)

Kaulsya a/p Pathmanathan & 1 other v Jamuna a/p Narayanan Suit No 22NCVC-1084–11 of 2011
(unreported) (refd)

Lakshmi Ammal v Algiriswami Chettiar (unreported) (refd)

Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA (refd)

Letchumanan Chettiar v Palaniappa Chettiar [1978] 1 MLJ 120, FC (refd)

Martha Samadhanam David v Sudha AIR 1950 Kant 26; AIR 1950 Mys 26, HC (refd)
Legislation referred to

Civil Law Act 1956

Evidence Act 1950ss 50, 112

Law Reform (Marriage and Divorce) Act 1976

Murali Achan (K Kulasekar Achan & Associate) for the plaintiff.

Jaspal Singh Mann (Pramjit Kaur and Santhakumari a/p Thangavelu with him) (Man & Associate)
for the defendant.

Prasad Abraham J:

[1] This case embarked on a challenge to a will propounded by the defendant, wherein pursuant to a
Petition No 921 of 1978, a grant of probate was issued by the High Court in Kuala Lumpur on 28
November 1978, by the plaintiff. The defendant challenged the locus of the plaintiff to bring this action as
84
the birth status of the plaintiff was illegitimate and the law of distribution did not recognise the plaintiff,
and with that challenge, the court had to dwelve into the family history of the plaintiff and the defendant
predating back to the 1940s to properly determine the status of the plaintiff.

[2] The plaintiff contends that the plaintiff is the lawful son of the late Palaniappa Pillai s/o Periayah who
was the Patriach of the family ('Palaniappa'). Palianappa came to this country from India in the 1940s and
he lived in a house in Rawang Selangor at No 3 Lorong Kong Fatt ('the family home'). Palaniappa was
reputed to have had four wives, two of whom lived and died in India. Now Palaniappa lived in the family
home with Veeramah and Sinnamal who were both sisters and had four children with Veeramah. They are
Maniam, Sundarajoo, Ravinthran and the plaintiff. The defendant and his brother Subramaniam were
children by his first wife Ramayee Ammal. All these siblings lived with the deceased, Veeramah and
Sinnamal in the family home and to all and sundry they were a family.

[3] The defendant, contends on the other hand, that this was a pure arrangement of convenience as the
deceased had a history of 'girlfriends' and the plaintiff and his siblings were never recognised nor
accepted by the defendant as Veeramah had a thalli tied by one Veralingam and she had made a claim for
his pension. In the light of that, there could not be a customary marriage between the plaintiff's mother
and the deceased and it follows the plaintiff's status was one of illegitimacy.

[4] The court would have to charter unknown waters as all this took place in the 1940s well before the
coming into force of the Civil Law Act 1956 and Law Reform (Marriage and Divorce) Act 1976, which
recognises customary marriages.

[5] I refer to the late Augustine Paul's text on Evidence Practise & Procedure (4th Ed) at p 557 on words
where the learned author sets out ss 50 and 112 of the Evidence Act 1950 and I quote:
50 Opinion on relationship when relevant
(iii) when the Court has to form an opinion as to the relationship of one person to another, the
opinion expressed by conduct as to the existence of such relationship of any person who as a
member of the family or otherwise has special means of knowledge on the subject is a
relevant fact.
(iv) Such opinion shall not be sufficient to prove a marriage in prosecutions under section 494,
495 or 498 of the Penal Code.

ILLUSTRATIONS
(ii) The question is whether A and B were married.
(ii) The question is whether A was a legitimate son of B. The fact that A was always treated as
such by members of the family is relevant.

Evidence of marriage

85
 (iii) The evidence of reputation of two persons being husband and wife is evidence of such
marriage.

per Hackett J in Ong Cheng Neo v Yeap Cheah (1872) 1 Ky 326, 328–330: 

It is admitted that the Plaintiff and the testatrix were children of the same mother, Cheah Tuan
Neo, and the question at issue is whether Cheah Tuan Neo was married to Ong Sye, the father of
the plaintiff, or whether she was only his concubine.

The evidence in support of the marriage is of two kinds - first, the evidence of persons who state they
were present at the marriage ceremony; and secondly, evidence of reputation. Upon the first point
several aged Chinese were called, who stated that they were present at the marriage of Cheah Tuan
Neo to Ong Sye, about sixty years ago, and that they were always regarded as husband and wife, and
as such were received in society. Many other witnesses were called by the Plaintiff to prove
reputation and, indeed, all the witnesses as well as those for the defendant, as for the Plaintiff [with
the exception of Khoo Seng Hap whose evidence was unsupported] concurred in saying that Cheah
Tuan Neo was always treated with the respect due to a married woman, and was regarded as such. It
also appeared in evidence that after the death of Cheah Tuan Neo, the Plaintiff applied for letters of
administration to her estate, and that, upon the hearing of the petition, the testatrix as the eldest
daughter of the deceased, appeared, and herself applied for letters, but that she subsequently waived
her claim in favour of the Plaintiff, thus implicitly acknowledging her legitimacy. The Plaintiff also
proved that the testatrix had procured a tombstone from Chine for her mother's grave, on which were
inscribed the words - 'Cheah Tuan Neo, her tombstone, son: Oh Kok Jean; daughters: Ong Yeo Neo,
Ong Urn Neo and Ong Cheng Neo', but there was no mention made of husband. It is stated that it is
unusual to put the husband's 'seh' or tribe on the wife's tombstone, and the omission of it in the
present case is accounted for as follows:

'Koh Teng Choon, the Chinese interpreter of the Supreme Court states that when a woman has
one husband, the name of the husband is inscribed, but if she has had two husbands, the name of
the last husband is placed, if there is an agreement between the parties interested, but that if they
do not agree, then the name of neither husband is placed. On the whole, I think, that if any
inference is to be drawn from the inscription on the tombstone, it is favourable to the legitimacy
of the plaintiff, as all the daughters are described in the same way, and no difference whatever is
made between them.

The defendants contended that the evidence of the marriage is insufficient, and they rely on the
following circumstances: first, that it is not stated by the witnesses of the marriage that any male
relative gave the woman away; secondly, that Cheah Tuan Neo was taken when dying from the
house of plaintiff to that of Oh Yeo Neo; and lastly, that at the funeral of Cheah Tuan Neo, the
seh 'Oh' [that of the first husband] was inscribed on the lanterns.

Now, in deciding the question of marriage or no marriage, in a case where there is evidence that
the parties have passed as man and wife for many years, it must be remembered that it does not
merely depend on the greater or lesser weight of the evidence on one side, or on the other, or in
the balance of evidence as to particular facts. In the case of marriage, there is always a
presumption in its favour. Semper presumtor pro matrimonio. As Lord Lyndhurst observed in
Morris v Davies [5 Clark & Fin 163], the presumption of law [in favour of marriage] is not to be
86
 lightly repelled. It is not to be broken in upon or shaken by a mere balance of probability. The
evidence for the purpose of repelling it, must be strong, distinct, satisfactory and conclusive.

In the Breadalbane case, [LR ISc & Div 182] the connection of the persons whose marriage was in
question was in its origin illicit, and yet the House of Lords held, that after many years cohabitation
with the reputation of husband and wife, it must be presumed that they had been married, although,
there was no evidence of an actual marriage. It is true, this was in Scotland, but there seems no
reason why the same principle should not hold good, generally. As Lord Cranworth observed in that
case: 'By the law of England, and I presume of all other Christian countries, when a man and woman
have long lived together as husband and wife, and have been so treated by their friends and
neighbours, there is a prima facie presumption that they really are, and have been what they profess
to be. If, after their deaths, a succession should open to their children any one claiming a share in such
succession as a child, would establish a good prima facie case, by showing that his parents had
always passed in society as man and wife, and that the claimant had always passed as their child'.

In the present case we have the fact of the marriage proved by witnesses, and even if the evidence of
the performance of the marriage ceremony be considered not altogether satisfactory, yet there is clear
evidence that, after the death of her first husband, Cheah Tuan Neo, lived with Ong Sye as his wife,
and was regarded as such by all her relations and friends. The only evidence to contradict the
evidence of reputations, extending over a period of about sixty years, is that, of the witness Khoo
Seng Hap, who alleges that the deceased Yeo Neo spoke to him in terms of disapproval of the
connection of her mother with Ong Sye, and called it a shameful affair, but as this is unsupported and
is inconsistent with all the other evidence in the case, I do not consider it as worthy of credit.

The presumption which arises from the evidence of reputation extending over so long a period of
time, I do not think is rebutted by the facts relied upon by the Defendants. The evidence of the
meaning and significance of Chinese customs, [such as carrying lanterns at a funeral] must be much
clearer than it has been in the present case to warrant me in inferring from it the non-existence of a
previous marriage, in opposition to the strongest evidence from reputation. When the status of
marriage has subsisted for more than half a century, and children have been born who always held in
the family, the position of legitimate members of that family, it appears to me, that it would be most
dangerous to hold that status does not in reality exist, except on the clearest and strongest evidence.
In the present case, I do not think such evidence has been produced, and I, therefore, feel bound to
hold, that the plaintiff has established her rights as one of the next of kin of the testatrix.

(See also R v Govindasamy [1993] 2 MLJ 97 (HC)

This being a criminal case the marriage must be strictly proved and recourse cannot be had to the
presumptions in favour of marriage which the court can rely upon in civil cases such as those in
which the legitimacy of children is in issue. The distinction between the degree of proof of
marriage required in a civil case and that required in a criminal prosecution is exemplified by s
50(2) of the Evidence Ordinance which provides that the opinion expressed by conduct of any
person who has special means of knowledge as to the existence of any relationship of one person
to another shall not be sufficient to prove a marriage in prosecutions under s 498 although such
opinion is a relevant fact which might constitute sufficient evidence in a civil matter.

87
 On a criminal charge the actual celebration of a marriage ceremony must be proved unless the
marriage can be established by a certificate of registration and if the ceremony is to be proved at
least one witness must be recalled who can describe it so as to enable the court to determine
whether it constituted a legal marriage, (see Archbold's Criminal Pleadings and Evidence (28th
Ed), p 1327).

I also set out s 112 of the Evidence Act 1950 and I quote:

Section 112 Birth during marriage conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage between his mother and
any man, or within two hundred & eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the
parties to the marriage had no access to each other at any time when he could have been begotten.

Opinion evidence as to legitimacy

Section 112 of the Act deals with the presumption as to legitimacy. Illustration (b) of this section
states that when the question is whether A was the legitimate son of B, the fact that A was always
treated as such by members of the family is relevant.

Per Mansfield CJ in the Berkeley Peerage Case (1811) 4 Camp 401, 416:

If the father is proved to have brought up the party as his legitimate son, this amounts to a daily
assertion that the son is legitimate.

Let me examine the evidence that is before the court.

(iv) although there is no clear direct evidence on any wedding ceremony, that Veeramah and the
deceased went through, they had lived together for almost 40 and had four children together. The
evidence points to them being regarded as husband and wife and have passed off as husband and
wife for many years. The presumption of marriage is not to be easily 'repelled'. The other point to
be considered is that the siblings were all brought up in the family home and this included the
defendant and his brother. I refer to the cross-examination of PW1 at pp 62–69 of the notes of
evidence:
(v) Question number 180 to 188 Yang Arif. Why do you say that the deceased treated you and
your siblings as his lawful children? Question number 180.

88
(vi) Ever since my father, ever since I was born, he took care of me and I grew up with my
father. He has acknowledged me in the birth certificate, he has put his name in the birth
certificate (01:52:12 inaudible). So I think it's a good reason to say that my father has
treated me as a lawful child.
(vii) So in fact you knew for a fact that you and your siblings were not his lawful
children. [*756] 
(viii) Disagree.
(ix) You've stated that the deceased had treated you and your siblings as lawful children. Am I
right?
(x) Yes.
(xi) Yes he did not hold on trust or transfer his property to you or your siblings during his
lifetime. What do you have to say about this?
(xii) The fact that he did not make the trust or transfer doesn't make us unlawful children
(a) No. What do you have to say for that, that he did not actually transfer any properties to
you or your siblings nor did he hold any property for trust?
(i) That doesn't make us unlawful children. That's what I'm saying.
(ii) Now I refer you to a photograph.
Counsel for defendant

There's two photographs. I will put it as A and B Yang Arif

(iii) In Bundle B, in Tab-36 can you tell the Court, the second photograph, that is B, where is
the deceased in the photograph?
(iv) Third from the back.
Court
(v) From the left?
(a) Yes, from the left
(a) Yes. If he has treated you and your siblings as lawful children, yet during the eldest
brother's marriage the deceased chose to stand behind with other relatives.
(a) I think it's not necessary to stand beside my mother. And if you see the top photograph my
mother and father.
Court
(i) Where's your mother in this photograph B?
(ii) My mother is just on the right of my brother Maniam. She is seated just beside Maniam.
Maniam wearing the garland. She is on the right of Maniam.
(iii) Now I refer you to the first photograph. According to Hindu customs, how do you get
blessing from your parents?
(iv) Both of them will blessing.
(v) No, how do you get blessing? [*757] 

89
 (a) Throw the rice.
Counsel for defendant

Below is English one. The card is both in Tamil and in English.

Q: Yang Arif I won't be asking any question on that. Now my question on these photographs.
Are you telling the Court since the deceased was standing there in the photograph and you
claim he was blessing, that therefore you become his lawful son and that you have a right
of succession of his property? Are you saying that?
A: What I'm saying that they are blessing my brother's wedding, they are obviously my
mother and father.
Q: Do you agree that there are others who are also blessing your brother?
A: It's not the photograph
Q: No, do you agree during the marriage that there are others who are blessing your brother?
A: Yes
Counsel for defendant

Yes, question number 176 until 179. Refer to Tab-31 Bundle B

Q: Bundle B, Yang Arif the transfer form. Can you tell the Court the consideration given by
you to the defendant for the transfer of these properties?
A: No consideration
Court
Q: Consideration was kasih sayang?
A: Yes
Q: Kasih sayang between who and who? Between brothers or?
A: Even though it says love and affection, this was given
Q: No just answer me that. Love and affection based on what? Relationship of?
A: Brother
Q: Brothers?
A: Yes
(iv) I also took into account the birth certificate of the plaintiff, which clearly cites the deceased as the
father, (bundle B1, p 1);

(iv) Veeramah the plaintiff's mother participated in the funeral rites of the deceased when he passed
away on 22 October 1977;
(iv) when the plaintiff's brother was married, the wedding invitation was issued in the name of
Veeramah and the deceased (see bundle B1 Tab 12). All these evidences in my view clearly
support the presumption of a valid marriage between Veeramah and the deceased; and
(iv) the conduct of the defendant in allowing the plaintiff and the family to continue to reside in the
family home and the defendant had actually transferred property to the plaintiff is surely
90
 indicative of conduct moved by family ties. The court observes that the defendant was coy in
giving direct answers as to transfer of properties to the plaintiff.

[6] The defendant had raised the point that as the deceased had married and had a wife in India in 1942,
when he began to cohabit with Veeramah and therefore, no marriage could be contracted in law as Hindu
customary law does not recognise a polygamous marriage and I was referred to the authority cited by
counsel for the defendant namely Kaulsya a/p Pathmanathan & 1 other v Jamuna a/p Narayanan Suit No
22NCVC-1084–11 of 2011 (the defendant's bundle of authorities II) and counsel for the plaintiff cites the
following authorities to rebut the contention of the defendant, Martha Samadhanam David v Sudha AIR
1950 Kant 26; AIR 1950 Mys 26 at Tab 2 of the plaintiff's bundle of authorities vol II (PBA II), Lakshmi
Ammal v Algiriswami Chettiar at Tab 3 of PBAII, and Letchumanan Chettiar v Palaniappa Chettiar
[1978] 1 MLJ 120 at Tab 5 ie apart from the provisions of the Evidence Act 1950, which I had alluded to,
I refer to the decision at the Federal Court in case Chua Mui Nee v Palaniappan [1967] 1 MLJ 270, and to
the judgment of His Lordship Barakbah LP at p 272 and I quote:

In the present case, as I have said earlier, the question is not whether there had been justae nuptiae
justum matrimonium but whether there had been a marriage. At the time the marriage was celebrated
between the deceased and the appellant, Hindu law and custom permitted polygamous marriages in
India but then the question arose as to whether the consent of the first wife must be obtained before
the second marriage could take place. According to Gupta's Hindu Law (2nd Ed), p 900:

It has been held that a Hindu may marry again though he has a wife or wives living without his
wife's consent and although no justification, such as the sterility of the wife, exists, unless custom
prevents such marriage without such consent. In such a case her consent must be obtained and
other conditions if any required must be fulfilled.

[7] I might add as a postscript to this point, the power to remove in law the status of legitimacy of the
plaintiff and the reality that the same blood runs through the veins of the plaintiff and the defendant
should be exercised only in the most drastic of cases. This is certainly not one of them. I therefore rule the
plaintiff is the legitimate son of the deceased. 

[8] I now turn to the question of the validity of the will allegedly executed by the deceased. The alleged
last will and testament of the deceased is found in Annexure 26, bundle B ie the said will. The plaintiff
contends that the said will could not have been executed by the deceased as he was seriously ill at the
material time, and the veracity of the will is challenged. I quote the holding of the Court of Appeal in Lee
Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 at p 98 where it was held:

(1) Where the validity of a will was challenged, the burden of proving testamentary capacity and due
execution is on the propounder of the will as is the burden of dispelling any suspicious circumstances
that may surround the making of the will. That burden may be discharged by showing that the
testator, being of competent mind, had his will read over to him or that the testator knew and
approved of the contents of the will. The onus of establishing any extraneous vitiating element such

91
 as undue influence, fraud or forgery lay on those who challenged the will, in this case, the plaintiffs
(see pp 113G, 116B).

[9] I now embark to evaluate the evidence before the court before the said will was executed to ascertain
whether the deceased had testamentary capacity to execute the said will.

[10] The defendant contends that the deceased albeit had suffered a minor stroke at the time but was in
full control of his mental faculties and understood fully what he was signing. However, the medical
evidence suggests otherwise. I refer to tab 22–24 of bundle B. These reports show the deceased had made
little recovery and was very weak and incoherent under these circumstances. I find it hard to comprehend
how the deceased in that condition could have visited the lawyer's office to prepare the said will. None of
the attesting witnesses to the said will were called to testify and neither was Subramaniam the brother of
the defendant who purportedly accompanied the deceased to the lawyer's office although my attention
was drawn to the fact that he was present in court throughout proceedings. The plaintiff's counsel also
points to the fact that tab 25 of bundle B shows a power of attorney purportedly signed by the deceased
and two weeks later, the deceased thumbprints his alleged signature to the said will once again the
solicitor who attested the power of attorney were not called to testify.

[11] It is my judgment that the plaintiff has succeeded in raising several suspicious circumstances that
cast doubt on the testamentary capacity of the deceased when he executed the said will. If the said will
stands, then defendant is a sole beneficiary to the plantation to the exclusion of all his siblings, whereas if
the estate of the deceased was to be administered, then all siblings would be entitled to their share of the
deceased's estate according to the law. 

[12] For the aforesaid reasons, I made the following orders:

(a) OIT of para 34(a)–(c) only; and
(b) the counterclaim of the defendant is dismissed with no order as to costs.

Order made in favour of plaintiff and defendant's counterclaim dismissed with no order as to costs.
Reported by Kohila Nesan

End of Document

92
 6. Tok Siew Ling & Anor v Low Chee Choy [2014] 9 MLJ 787
Malayan Law Journal Reports · 24 pages

HIGH COURT (KUALA LUMPUR)

YEOH WEE SIAM J
CIVIL SUIT NO 22 NCVC-1078–09 OF 2012
1 November 2013

Case Summary

Evidence — Documentary evidence — Agreed bundle — Document classified as Part B document

— Meaning — Whether authenticity not disputed — Whether maker not required to testify on
authenticity — Whether contents of document may be accepted as unrebutted if unchallenged

Succession — Probate — Testamentary capacity — Whether deceased had testamentary capacity

to execute will — Whether defendant discharged burden of proving testamentary capacity —
Whether plaintiff's allegation that deceased's thumbprint affixed by defendant when deceased was
heavily sedated and not fully conscious true — Rules of the High Court 1980 O 72 r 2(1)

Succession — Will — Validity — Deceased's cohabiting partner applied for and obtained grant of
probate — Deceased's siblings (plaintiffs) challenged validity of will — Whether deceased had
testamentary capacity to execute will — Whether there were suspicious circumstances surrounding
making of will — Whether defendant discharged burden of proving testamentary capacity and due
93
execution of will — Whether plaintiff's allegation that deceased's thumbprint affixed by defendant
when deceased was heavily sedated and not fully conscious true — Rules of the High Court 1980 O
72 r 2(1)

The plaintiffs were the siblings of the late Toh Tew Ngoh ('the deceased'). The deceased and the
defendant had not married but had lived as a couple since 1962. They had no children. The defendant was
the executor of the estate of the deceased by grant of probate issued on 10 January 2012 ('the grant') based
on a will purported to have been made by the deceased in 2011 ('2011 will'). The plaintiffs commenced
this probate action under O 72 r 2(1) of the Rules of the High Court 1980 for the revocation of the grant.
The plaintiffs, inter alia, prayed for declarations that the grant was invalid and that the said grant be
revoked. The plaintiffs claimed that an earlier will made by the deceased in 1984 ('1984 will') was the
deceased's actual will. The deceased was not literate in English but she could speak Cantonese and,
according to her siblings, the deceased used to sign her documents and not thumbprint them. The
witnesses for the defence claimed that on 20 June 2011 the deceased was conscious and had testamentary
capacity to execute the 2011 will. However, they claimed that the deceased affixed her thumbprint on the
2011 will, assisted by the defendant, because she was weak.

Held, allowing the plaintiff's claim:

(1) The defendant, being the propounder of the 2011 will, bore the burden of proving that: (a) the
deceased had testamentary capacity at the time when she executed the will; (b) the will was duly
executed; and (c) there were no suspicious circumstances surrounding the making of the will.
Once the defendant had discharged this burden of proof, the burden then shifted to the plaintiffs to
prove the extraneous vitiating element such as fraud (see paras 25–26).
(2) It was highly improbable that the deceased did in fact execute the 2011 will. There was a high
probability that what the plaintiffs alleged was true ie that the deceased's thumbprint was affixed
by the defendant when the deceased was heavily sedated and not fully conscious after 20 June
2011, in the days before she passed away. Further if the deceased was too weak to sign and
therefore had to thumbprint the 2011 will, then the serious doubt arose as to who actually dated
the 2011 will. It could not have been the deceased because, according to the defendant, the
deceased was purportedly too weak to sign it (see paras 54–55).
(3) The 1984 will had been agreed by both parties during the case management stage, that this
document be classified as a Part B document. This meant that the authenticity, or the making of
the 1984 will, was not disputed from the outset. Therefore, the maker of the 1984 will and the two
witnesses to the execution of the 1984 will were not required to come to court to testify on the
authenticity of the 1984 will. In the absence of any challenge by the defendant on the contents of
the 1984 will, the court accepted the contents of the 1984 will as being unrebutted (see paras 65–
66).

Plaintif-plaintif adalah adik beradik kepada mendiang Toh Tew Ngah (si mati). Si mati dan defendan
tidak pernah berkahwin tetapi telah hidup bersama sebagai pasangan sejak 1962. Mereka tidak
mempunyai zuriat. Defendan adalah wasi kepada estet si mati melalui geran probet yang dikeluarkan pada
10 Januari 2012 (geran) berdasarkan wasiat yang dikatakan dibuat oleh si mati pada tahun 2011 (wasiat
94
2011). Plaintif-plaintif memulakan tindakan probet di bawah A 72 k 2(1) Kaedah-kaedah Mahkamah
Tinggi 1980 untuk membatalkan geran tersebut. Plaintif-plaintif antara lain memohon deklarasi bahawa
geran tersebut adalah tidak sah dan dibatalkan. Plaintif-plaintif mendakwa bahawa wasiat terdahulu yang
dibuat oleh si mati pada tahun 1984 (wasiat 1984) adalah wasiat sebenar si mati. Si mati tidak memahami
Bahasa Inggeris tetapi dia boleh bertutur dalam Bahasa Kantonis dan, menurut plaintif-plaintif, adik-
beradik si mati, si mati selalunya menandatangani segala dokumen-dokumen dan menggunakan cap jari
untuk pengesahan dokumen-dokumen.

Diputuskan, membenarkan permohonan plaintif:

(1) Defendan, merupakan orang yang mengemukakan dalam wasiat 2011, menanggung beban untuk
membuktikan bahawa (a) si mati mempunyai kapasiti untuk memberi wasiat sewaktu dia
membuat wasiat; (b) wasiat tersebut telah dimeterai; (c) tiada situasi keadaan yang mencurigakan
sewaktu membuat wasiat. Sebaik sahaja defendan melepaskan beban pembuktian tersebut, beban
tersebut berpindah kepada plaintif untuk membutikan terdapat elemen luaran yang menjejaskan
wasiat tersebut seperti fraud (lihat perenggan 25–26).
(2) Kemungkinan bahawa si mati telah membuat wasiat 2011 adalah sangat tinggi. Terdapat
kemungkinan besar juga bahawa apa yang didakwa oleh plaintif-plaintif adalah benar, iaitu
bahawa cap jari si mati telah diturunkan oleh defendan semasa si mati sedang berada di bawah
pengaruh ubat yang kuat dan dalam keadaan separa sedar selepas 20 jun 2011, hari-hari sebelum
kematiannya. Tambahan lagi, jika si mati terlalu lemah untuk menandatangani dan oleh itu
terpaksa menurunkan pengesahan cap jari bagi wasiat 2011, oleh itu timbul keraguan yang sangat
tinggi akan siapa sebenarnya yang telah mengesahkan tarikh bagi wasiat 2011. Si mati tidak
mungkin berupaya mengesahkan tarikh wasiat tersebut kerana, menurut defendan, si mati
dikatakan amat lemah untuk menandatanganinya (lihat perenggan 54–55).
(3) Wasiat 1984 telah dipersetujui oleh kedua-dua pihak sewaktu di peringkat pengurusan kes,
bahawa dokumen tersebut akan diklasifikasikan sebagai dokumen Bahagian B. Itu bermaksud,
bahawa ketulenan, atau pembuatan wasiat 1984, tidak dipertikaikan dari permulaan. Oleh itu,
pembuat wasiat 1984 tidak perlu hadir ke mahkamah untuk memberi keterangan akan ketulenan
wasiat 1984. oleh kerana defendan tidak mencabar kandungan wasiat 1984, mahkamah menerima
kandungan wasiat tersebut tidak dipertikaikan (lihat perenggan 65–66).

Notes

For cases on agreed bundle, see 7(1) Mallal's Digest (4th Ed, 2013 Reissue) paras 1372–1385.

For cases on testamentary capacity, see 11 Mallal's Digest (4th Ed, 2013 Reissue) paras 2603–2616.

For cases on validity, see 11 Mallal's Digest (4th Ed, 2013 Reissue) paras 2840–2847.

95
 Cases referred to

Barry v Butlin (1838) II Moo PCC 480 (refd)

Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ
304, FC (refd)

Hue Chooi Yin (P) v Chew Pit King [2011] 2 AMR 56, HC (refd)

Pang Kwee Yin v Teh Sew Wan [2012] 5 MLJ 225; [2012] 2 AMR 539, HC (refd)

Thiang Kai Goh v Yee Bee Eng & Ors [2005] 1 MLJ 431, HC (refd)

Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 MLJ 97; [2002] 4 CLJ 90, CA (refd)
Legislation referred to

Civil Marriage Ordinance 1952

Evidence Act 1950s 74, 74(a)(iii), (b)

Law Reform (Marriage and Divorce) Act 1976

Rules of the High Court 1980O 72 rr 2(1), 7

Rules of Court 2012O 72 r 8

Chandran Nair (Thevin, Chandran & Assocs) for the plaintiff.

Daniel Siew (Lee Kuan Mang & Co) for the defendant.

Yeoh Wee Siam J:

PROBATE ACTION

[1] Effectively, this is a probate action commenced by writ under O 72 r 2(1) of the Rules of the High
96
Court 1980 ('the RHC') for the revocation of the grant of probate of the will (note: the RHC have been
revoked and replaced on 1 August 2012 by the Rules of Court 2012 ('the ROC')).

[2] The prerequisite for the commencement of a probate action is that a citation is issued under O 72 r 7
of the RHC. By an order dated 6 August 2012 the Kuala Lumpur High Court issued the citation directing
the defendant to deposit the probate with the registry under O 72 r 8 of the ROC. This has been duly
complied with by the defendant.
 
AMENDED WRIT OF SUMMONS AND AMENDED STATEMENT OF CLAIM ('SOC')

[3] In para 17 of the SOC, the plaintiffs applied for the following reliefs:
(i) a declaration that the grant of probate dated 10 January 2012 issued in Kuala Lumpur High Court
Petition No S-32NCVC-942–09 of 2011 is invalid;
(ii) an order that the said grant of probate be revoked;
(iii) an order that the plaintiffs proceed to probate the will dated 11 January 1984 and be appointed as
executors and administrators of the estate of the said deceased in accordance with the desire of the
decease expressed therein;
(iv) a further order that the said estate be distributed in accordance with the terms of the will dated 11
January 1984;
(v) the defendant to pay all the solicitor/client costs incurred by the plaintiffs in this suit;
(vi) costs;
(vii) interest on the costs at 5%pa from the date of judgment to date of satisfaction;
(viii) such further or other relief.

PARTIES

[4] The plaintiffs are two out of six siblings of the late Toh Tew Ngoh ('the deceased'). The first plaintiff
('P1') is the deceased's younger sister. The second plaintiff ('P2') is the deceased's step-brother.

[5] The defendant is the executor of the estate of the deceased by grant of probate issued on 10 January
2012 by the Kuala Lumpur High Court Petition No 32NCVC-942–09 of 2011.

BACKGROUND FACTS

[6] The deceased was the eldest amongst her six siblings. The deceased and her parents and siblings lived

97
together in a squatter settlement at Jalan Ipoh, Kuala Lumpur in the 1960s ('family house'). The deceased
and the defendant began their relationship in 1962. 

[7] The deceased's father died in an accident in 1965. Thereafter, the deceased, being the eldest child, had
to support her family.

[8] There was no legal registration of their marriage, but the defendant and deceased used to sleep
together frequently in the same room in the deceased's family house.

[9] In the early 1970s, the defendant and the deceased purportedly moved to live together at their house in
Taman Kok Lian ('Taman Kok Lian house'). Not long after that, the deceased's family moved from their
family house to a house in Taman Kepong ('Taman Kepong house'). Toh Siew Leong ('PW3'), one of the
deceased's sisters, today resides at this house which belongs to the estate of the deceased.

[10] The deceased and the defendant had no children. According to the defendant, it is because the
deceased had a medical condition ie asthma.

[11] In 1975 the defendant 'married' a second wife, Tan Guat Hoh ('DW4'), purportedly with the blessings
of the deceased. This second marriage was also not registered according to law. From this second
marriage, the defendant had two children ie a son, Vincent Low Wei Sheng ('DW5'), now 32 years old,
and a daughter.

[12] In 2011, the deceased was diagnosed with cancer and was treated at the Selayang Hospital. She
passed away at the same Hospital on 11 July 2011.

[13] The plaintiffs contended that in 1984 the deceased had executed a will ('the 1984 will') (CBOD1 Part
B pp 1–4) where all the deceased's siblings were made beneficiaries of the deceased's estate.

[14] The defendant contended that on 20 June 2011, the deceased executed her latest will and last
testament ('the 2011 will') (CBOD1 Part B pp 6–7). In the 2011 will, the deceased gave all her properties
to the defendant as the sole beneficiary.

THE PROPERTIES

[15] The deceased had purchased the following properties in her name:
(ii) the Taman Kok Lian house, which is a single storey house;
(ii) a double storey link house in Taman Muda, Ampang, Selangor;

(ii) the Taman Kepong house, which is a double storey link house;

98
 (ii) two pieces of leasehold lands in Mukim Batu, Kuala Lumpur, of which she is the registered owner
of 1/2 share of each piece of land. The defendant is the registered owner of the other 1/2 share of
each piece of land.

(see full particulars of the properties in paras 6 and 7 of the SOC).

ISSUES TO BE TRIED

[16] The main issue is whether the 1984 will dated 14 January 1984 is valid and effective, or whether the
2011 will dated 20 June 2011, purportedly being the last will and last testament of the deceased, is valid
and effective and has revoked the 1984 will.

BURDEN OF PROOF

[17] The first principle has been well stated in an old English case, Barry v Butlin (1838) II Moo PCC
480

The onus of proving a will being on the party propounding it, is in general discharged by proof of
capacity, and the fact of execution; from which the knowledge of and assent to its contents by the
testator will be assumed.

[18] In Gan Yook Chin (P) & Anor v Lee Ing @ Chin Lee Teck Seng & Ors [2005] 2 MLJ 1 at p 12 [2004]
4 CLJ 304 at p 322, the Federal Court held:
… where the validity of a will was challenged, the burden of proving testamentary capacity and due
execution lay on the propounder of the will as well as dispelling any suspicious circumstances
surrounding the making of the will; that the onus of establishing any extraneous vitiating element
such as undue influence, fraud or forgery lay with those who challenged the will.

[19] In Thiang Kai Goh v Yee Bee Eng & Ors [2005] 1 MLJ 431, Suriyadi J (as he then was) stated at pp
436–437:
[11] Despite the burden of proof being on the shoulders of the defendants to establish the validity of
the will, at the end of the trial the plaintiff cannot escape the requirements of ss 101 and 102 of the
Evidence Act. They read:

101 Burden of proof

(iii) Whoever so desires any court to give judgment as to any legal right or liability, dependant
on the existence of facts which he asserts, must prove that those facts exist.
(iii) When a person is bound to prove the existence of any fact, it is said that the burden lies on
that person.

99
 102 On whom the burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side.

[12] Regardless of the fact that the burden has shifted to the defendants the moment the will was
challenged it is still incumbent on the plaintiff at the end of the whole case to prove his case on a
balance of probability. At the end of it all, the plaintiff to succeed must prove that the testator had no
testamentary capacity when he affixed his thumbprint to the said will.

EVALUATION AND FINDINGS

The relationship between the defendant and the deceased

[20] There is ample evidence that since the early 1960s until the deceased passed away on 11 July 2011,
over a time span of about 46 years, the defendant and the deceased had a very close and intimate
relationship, as can be seen from the abundance of evidence adduced by the defendant:
(iv) they slept together frequently in the deceased's family house, occupying one of the three rooms,
whilst the deceased's mother and siblings occupied the other two rooms;
(iv) their house at Taman Kok Lian appears to be like a matrimonial home, with their photographs,
and master bedroom with their clothes kept in the same cupboard (CBOD1 Part B p 1);
(iv) the 'funeral service purchase' form where the deceased stated her 'marital status' as 'M' ie the
abbreviation for 'married'. At the column for 'nominee' she named the defendant as her 'husband'
(CBOD 1 Part B pp 101–102);
(iv) the defendant had declared in the form, 'funeral service purchase' that the deceased is his wife;
(iv) the 'Purchase Form for Burial Plot' where the deceased had stated her 'marital status' as 'M' ie the
abbreviation for 'married', and her house as being at Taman Kok Lian (CBOD1 Part B p 107);

(iv) the form for 'Hole excavation' where the deceased had ordered a double burial chamber for the
tomb, purportedly for her and the deceased to be buried side by side as husband and wife
according to Chinese custom (CBOD1 Part B p 109); [*795] 
(iv) the society's recognition of the defendant and the deceased as husband and wife:
(v) the Chinese New Year greeting card from the defendant's employer, Datuk Amar Steven
Yong, addressed to both the defendant and deceased at the envelope as 'Mr & Mrs Low Chee
Choy' (CBOD1 Part B pp 62–63);
(vi) the letter from the defendant's and deceased's conveyancing solicitors, Messrs Chew Biman &
Co, addressed them as 'Mr & Mrs Low Chee Choy';
(vii) the condolence notices advertised in the various Chinese newspapers recognised the
defendant and the deceased as husband and wife (CBOD1 Part B pp 123–126, 129 and 130);

100
 (viii) P2 himself had honoured the defendant during the tea ceremony as his elder brother-in-law
during his marriage (CBOD1 Part B pp 57 and 58);
(ix) the defendant was honoured as the elder uncle-in-law during the Chinese customary tea
ceremony by the deceased's nephew and nieces during their marriage (CBOD1 Part B pp 53–
55). In fact, in CB0D1 Part B pp 59 and 60, the photographs show P1's own son serving tea to
the defendant and deceased during the son's wedding (see the full evidence of the defendant
regarding his alleged marital relationship with the deceased in his witness statement, DW6-
WS, from pp 15–34).

[21] The defendant admitted that his marriage with the deceased was not registered under the Law
Reform (Marriage and Divorce) Act 1976 ('the LRA').

[22] It is clear from the evidence that from 1962 until the deceased's death, the defendant and the
deceased did not go through any Chinese customary marriage by way of a tea ceremony, or had their
relationship registered as a marriage under the Civil Marriage Ordinance 1952 ('the CMO') or the LRA.
Therefore, the court finds that there is no valid, legal, and registered marriage between the defendant and
the deceased (see also my two previous decisions given in the Family Court, High Court Kuala Lumpur in
Hue Chooi Yin (P) v Chew Pit King [2011] 2 AMR 56 and Pang Kwee Yin v Teh Sew Wan [2012] 5 MLJ
225; [2012] 2 AMR 539). Similarly, there is no valid, legal, and registered marriage between the
defendant and his second wife, DW4. However, at all times the defendant held himself out as the husband
of the deceased, and also the husband of DW4.

[23] Since there is no legal marriage between the defendant and the deceased, the defendant has no legal
claim as a husband on the estate of the deceased unless the 2011 will is found to be valid and effective in
his favour.

[24] It must also be borne in mind that there is no question of the defendant's contributions to the
acquisition of the deceased's properties being considered here since such properties are not matrimonial
assets.

The 2011 will

[25] The defendant, being the propounder of the 2011 will, bears the burden of proving that:
(x) the deceased had testamentary capacity at the time when she executed the will;
(x) the will was duly executed;
(x) there were no suspicious circumstances surrounding the making of the will.

[26] Once the defendant has discharged the above burden of proof, the burden shall then shift to the
plaintiffs to prove the extraneous vitiating element such as fraud as in the present case.
Regarding (a), (b) and (c) above
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[27] The defendant (DW6) stated that at the time when the deceased executed the will on 20 June 2011,
between 1pm to 2pm, from her hospital bed at the Selayang Hospital in the ward, she was conscious and
mentally alert. She understood the nature of her act and the effects of the will. The deceased was too weak
to sign the will. Thus, the defendant, who had brought a stamp pad to the Hospital, assisted the deceased
to affix her thumbprint on the will in the presence of two witnesses ie Lim Keong Hwa @ Saw Hock
Seng ('DW2') and Teo Kah Chwi @ Chang Koh Chee ('DW3'). The court questions how would the
defendant know that the deceased on that day would be too weak to sign in execution of the will, and thus
the defendant came to the Hospital, ready with a stamp pad for her thumbprint. This appears to be rather
suspicious conduct on the part of the defendant. The evidence shows that on that day the defendant
accompanied the deceased for outpatient care at the Dermatology Clinic of the Hospital. It is rather
strange that prior to that, on the day before, ie on 19 June 2011, the defendant had arranged with the two
intended witnesses to the will, DW2 and DW3, to meet him at the Hospital to witness the deceased's
execution of the will. It appears to be all pre-planned by the defendant. 

[28] Lee Fong Ling ('DW1'), the solicitor from Messrs Lee, Kitty & Partners, gave evidence that she was
the one who prepared the 2011 will and last testament of the deceased ('the 2011 will / the will'). She
stated that the deceased and 'her husband', the defendant, were her father's friends. Sometime in May
2011, the defendant and the deceased made an arrangement for a meeting with DW1 at DW1's father's
house to discuss matters relating to the making of a will. DW1 met them at her father's house. This was
because the deceased was sick and had requested to meet DW1 at DW1's father's house, which is nearer
to the deceased's residence.

[29] DW1 stated that the contents of the 2011 will were prepared by her according to the deceased's
instructions on the assets. DW1 advised both the deceased and the defendant that the deceased would
need two witnesses on the execution of the said will. DW1 also mentioned to the deceased that she could
either sign or thumbprint the will. The deceased told DW1 that she would only execute the finalised will
and last testament at the proper time when she is ready ie at any time in the future. The deceased would
then get the witnesses to witness it.

[30] DW1 went on to state that about one week after the meeting, she had drafted and finalised the will.
The defendant came to her office to collect it.

[31] DW1 further stated that when the defendant collected the will from her office she asked him to tell
the deceased to call her. DW1 wanted to confirm with the deceased the contents of the will ie DW1
wanted to let the deceased know that these are the properties and the property particulars that the
deceased wanted to give and to whom. The telephone call was intended for DW1 to translate the
document to the deceased, which DW1 did, from English to the deceased in Cantonese.

[32] DW1 confirmed that she did not attest the will. She further agreed with counsel for the plaintiff,
during cross-examination, that the attestation clause at p 4 of the will is not correct because it is stated
therein that the testator 'signed' the will, although the will was thumbprinted, and not signed, by the
deceased.

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[33] Upon being questioned by the court, DW1 stated that there is no endorsement or record anywhere
that she had translated the contents of the will to the deceased. DW1 had only prepared one copy of the
original will and she gave that to the defendant for the deceased. She only has a photocopy which she did
not produce in court.

[34] The two witnesses to the will, DW2 and DW3, corroborated the defendant's evidence, and each
other's evidence that the deceased was conscious and aware when the deceased affixed her thumbprint on
the will in their presence, assisted by the defendant. They stated that the deceased did not sign because
she looked weak. DW3 stated that the deceased's hand was shaking.

[35] On the other hand, the Cambodian maid, Seng Mom ('PW5'), employed by the deceased's sister, Toh
Siew Leong ('PW3'), stated that on 20 June 2011 she was asked to accompany the deceased and the
defendant to the hospital. She was with the deceased all the time that day until after 7pm to take care of
the deceased. When she was with the deceased, she did not see anyone coming to the deceased's ward
with the defendant. The defendant was with the deceased for 1/4 hour and then left the hospital. PW5 was
never cross-examined whether she was in the emergency ward with the deceased. In the absence of any
rebuttal evidence, it can be safely concluded that PW5, throughout that visit to the hospital on 20 June
2011, was with the deceased until after 7pm PW5 did not see the defendant, DW2 and DW3 with the
deceased for the purported execution of the will.

[36] During the cross-examination of the defendant (DW6), counsel for the plaintiffs produced two
documents ie a statement of confirmation on the deceased's treatment (exh D1A) and statement of
admission to the patient's Ward (exh D1B) at the Selayang Hospital ('the hospital').

[37] In exh D1A, Noor Azlin bt Mohd Sharif, the Head of Department of the Medical Records
Department of the hospital, stated that based on the deceased's patient records at the hospital, the
deceased received treatment on 20 June 2011 at 11am and was admitted to the ward for general surgery,
through the Emergency Department, on the same day until 22 June 2011.

[38] In exh D1B, Norkhayati bt Mamat, the assistant administrative officer from the hospital's Medical
Records Department, confirmed that the deceased was admitted to hospital on 20 June 2011 as follows:

Bil Masa Rawatan Jabatan

1. 11.15 AM KLINIK DERMATOLOGI

2. 11.57 AM KECEMASAN

3. 7.10 PM WAD 4A (PEMBEDAHAN

AM).

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[39] After considering the evidence in totality, the court finds that exhs D1A and D1B, if accepted by the
court, would demolish the defendant's case completely. The question is whether exhs D1A and D1B can
be admitted and accepted by the court.

[40] Counsel for the plaintiffs informed the court that there was no way he could introduce exhs D1A and
D1B during the case for the plaintiffs. This is because at that stage, there was no way the plaintiffs could
know the exact time on 20 June 2011 when the will was purportedly executed by the deceased. It was
only after the plaintiffs' case had closed, including the completion of the evidence of Dr Lee Yuk Loong
('Dr Lee') (PW4) from the General Surgical Department, Selayang Hospital, and in the course of the
evidence of the two purported witnesses to the 2011 will, ie DW2 and DW3, and of the evidence of the
defendant himself ('DW6'), that it was revealed by the defendant's witnesses that the 2011 will was
executed by the deceased on 20 June 2011 between 1pm to 2pm in her ward 4A at the hospital.

[41] The subsequent notice of application filed by the plaintiffs (encl 53) to recall Dr Lee to tender further
hospital records which Dr Lee discovered after giving his evidence in court was dismissed by the court
after the hearing in chambers on 22 August 2013. However, the court did inform counsel for the plaintiffs
that he could put the plaintiffs' case through the cross-examination of the defendant's witnesses.

[42] During the trial, counsel for the plaintiffs then produced exhs D1A and D1B, during the cross-
examination of the defendant, under s 74 of the Evidence Act 1950 which provides:

Public documents

74 The following documents are public documents:

(xi) documents forming the acts or records of the acts of -
(xii) the sovereign authority;
(a) official bodies and tribunals; and
(i) public officers, legislative, judicial and executive, whether Federal or State or of any other
part of the Commonwealth or of a foreign country; and
(xi) public records kept in Malaysia of private documents.

[43] It is clear from the above s 74(a)(iii) and/or (b) that exhs D1A and D1B are public documents.

[44] In Evidence, Practice and Procedure (2nd Ed) by Augustine Paul at p 602, regarding s 74 it is stated:

Manner of proving public documents.

A public document may be proved in evidence by tendering the original or by way of a certified copy
104
 thereof. In Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1994] 1
MLJ 592 (HC) it was held that where the document is a public document the best evidence rule is
inapplicable and that secondary evidence may be adduced not only as to the existence of such
document but also as to its contents.

[45] Therefore, guided by the above, I am of the view that exhs D1A and D1B, which are original
documents of the hospital, can be admitted and accepted by this court not only as to the existence of such
documents but also as to its contents. There is no necessity for the makers of the two documents to come
to court. The contents are self-explanatory.

[46] From exhs D1A and D1B, the court finds that, as what the defendant had testified, it is true that the
deceased went for outpatient care at 11am and was at the skin clinic at 11.15am at the hospital. However,
contrary to what the defendant and DW2 and DW3 had testified when they corroborated each other's
evidence that the deceased affixed her thumbprint on the 2011 will at ward 4A between 1pm to 2pm, that
is not true because from 11.57am onwards until about 7pm, the deceased was at the Emergency
Department. The deceased was finally sent to ward 4A of the Hospital at 7.10pm on the same day, on 20
June 2011. She was discharged two days later on 22 June 2011.

[47] Since the deceased was not at ward 4A on 20 June 2011 between 1pm to 2pm, it can be safely
concluded that the deceased did not execute the 2011 will at all at the time and in the manner stated by
DW2, DW3 and the defendant. That being the case, the logical conclusion is that the 2011 will had been
forged or fraudulently obtained by the defendant, and DW2 and DW3 did not witness the execution of the
will by the deceased on 20 June 2011.

[48] Even if I were to err in admitting exhs D1A and D1B, based on the other evidence adduced, the court
is also satisfied that the 2011 will cannot be accepted as valid for the following reasons:
It is highly improbable that the deceased did in fact execute the will. The deceased was not literate in
English but she could speak Cantonese and, according to her siblings ie P1, P2 and PW3, the
deceased used to sign her documents and not thumbprint them.

[49] DW1, DW2 and DW3 stated that on 20 June 2011 the deceased was conscious and had testamentary
capacity to execute the 2011 will. However, she affixed her thumbprint, assisted by the defendant,
because she was weak.

[50] DW2 testified that when he went to the hospital, the deceased was in a four bedded room. DW2
knew that the deceased worked as a cashier and definitely she knew how to sign her name. DW2 stated
that the deceased was sick but he chatted with her. DW2 confirmed that the 2011 will was in English but
it was not translated to the deceased when she purportedly affixed her thumbprint on it, without any
struggle. DW2 informed the court that he and the deceased had a conversation before the execution of the
will. The deceased mentioned that she troubled DW2 and DW3 to come to be the witnesses, to sign the
will. DW2 further informed the court that the deceased was sitting up and leaning against the bed. She

105
was weak and sick 'even though she looked ok'. Before DW2 left, the deceased thanked DW2 to be the
witness for her signing of the will.

[51] DW3 also confirmed that the 2011 will was not read to and explained to the deceased in his
presence. He stated that he and DW2 met the defendant on 20 June 2011 at the lobby of the hospital, as
agreed by them on 19 June 2011. The defendant took DW2 and DW3 to the deceased's ward. When the
deceased first saw DW2 she had a chat with DW2 because they knew each other very well. DW3 also
greeted the deceased and spoke with her a few words in Hainanese. When asked in cross-examination
about the deceased's condition, he said that she looked fresh and she could speak. DW3 also talked to the
deceased a few words. The deceased replied him. She thanked DW3 for becoming the witness for her
will. DW3 said that the deceased did not sign the will because her hand was shaking. So they did not
agree that she should sign the will and they suggested it to her. Otherwise, the signature would be
different. The deceased did not protest. She was very conscious at that time.

[52] On the other hand, Dr Lee (PW4) testified that based on the deceased's medical records (CBOD1
Part B pp 29 to 31) on 20 June 2011, the deceased's mental condition was normal. She was conscious and
alert. On 20 June 2011 the deceased was capable of and should be able to sign a document. In fact, when
the deceased was admitted on 20 June 2011, the hospital doctor did a physical examination on her ie the
glasgow coma scale scoring for her. It consisted of three elements, namely her eye response, her verbal
response and her motor response. The deceased had full scores or full marks, which, according to Dr Lee,
the deceased was fully conscious and normal, like normal people. However, when the deceased was later
admitted again to the hospital on 4 July 2011 till 11 July 2011, her physical condition deteriorated and she
became weaker and weaker. She was under heavy sedation to make her pain free and comfortable. Dr Lee
informed the court that if a person is under sedation the conscious level would be depressed or impaired.
She might not be alert to her surroundings. The deceased passed away on 11 July 2011 in that same
physical condition from fourth stage cancer.

[53] From the above evidence, the court finds that if indeed the 2011 will was truly executed (which the
court does not think so), the deceased was certainly mentally alert and could chat with DW2 and DW3.
She certainly would have the testamentary capacity to exercise her mind to make her will. However, it is
hard to believe that she was too weak to sign the will. She scored full marks for her glasgow coma scale
scoring and would have full motor control as well. It is highly improbable that she could not sign the will.
Moreover, according to DW2 and DW3, the deceased could greet them, chat with them and thanked them
for coming. She 'looked ok' and she 'looked fresh'.

[54] The conclusion is that the deceased did not execute the will by affixing her thumbprint on it when
she was fully conscious on 20 June 2011. Otherwise she would have signed it since her motor control was
normal. There is a high probability that what the plaintiffs alleged is true ie that the deceased's thumbprint
was affixed by the defendant when the deceased was heavily sedated and not fully conscious after 20 June
2011, in the days before she passed away.

[55] The court further notes that if indeed the defendant and DW2 and DW3 are to be believed (which the
court does not) regarding the purported execution of the will on 20 June 2011 by the deceased, and if they
claimed that the deceased was too weak to sign and therefore had to thumbprint the will, then the serious
106
doubt that arises is who actually dated the will. It could not have been the deceased because, according to
the defendant and DW2 and DW3, she was purportedly too weak to sign it. One of the two witnesses to
the will dated the two signatures of the two witnesses. So, the logical conclusion is that the defendant was
the one who dated the will. That is certainly not proper or acceptable since he was not a party to the will.

[56] The court further finds it unsatisfactory that the 2011 will, being drafted in English, was not read and
translated to the deceased by a qualified translator. Even though DW1, the solicitor who prepared the will,
said that she translated the will into Cantonese over the telephone to the deceased sometime in May 2011,
the court notes that DW1 admitted that their telephone conversation was regarding the particulars of the
properties of the deceased. DW1 said that she and the deceased did not talk about the defendant being the
sole beneficiary. There is no evidence that DW1 read and translated all the contents of the will to the
deceased, word by word and line by line, in her presence, or of any endorsement or record of such
translation. DW1 confirmed that she did not attest the will for the deceased.

[57] In this respect, though the deceased was conscious and alert, it cannot be said that she had the full
understanding or testamentary capacity to execute the will since it was drafted in English and it was not
properly read and translated to her in full by DW1, or even by DW2 and DW3, or any qualified translator.
The defendant himself was not conversant in English. He testified in the Malay language in court. So he
could not have translated the will to the deceased either.

[58] Even though the Cambodian maid (PW5) was not adamant about the exact date that she
accompanied the deceased to hospital, and even though under cross-examination, she stated that the
deceased went to hospital twice, once for leg pain and once for profuse bleeding, and even though
ultimately she could have gone to the hospital to be with the deceased for more than once eg three or four
times, the fact remains that her evidence is consistent when she maintained that at the time when the
deceased was admitted to hospital on 20 June 2011 and was in the ward, she did not see anyone, other
than the defendant and her own employer (PW3), who is the deceased's sister, coming to see the
deceased. I have observed her demeanour and PW5 appears to be an honest witness, simple in her ways,
and with no guile. It is therefore highly improbable that DW2 and DW3 came to the deceased's ward on
20 June 2011 between 1pm and 2pm to witness the thumbprinting of the will by the deceased.

[59] As admitted by DW1, the attestation clause in the 2011 will is not correct because it is stated therein
that the deceased signed the will when in actual fact she did not do so.

[60] In considering suspicious circumstances in the preparation of a will, the following is an extract from
the Court of Appeal decision, Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 MLJ 97; [2002] 4 CLJ
90 where at p 103(MLJ); 96 (CLJ) Gopal Sri Ram JCA (as he then was) referred to Theobald on Wills
(15th Ed) at p 36 under the heading, 'suspicious circumstances':
If a will was prepared and executed under circumstances which raise a well-grounded suspicion that
the will (or some provision in it, such as the residuary gift) did not express the mind of the testator,
the will (or that provision) is not admissible to probate unless that suspicion is removed by
affirmative proof of the testator's knowledge and approval. A classic instance of suspicious
circumstances is where the will was prepared by a person who takes a substantial benefit under it.

107
 Another instance is where a person was active in procuring the execution of the will under which he
takes a substantial benefit by, for instance, suggesting the terms of the will to the testator and
instructing a solicitor chosen by that person.

[61] The above describes aptly what actually transpired in the execution of the will in the present case.

[62] After weighing the evidence in totality, my conclusion is that the 2011 will was not executed by the
deceased on 20 June 2011 between 1pm and 2pm at the hospital. The deceased had the testamentary
capacity to execute the will in that she was normal and strong enough to execute the will. However, the
will in English was not translated in full to her. Thus, she did not have the full understanding or
testamentary capacity regarding the contents of the will in toto. There was no necessity for her to
thumbprint her will because she was physically able to do it. The circumstances surrounding the making
of the will are far too suspicious for the court to believe the defendant and DW2 and DW3 that the
deceased did execute the will as alleged by them, making the defendant the sole beneficiary of all the
properties of the deceased to the total exclusion of the plaintiffs and the deceased's other siblings whom
the deceased loved.

[63] The court finds that the defendant appears to have a propensity to disregard the requirements of the
law that bind him. He chose not to register his purported marriage with the deceased, and he further
'married' a second time DW4 as his second wife during the continuance of his purported first marriage
with the deceased. He also chose not to register his second marriage under the law, and fathered two
children with DW4. It is therefore highly probable that he caused the 2011 will to be thumbprinted by the
deceased when she was highly sedated, in the few days before she died, and later got the assistance of his
two friends, DW2 and DW3, to sign as the witnesses to the will, without regard to the law on the making
of a valid will.

The 1984 will

[64] Counsel for the defendant submitted that the plaintiffs, being the propounder of the 1984 will ('the
will') did not discharge the burden of proving that the deceased had the testamentary capacity to execute
the will and that there were no suspicious circumstances surrounding the execution of such will.
Moreover, the two witnesses to the will were not called to testify in court on the matter.

[65] With respect, the court disagrees with the above submission. It is to be noted that the 1984 will
(CBOD1 Part B pp 1–4) has been agreed by both parties during the case management stage, that this
document is classified as a Part B document. This means that the authenticity, or the making of the will,
was not disputed from the outset. Therefore, the maker of the will and the two witnesses to the execution
of the will are not required to come to court to testify on the authenticity of the will. However, counsel for
the defendant is at liberty to cross-examine the plaintiffs' witnesses on the contents of the 1984 will.

[66] The 1984 will was produced by P1. Neither P1, P2 or PW3, PW6, PW7 and PW8 were cross-
examined on the contents of the will. In the absence of any challenge by the defendant on the contents of
108
the will, the Court accepts the contents of the 1984 will as being unrebutted. Neither did the defendant
produce any other witness, other than the defendant, to dispute the contents of the 1984 will.

[67] From the evidence of the plaintiffs, PW3, PW6, PW7 and PW8, it is clear that the deceased, being
the eldest sister of her younger siblings, had always loved, cared for and provided for them. The deceased
gave the titles of the properties to P1 for safe-keeping (CBOD1 Part A pp 1–10). Way back in the early
1980s, the deceased told P1 that if she died her properties must be distributed among her siblings. To
ensure this, she asked P1 to keep the titles for her. Since then, P1 had been keeping the titles for the
deceased. P1 also informed the court that the deceased told her that she was disappointed when the
deceased married again and although she and the defendant remained together they had big fights. This
evidence was not rebutted by the defendant.

[68] In 1984, the deceased told P1 that she had written a will through a lawyer. She gave P1 an envelope
and told P1 to keep it safely. P1 has kept it all these years, together with the property titles.

[69] The deceased told P1 that she had bequeathed her various properties to plaintiffs and her other
siblings. This is consistent with the contents of the 1984 will.

[70] The deceased told P1 that she had nominated P1 and her brother Toh Cheong ('PW8') equally for her
EPF. The confirmation of the EPF nomination is in CBOD1 Part A p 11.

[71] According to P1, the deceased kept reminding P1 in all the years that P1 has a duty to see that when
the deceased died, P1 was to make sure that the deceased's 1984 will is followed exactly, as it was her last
wish.

[72] The deceased's two friends, Liw Kim Lan ('PW6') and Lim Chin Goon ('PW7') informed the court
that they were both respectively told by the deceased after she became ill that she had bequeathed her
properties to her siblings. As submitted by counsel for the plaintiffs, these are independent witnesses,
with no ulterior motive to lie.

[73] P2 confirmed that at no time did the deceased change her 1984 will. After the deceased's death, P1
produced the envelope that the deceased gave her. The plaintiffs went to see a lawyer to seek advice. The
envelope was opened and the 1984 will was inside. 

[74] PW3 testified that after the deceased became ill, she moved in with PW3 into the Taman Kepong
house. PW3 was looking after the deceased most of the time. PW3 did not think that the deceased would
change her 1984 will without telling her siblings because the deceased was like a mother to her younger
siblings. If she did, the deceased would have told PW3.

[75] From the testimonies of the plaintiffs and the deceased's other siblings, in view of the natural love
and affection that the deceased had for her siblings, it is nothing suspicious, and in fact it is only logical,

109
that in 1984 the deceased would have made all her siblings as the beneficiaries of all her properties in her
1984 will.

[76] At this point, it is to be noted that when DW1 prepared the 2011 will for the deceased, the deceased
told DW1 that she did not wish to sign it yet. The deceased said that she would only do so in the future
when she was ready, and even then she would get her witnesses. This shows that the deceased had
hesitation and a reluctance to execute the 2011 will.

[77] From an overall evaluation of the evidence adduced, it is highly probable that the deceased finally
did not sign the 2011 will, leaving therefore the 1984 will as her last will and last testament.

DECISION

[78] Going by the above considerations, the plaintiffs' claim is allowed as follows:

Prayers 17 (i) and (ii) of the plaintiffs' claim in the SOC are allowed.

Costs of RM10,000 are to be paid by the defendant to the plaintiffs jointly under prayer 17 (v), but no
costs are to be awarded under prayer 17 (iv).

There is no order for prayers 17 (iii) and (iv) of the SOC since they have been appropriately
withdrawn by counsel for the plaintiffs for the reason that the claim for the granting of probate for
another will, ie the 1984 will, cannot be made by this court since 0 71 of the ROC has yet to be
invoked (see para 2 of plaintiffs' reply submissions).

There is no order as to interest on the costs under prayer 17 (vi).

This claim is limited to only the citation given by the court dated 6 August 2012 in respect of the
grant of probate extracted under the Kuala Lumpur High Court Petition No 32NCVC-09 of 2011
regarding the 2011 will which was deposited in court for the purpose of having it revoked. 

Plaintiff's claim allowed.

Reported by Kanesh Sundrum

End of Document

110
111
 PART II : BANKRUPTCY AND WINDING-UP

7. RE TAN HWEE EARN; EX P THE PEOPLE' S INSURANCE CO (M) SDN BHD [1999] 4 MLJ
248
Malayan Law Journal Reports · 8 pages
HIGH COURT (KUALA LUMPUR)
STEVE SHIM J
BANKRUPTCY NO D5–29–2355 OF 1996
10 May 1999
Case Summary

Bankruptcy — Creditor's petition — Whether application premature — Whether there was obligation to
serve creditor's petition together with affidavit — Whether creditor's petition was wrongly titled —
Bankruptcy Act 1967 ss 3(1), (2), 6(1) & 131 — Bankruptcy Rules 1969 rr 95, 106 & 109

Bankruptcy — Notice — Whether judgment was final — Whether debtor had established existence of
counterclaim/cross demand — Bankruptcy Act 1967 s 3(1)(i)

On 30 January 1996, the creditor obtained a judgment in default against the debtor. A bankruptcy notice ('the
BN') was filed on 23 August 1996. On 8 November 1996, the BN was served on the debtor. The debtor
responded by filing a summons-in-chambers (encl 14) to set aside the BN on 15 November 1996 which was
supported by an affidavit. The creditor then filed a creditors petition ('the CP') on 11 December 1996 together
with the affidavit of truth of statements affirmed by one Song Knee Nyok on the same date. The CP was served
on the debtor on 17 December 1996. Thereafter, the debtor filed an application to strike out and/or set aside the
CP vide a summons-in-chambers (encl 11) dated 3 April 1997 supported by an affidavit. Both the applications
were heard by the senior assistant registrar who dismissed encl 14 but allowed encl 11. Hence the two appeals
herein.

The debtor's application to set aside the BN was based on two grounds, namely: (i) that the judgment was not a
final judgment within the meaning of s 3(1)(i) of the Bankruptcy Act 1967 ('the Act'); and (ii) in any event, the
debtor had established the existence of a counterclaim/cross demand under s 3(1)(i) of the Act which would
entitle him to have the BN set aside. In respect of encl 11, the three grounds raised by the debtor were: (i) the
title to the CP should be 'Petisyen Sipiutang' (Creditor's Petition) and not 'Permohonan Sipiutang' (Creditor's
Application); (ii) the debtor has alleged that the CP was not served together with the affidavit verifying the
contents of the CP; and (iii) the CP was premature as at the time it was presented; the debtor had already filed an
application to set aside the BN within the seven day period prescribed by r 95 Bankruptcy Rules 1969 and
therefore no act of bankruptcy was deemed to have been committed under the notice until the application had
determined.
Held:
(4) The creditor's claim against the debtor was for a liquidated amount and the debtor had defaulted in failing to
appear in court [*249] 

112
 to counter the claim in Civil Suit No D5–22–145–1995. The judgment in default would constitute a final
judgment for the sum claimed by the creditor against the debtor in this case (see p 253F); Adzmi bin Ali & Anor
v Mohamed Isa bin Kasad [1987] 2 MLJ 199 followed.
(5) Although the affidavit supporting the summons-in-chambers filed by the debtor was filed within the time frame
provided under s 3(1)(i) of the Act, it did not however allude therein that the debtor had a counterclaim, set-off
or cross demand which would equal or, exceed the amount of the judgment or sum ordered to be paid and which
he could not set up in the action in which the judgment was obtained or in the proceedings in which the order
was obtained and therefore had not complied with the requirement under s 3(1)(i) of the Act and with r 95 of the
Rules. Applying the Supreme Court in Datuk Lim Kheng Khim v Malayan Banking Bhd [1993] 2 MLJ 298, it
must be treated as if no affidavit had been filed for the purpose of this application (see p 254D–F).
(6) The debtor, in filing the summons-in-chambers (encl 14) together with the supporting affidavit had, in effect,
disputed the sum stated in the BN. If it was intended to rely on s 3(2) proviso (ii) of the Act, there would still be
a need to give a seven-day notice (see p 254F–H); Malayan Banking Bhd v Datuk Lim Kheng Khim [1992] 2
MLJ 540 followed.
(7) For the purpose of the CP, 'Petisyen Sipiutang' or the term 'Permohonan Sipiutang' means the same thing (see p
255B). As there was no statutory obligation on the part of the creditor under s 6(1) read with r 109 to serve the
CP together with the affidavit of truth of statements in the petition affirmed by Song Knee Nyok, there could
therefore be no violation of the provisions thereof (see p 256C–D); Re Yap Kin; ex p United Malayan Banking
Corp Bhd [1996] 5 MLJ 355 and Re Dato Othman Bokhari; ex p Diners Club (M) Sdn Bhd [1998] 4 CLJ Supp
315 followed.
(8) As the debtor failed to comply with the provisions of s 3(1) and (2) of the Act read with r 95 of the Rules, it must
be treated as if no application by way of affidavit had been made. The so-called application by way of summons-
in-chambers (encl 14) was therefore a non-starter (see p 256F).

Notes

For cases on creditor's petition, see 1 Mallal's Digest (4th Ed, 1998 Reissue) paras 1626–1635.

For cases on notice, see 1 Mallal's Digest (4th Ed, 1998 Reissue) paras 1699–1816.
Cases referred to

Adzmi bin Ali & Anor v Mohamed Isa bin Kasad [1987] 2 MLJ 199

Datuk Lim Kheng Khim v Malayan Banking Bhd [1993] 2 MLJ 298

Dato Othman Bokhari, Re; Ex p Diners Club (M) Sdn Bhd [1998] 4 CLJ Supp 315

Haroun Al-Rashid Bin Mohd Yusof, Re; ex parte Daya Leasing Sdn Bhd [1996] 5 MLJ 317
 [*252] 

Malayan Banking Bhd v Datuk Lim Kheng Khim [1992] 2 MLJ 540

Ooi Thean Chuan v Banque Nationale de Paris [1992] 2 MLJ 526

Udos ak Riging, Re; ex p Seabanc Kredit Sdn Bhd [1994] 3 MLJ 383

Yap Kin, Re; ex p United Malayan Banking Corp Bhd [1996] 5 MLJ 355
Legislation referred to
113
Bankruptcy Act 1967 ss 3(1), (i), (2), 6(1), 131

Bankruptcy Rules 1969 rr 95, 106, 109, 117

Azlan Sulaiman ( Ghazi & Lim) for the appellant.

CK Yeoh ( Othman Hashim & Co) for the respondent.

STEVE SHIM J

: There are two appeals before me — one by the debtor against the decision of the learned senior assistant
registrar in dismissing his application in encl 14 to set aside the bankruptcy notice (BN) and the other by the
creditor against the decision of the learned senior assistant registrar in allowing the debtor's application in encl
11 to strike out or set aside the creditors petition (CP).

The background to these appeals can be briefly stated herein. On 30 January 1996, the creditor obtained a
judgment in default against the debtor for the sum of RM1.5m with interest at 8% pa from 1 October 1994 until
full and final settlement. Pursuant thereto, the creditor-initiated bankruptcy proceedings against the debtor by
filing a request to issue bankruptcy notice and accordingly a bankruptcy notice was filed on 23 August 1996. On
8 November 1996, the said bankruptcy notice was served on the debtor. The debtor responded by filing a
summons-in-chambers to set aside the BN on 15 November 1996 supported by an affidavit affirmed by the
debtor on 14 November 1996. The creditor then filed a CP on 11 December 1996 together with the affidavit of
truth of statements affirmed by one Song Knee Nyok on the same date. The CP was served on the debtor on 17
December 1996. Thereafter, the debtor filed an application to strike out and/or set aside the said CP vide a
summons-in-chambers dated 3 April 1997 supported by an affidavit. The debtor also filed a notice of intention to
oppose petition pursuant to r 117 of the Bankruptcy Rules ('the Rules') on 7 April 1997. These applications were
opposed by the creditor who filed two affidavits in reply. The debtor then responded by filing two further
affidavits in reply, one in respect of his intention to oppose the CP and the other in respect of his opposition to
the BN. As I have said before, both the applications were heard by the learned senior assistant registrar who
dismissed encl 14 but allowed encl 11. Hence the two appeals herein.

Let me begin with the debtor's appeal. Here, there was an application by the debtor to set aside the BN primarily
on two grounds namely: (1) that the judgment was not a final judgment within the meaning of s 3(1)(i)
Bankruptcy Act 1967 ('the Act') upon which the creditor founded the BN; [*253] 
and (2) that in any event, the debtor had established the existence of a counterclaim/cross demand under s 3(1)(i)
aforesaid which would entitle him to have the BN set aside.

In respect of the first ground, counsel for the debtor has submitted that the debtor had lodged an appeal against
the default judgment dated 30 January 1996 and that it was not a final judgment because it was not a judgment
on the merits or one which would finally dispose of the rights of the parties until the appeal to the Court of
Appeal had been disposed of. In this connection, he has relied on the case of Re Udos ak Riging, ex p Seabanc
Kredit Sdn Bhd [1994] 3 MLJ 383 where the creditor obtained a default judgment against the debtor who then
applied to have the judgment set aside. With respect, I think the Federal Court case of Adzmi bin Ali & Anor v

114
Mohamed Isa bin Kasad [1987] 2 MLJ 199 cited by counsel for creditor, is more in point. There, it was held that
if the claim was for a debt or liquidated sum and the defendant defaulted in entering appearance, final judgment
for the sum could be entered against him. Seah SCJ said inter alia at p 200:
Now, when a defendant fails to enter an appearance to a writ for an unliquidated sum, the plaintiff may enter
interlocutory judgment against him for damages to be assessed (see O 13 r 2 of the Rules of the High Court
1980). On the other hand, if the claim of the plaintiff is for a liquidated amount and the defendant defaults in
entering an appearance within the specific time, final judgment for the sum claimed may be entered against
him(see O 13 r 1(1)). The court may, on such terms as it thinks just, set aside or vary any judgment entered in
pursuance of this Order (see O 13 r 8). In our opinion, the word 'judgment' in O 13 r 8 means a 'final' judgment
under O 13 r 1(1) or an 'interlocutory' judgment under O 13 r 2 thereof. (Emphasis added).
In my view, the parts italised above are particularly significant to the present case because the creditor's claim
against the debtor was for a liquidated amount and the debtor had defaulted in failing to appear in court to
counter the said claim in Civil Suit No D5-22-145-1995. In such a situation, applying the dictum of the Federal
Court in Mohamed Isa bin Kasad, the judgment in default would constitute a final judgment for the sum claimed
by the creditor against the debtor in this case. In the circumstances, I must hold that the first ground relied on by
the debtor has no merit.

As regards the second ground advanced by the debtor that he had established satisfactorily the existence of a
counterclaim or cross demand against the creditor under s 3(1)(i) Bankruptcy Act which would entitle him to
have the BN set aside, he has drawn the court's attention to a Civil Suit No S2–22–480–1996 brought by him
against the creditor, the particulars of claim are more specifically stated in cl 4.1 of his affidavit affirmed on
25 June 1998 which reads:
Melalui Mahkamah Tinggi Kuala Lumpur Guaman No S5-22-480-1996 (Guaman Sivil 5), saya menuntut dari
pemiutang sejumlah wang sebanyak RM1,633,064.30 berserta faedah pada 8% setahun dari 30 Jun 1994 hingga
penyelesaian, iaitu satu jumlah yang jelas melebihi jumlah yang dihakimkan pada 30 Januari 1996 terhadap saya
dalam Mahkamah Tinggi Kuala Lumpur Guaman Sivil D5-22-145-1995 (Guaman Dagang 5) dan juga jelas
melebihi [*254] 
jumlah yang dituntut oleh pemiutang melalui notis kebankrapan bertarikh 23 Ogos 1996 (notis kebankrapan
tersebut).
In rebuttal, counsel for the creditor has raised a procedural point contending, in effect, that the debtor could not
rely on his affidavit affirmed on 25 June 1998 for non-compliance with s 3(1)(i) Bankruptcy Act and r 95
Bankruptcy Rules 1969. The application of the said section and rule has been adequately explained by Abdul
Hamid JC (as he then was) in Malayan Banking Bhd v Datuk Lim Kheng Khim [1992] 2 MLJ 540 when he said
at p 552:
The law as I understand it is, if a judgment debtor intends to satisfy the court that there is a counterclaim, set-off
or cross-demand, he must file an affidavit within seven days of the service of the bankruptcy notice on him — s
3(1)(i) and r 95. Similarly, if he intends to dispute the sum stated in the bankruptcy notice as the amount due, he
has to give notice to that effect (usually by affidavit), also within seven days — s 3(2) proviso (ii) and r 95. If he
intends to object to the bankruptcy notice on other grounds, then he has to do it by way of a motion and the
seven-day period is not applicable.
In the instant case, although the affidavit supporting the summons-in-chambers filed by the debtor was filed
within the time frame provided under s 3(1)(i), it did not however allude therein that the debtor had a
counterclaim, set-off or cross demand which would equal or, exceed the amount of the judgment or sum ordered
to be paid and which he could not set up in the action in which the judgment was obtained or in the proceedings
in which the order was obtained and therefore had not complied with the requirement under the said s 3(1)(i) of
the Act and with r 95 of the Rules. The allusion to the existence of a counterclaim, set-off or cross demand was
115
only deposed to in the debtor's subsequent affidavit, filed on or about 25 June 1998, well beyond the time frame
allowed for under s 3(1)(i) of the Act and hence, again, there was non-compliance of the same. In the
circumstances, on the authority of the Supreme Court in Datuk Lim Kheng Khim v Malayan Banking Bhd [1993]
2 MLJ 298, it must be treated as if no affidavit had been filed for the purpose of this application.

Now, it would seem that the debtor, in filing the summons-in-chambers (encl 14) together with the supporting
affidavit had, in effect, disputed the sum stated in the BN by deposing (1) that the debtor had a defence on the
merits and (2) that the interest of 8% pa imposed on the judgment was wrong in law. If it was intended to rely on
s 3(2) proviso (ii) of the Act, there would still be a need to give seven days notice (see Malayan Banking Bhd v
Datuk Lim Kheng Khim). There is no indication that the debtor had done so.

For the reasons stated, I am of the view that the second ground advanced by the debtor holds no water and I
reject it accordingly. In the circumstances, having also rejected the first ground raised by the debtor, the only
conclusion which can be reached is that there is no merit in the application at encl 14. I therefore uphold the
decision of the learned senior assistant registrar and dismiss this appeal with cost.

I come now to the creditor's appeal, which, as I have said, is against the decision of the learned senior assistant
registrar in allowing the debtor's [*255] 
application in encl 11 to strike out or set aside the creditors petition (CP). There are essentially three grounds
raised by the debtor in encl 11.

The first ground relates to the allegation that the CP was wrongly entitled. More specifically it has been alleged
that the title to the CP should be 'Petisyen Sipiutang' and not 'Permohonan Sipiutang'. The short answer to this is
that the malay version of the rules, ie 'Kaedah-Kaedah Kebankrapan' published by the International Law Book
Services has used the term 'Permohonan Sipiutang' in such a petition. In any event, I do not think it makes much
difference whether the term 'Petisyen Sipiutang' or the term 'Permohonan Sipiutang' is used. They mean the same
thing for the purpose of the CP. Perhaps because of this, counsel for the debtor has not taken issue of it in this
appeal.

In propagating the second ground, the debtor has alleged that the CP was not served together with the affidavit
verifying the contents of the said CP thereby contravening the provisions of s 6(1) of the Act, which stipulates:
A creditor's petition shall be verified by affidavit of the creditor or of some person on his behalf having
knowledge of the facts, and shall be served as prescribed.
According to counsel for the debtor, the words 'and shall be served as prescribed' refer to both the petition and
the affidavit. He has also relied on the authority of Re Haroun Al-Rashid Bin Mohd Yusof; ex p Daya Leasing
Sdn Bhd [1996] 5 MLJ 317 in which the creditor was alleged to have failed to serve the verifying affidavit with
the creditor's petition. It was held that s 6(1) Bankruptcy Act and r 106 Bankruptcy Rules were mandatory and
therefore the failure to serve the affidavit verifying the petition on the judgment debtor could not be taken as
mere irregularity that could be cured. There was also reliance on Ooi Thean Chuan v Banque Nationale de Paris
[1992] 2 MLJ 526.

In response to the above contention, counsel for the creditor submits that the court in Re Haroun Al-Rashid had
wrongly applied Ooi Thean Chuan which merely decided the issue of whether the petition had to be attached to
or tied to or bound to the verifying affidavit when the petition was filed and the court there held that the
verifying affidavit prescribed by r 106 was Form 11 which required the said petition to be so annexed to or
116
bound to or attached to or joined to or affixed to or stapled to the verifying affidavit so as to avoid any dispute as
to what was being verified and failure to do so, would make the petition irregular and not curable by s 131
Bankruptcy Act. He went on to submit that since the issue to be decided in Re Haroun Al-Rashid was whether it
was essential to serve the petition together with the verifying affidavit, the principle enunciated in Ooi Thean
Chuanhad no application to the present case. Counsel contends that the correct statement of the law was laid
down in Re Yap Kin; ex p United Malayan Banking Corp Bhd [1996] 5 MLJ 355. He also relies on Re Dato
Othman Bokhari; ex p Diners Club (M) Sdn Bhd [1998] 4 CLJ Supp 315. InRe Yap Kin, it was held obiter that it
was not necessary to serve the verifying affidavit together with the petition since r 109 of the Rules did not
mention the need to do so. [*256] 
And in Re Dato Othman Bokhari, it was held that there was no requirement under the Bankruptcy Act or the
Bankruptcy Rules that the verifying affidavit needed to be served and that the only document required to be
served under s 6(1) of the Act was the petition.

Now, I think the wordings in s 6(1) of the Act are sufficiently clear and precise. It simply means that a creditor's
petition has to be verified by affidavit of the creditor and has also to be served as prescribed. And the relevant
provision for service is prescribed under r 109 of the Rules which stipulates:
A creditor's petition shall be personally served and service shall be effected by an officer of the court or by the
creditor or his solicitor or a person in their employment by delivering a sealed copy of the petition to the debtor.
In construing s 6(1) of the Act, I am inclined to accept the position taken in Re Yap Kinand Re Dato Othman
Bokhari. In the instant case, as there was no statutory obligation on the part of the creditor under s 6(1) read with
r 109 to serve the CP together with the affidavit of truth of statements in the petition affirmed by Song Knee
Nyok, there could therefore be no violation of the provisions thereof. In the circumstances and for the reasons
stated, I find no merit in the second ground advanced by counsel for the debtor.

In canvassing the third ground, counsel for the debtor has submitted that the CP was premature. It is his
contention that at the time the CP was presented, the debtor had already filed an application to set aside the BN
within the seven-day period prescribed by r 95 Bankruptcy Rules and therefore no act of bankruptcy was deemed
to have been committed under the notice until the said application had been heard and determined. This point
was indirectly raised by counsel for the debtor in his appeal earlier. Therein, I held that because of his failure to
comply with the provisions of s 3(1) and (2) of the Act read with r 95 of the Rules, it must be treated as if no
application by way of affidavit had been made. The so-called application by way of summons-in-chambers was
therefore a non-starter. In the circumstances, I hold that the third ground has no merit whatsoever.

For the reasons stated, I must, with respect, disagree with the decision of the learned senior assistant registrar in
allowing the debtor's application in encl 11. Accordingly, I think it is fair and appropriate to allow the creditor's
appeal with cost.
Creditor's appeal allowed.
Reported by Benjamin Yong

End of Document

117
 8. RE AISHA ZAINAB MAHMUD-FAIRBAIRN; EX P IAN BENJAMIN FRASER & ORS [1999] 1
MLJ 644
Malayan Law Journal Reports · 5 pages

HIGH COURT (KUALA LUMPUR)

ABDUL AZIZ J
BANKRUPTCY NO D2–29-1317 OF 1997
29 January 1999
Case Summary

Bankruptcy — Notice — Application to set aside — Notice defective — Whether notice was defective to
warrant tahat it be set aside

A judgment ('the first judgment') obtained by the judgment creditors against the judgment debtor was entered on
the wrong date; ie it should have been 30 December 1996 instead of 13November 1996, but none of the parties
noticed it. Consequently, the senior assistant registrar assessed the general damages awarded in the first
judgment ('the second judgment'). On 9 June 1997, a bankruptcy notice was filed and served on the judgment
debtor on 24 July 1997. On 4 September 1997, the judgment debtor filed an application for extension of time to
apply for the setting aside of the judgments for the reason that the first judgment was irregular and that since the
second judgment was based on the first judgment, the second judgment was irregular too. This prompted the
judgment creditor to apply for amendment of the judgments. On 7 October 1997, the judgment debtor applied to
set aside the bankruptcy notice on grounds that the judgments were irregular and that the amount for interest in
the notice was excessive. The learned senior assistant registrar dismissed the application to set aside the
bankruptcy notice and allowed the judgments to be amended. Hence the judgment debtor appealed and advanced
two reasons: (i) the judgment creditor had not obtained a final judgment as stipulated by s 3(1)(i) of the
Bankruptcy Act 1967; and (ii) the notice claimed an amount of interest that exceeded an amount actually due.
Held, dismissing the appeal:

(9) The second judgment was certainly a final judgment and not an interlocutory judgment. It was a final judgment
because it disposed of the rights between the parties. The fact that it contained an error that required amendment
did not render it any the less a final judgment (see p 648D); Re Seah Kim Khoo George, exp Mary Seah [1989] 3
MLJ cxxvi distinguished.
(10) Proviso (ii) to s 3 of the Act provides that a bankruptcy notice 'shall not be invalidated by reason only
that the sum specified in the notice as the amount due exceeds the amount actually due unless the debtor within
the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground
of such mistake'. The time allowed should be within seven days after the date of service of the bankruptcy notice.
No such notice was given (see p 648E–F). [*645] 

Notes

For cases on defective notice, see 1 Mallal's Digest (4th Ed, 1998Reissue) paras 1718-1719.
Cases referred to
118
Seah Kim Khoo George, Re; ex p Mary Seah [1989] 3 MLJ cxxvi
Legislation referred to
Bankruptcy Act 1967 s 3(1)(i), (2)(ii)
Aneeta Kulasegaran ( Ranjit Thomas & Kula) for the judgment creditors.
S Ragu (with Ashok K Raman) ( Abu Talib Shahrom & Zahari) for the judgment debtor.

ABDUL AZIZ J

By this appeal, the judgment debtor seeks to have set aside a judgment notice served on her. The judgment notice
was based on a judgment obtained by the judgment creditors against her and two others in Civil Suit No D3– 22–
638–96, where the judgment creditors were plaintiffs and the judgment debtor and the two others were
defendants. The events leading to the judgment in that civil suit and to the issue of the bankruptcy notice are as
follows.

On 21 December 1996, the plaintiffs' solicitors wrote to the defendants' solicitors giving them notice to file their
statement of defence within seven days, otherwise the plaintiffs (the judgment creditors here) would enter
judgment in default of defence.

On 30 December 1996, the plaintiffs' solicitors filed the judgment in default. By an innocent error, it bore the
date 13 November instead of 30December as the date of the judgment. The judgment was for a liquidated sum of
RM318,641 as special damages, for general damages, for interest at 8% per annum from the date of judgment
until full settlement, and for costs of RM225.

I shall refer to it as the first judgment. I should like to emphasize at the outset that it was a judgment actually
entered on 30 December 1996 but wrongly stated as entered on 13 November 1996. There was in fact no
judgment entered on 13 November 1996.

The first judgment was served on the defendants' solicitors on 21January 1997.

On 22 April 1997, the learned senior assistant registrar assessed the general damages awarded in the first
judgment at RM12,530,711. That sum, plus the sum of RM318,641 in the first judgment, came to
RM12,849,352. Taking into account the first judgment, on 22 April 1997 the learned senior assistant registrar
adjudged that the defendants do pay RM12,849,352 with interest at 8% per annum from the date of the first
judgment and costs of RM225. I shall refer to the judgment of 22 April [*647] 
1997 as the second judgment.When the draft of the second judgment was prepared, it perpetuated the error in the
first judgment by stating that it was obtained on 13 November 1996 and expressing the 8% interest to be as from
that date.

On 29 April 1997 the draft of the second judgment was served on the defendants' solicitors for approval. Had the
defendants' solicitors then recalled the letter of the plaintiffs' solicitors dated 21 December 1996 mentioned
earlier, they would have realized that the date of the first judgment could not have been 13 November 1996 and
the interest could not have run from that date but only from some date after 21 December 1996.

119
On 9 June 1997 the plaintiffs, as judgment creditors, filed a bankruptcy notice against the judgment debtor, one
of the defendants. The notice was based on, and was in conformity with, the second judgment. The amount
claimed was the judgment sum of RM12,849,352, interest of RM585,789.56, being interest on the judgment sum
at 8% per annum from 13 November 1996 until 9 June 1997, and costs of RM225. The sums totalled
RM13,435,366.56. The bankruptcy notice was served on the judgment debtor on 24 July 1997.

On 4 September 1997, the judgment debtor and the two other defendants filed an application for extension of
time to apply for the setting aside of the two judgments. The reason for setting aside that they gave in their
affidavit was that the first judgment was irregular because, although on 21 December 1996 the judgment
creditors' solicitors had threatened to enter judgment in default if the defence was not filed within seven days, the
judgment in default had already been obtained, dated 13 November 1996. Since the second judgment was based
on the first judgment, the second judgment was also irregular.

Becoming aware from that application of the error as to the date, on 25September 1997 the judgment creditors
filed an application to amend the two judgments so as to reflect truly that the first judgment was entered on 30
December 1996 and not 13 November 1996. With the amendment, the interest would run from 30 December
instead of 13 November. The unsealed copy of the application and the affidavit in support of it were served on
the judgment debtor's solicitors on 26 September 1997.

On 7 October 1997 the judgment debtor applied for the striking out of the bankruptcy notice on two grounds.
One was that the very fact that there was a need to amend showed that the two judgments were irregular. The
other was that since interest was computed from 13 November 1996, when it should have been from 30
December 1996, the amount of RM585,789.56 for interest demanded in the bankruptcy notice was excessive.
According to learned counsel for the judgment debtor, this application was prompted by the judgment creditors'
application to amend the two judgments.

On 20 February 1998, the learned senior assistant registrar dismissed the judgment debtor's application for the
striking out of the bankruptcy notice.Hence this appeal. [*648] 

On 26 February 1996, the judgment creditors' application to amend the two judgments was allowed after full
argument.

In this appeal two reasons were advanced in submission by learned counsel for the judgment debtor why the
bankruptcy notice should be set aside.

The first reason is that the judgment creditors had not obtained a final judgment, as stipulated by s 3(1)(i) of the
Bankruptcy Act 1967, on which to issue the bankruptcy notice, which was based on the second judgment. The
reason advanced for saying that the second judgment was not a final judgment was the need to amend it on
account of the erroneous date. Learned counsel for the judgment debtor relied onRe Seah Kim Khoo George, ex
p Mary Seah [1989] 3 MLJ cxxvi and the authorities cited therein, which concerned the question of whether a
judgment or order was final or interlocutory. Those authorities have no bearing on the question that arises here,
which is not a question of whether the second judgment was final or interlocutory but a question of amending the
judgment to correct an error. The second judgment was certainly not an interlocutory judgment. It was a final
judgment because it finally disposed of the rights between the parties. In my opinion the fact that it contained an
error that required it to be amended did not render it any the less a final judgment.
120
The second reason is that the judgment notice claimed an amount of interest that exceeded the amount actually
due. That is true, but proviso (ii) to s 3 of the Act provides that a bankruptcy notice 'shall not be invalidated by
reason only that the sum specified in the notice as the amount due exceeds the amount actually due unless the
debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice
on the ground of such mistake'. According to the proviso, the judgment debtor should have given such notice
within seven days — the time allowed for payment — after 24 July 1997, the date of service of the bankruptcy
notice. No such notice was given, and according to the clear words of the proviso the bankruptcy notice shall not
be invalidated merely on account of the excessive interest. The judgment creditors will be applying for
amendment of the amount of interest demanded in the bankruptcy notice.

Learned counsel for the judgment debtor proposed that where a judgment debtor, on the date when the judgment
notice was served on him, was not aware of the fact of excessive demand — as the judgment debtor in this case
claims — the period of notice should run from the date when he first became aware of it.

In my view, the clear words of the proviso do not admit of such a proposition. The effect of the proviso is to
place on a judgment debtor the burden of verifying the correctness of the demand in the judgment notice in all
respects within the seven days. If he does not trouble to verify it or if, even after doing his utmost, he fails to
detect an excessive demand and therefore does not give the notice as to the excess within the time allowed for
payment, he loses his right to have the bankruptcy notice invalidated by reason only of excessive demand. Of
course, if the demand is truly [*649] 
excessive, he is entitled to have the amount corrected so that he will not be liable for more than is due, but he is
precluded from invalidating the bankruptcy notice.

Even if the proposition of learned counsel for the judgment debtor can be accepted, on the facts it avails her
nothing. When she applied on 4September 1997 for extension of time to apply for the setting aside of the two
judgments, she had been served with the bankruptcy notice. The application of 4 September 1997 was founded
on the realization that there could not have been a judgment in default entered on 13 November 1996. Yet a
judgment in default had been entered, which could have been entered only after the letter of the judgment
creditors dated 21 December 1996. From that she would have known that she had been charged excessive
interest from 13 November 1996 in the bankruptcy notice. Taking her application dated 7 October 1997 for the
setting aside of the bankruptcy notice to be the notice required by the proviso, that was one month after she
became aware of the excessive demand on 4 September 1997, more than seven days, the time allowed for
payment stipulated by the proviso.

That the judgment debtor knew of the excessive interest on 4September 1997 is admitted by her in para 10 of her
affidavit dated 24 April 1998 where she says: 'I verily believe that it was just before 4September 1997, that I had
reason to believe that the above referred to judgments were incorrectly dated, claimed excessive interest and
were irregular'.

I dismiss the appeal with costs.

Appeal dismissed with costs.
Reported by Zahid Taib

121
9. VIJENDRAN PONNIAH v MBF COUNTRY HOMES & RESORTS SDN BHD & ANOR
[2002] 1 MLJ 535
Malayan Law Journal Reports · 16 pages

HIGH COURT (KUALA LUMPUR)

KAMALANATHAN RATNAM J
SUMMONS NO S2(S1)-23-16 OF 1996
12 November 2001
Case Summary

Bankruptcy — Notice — Judgment in default of appearance — Judgment obtained through

wilful falsehood and concealment of material facts — Whether final judgment for issue of notice
— Bankruptcy Rules 1969 r 95

Civil Procedure — Abuse of process — Bankruptcy proceedings for sum less than that owed to
judgment debtor — Whether want of reasonable and probable cause for institution of
bankruptcy proceedings — Award of damages

Tort — Malicious prosecution — Bankruptcy petition — Want of reasonable and probable cause
— Judgment in default of appearance against plaintiff obtained through wilful falsehood and
concealment of material facts, whether valid judgment — Whether default judgment was final
judgment for commencement of bankruptcy — Award of damages

The plaintiff was an advocate and solicitor. On 4 August 1986, the plaintiff sent the bills to the first
defendant and its holding company for the facilities agreement and loan agreement prepared.
Subsequently, on 29 March 1988, the first defendant sent a notice of demand to the plaintiff who was a
holder of a credit card from the first defendant, claiming the sum due on the credit card. By a letter
dated 6 April 1988, the plaintiff denied owing the sum to the defendant. Instead, the plaintiff demanded
payment on his bills which far exceeded the sum claimed by the first defendant. A summons was issued
by the first defendant on 23 April 1988 but was never served on the plaintiff. The first defendant
nevertheless proceeded to obtain judgment in default of appearance against the plaintiff on 28 June
1988. Four years later, on 1 December 1992, the first defendant instructed the second defendant to
commence bankruptcy proceedings against the plaintiff. Upon the publication of the creditor's petition
against the plaintiff in the newspaper, the plaintiff applied to set aside the service of summons. On the
preliminary issue that the summons was never served on the plaintiff, the learned magistrate set aside
the service of the summons on 22 August 1995 and struck out the creditor's petition. The plaintiff filed
this action to claim for damages for civil malicious prosecution arising out of the bankruptcy
proceedings and for abuse of court process.
Held, awarding the plaintiff RM200,000 as general damages, RM100,000 as aggravated damages for
malicious prosecution and RM100,000 for abuse of process against both defendants:

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(11) As a general rule, it is not an actionable wrong to institute civil proceedings without
reasonable and probable cause, even though malice is provable. Bankruptcy proceedings instituted
maliciously and without reasonable and probable cause however, is an exception to this general rule.
The principles applicable to civil malicious prosecution of bankruptcy proceedings are the same as in
actions for malicious prosecution for the institution of criminal proceeding (see p 541F-H).
(12) Where it is plain that there is a want of a reasonable or probable cause or excuse, it is
reasonable to conclude that the defendant could not honestly have believed in the charge he made and
this is evidence of malice. Evidence of malice could also be construed from utter recklessness or failure
to make proper and adequate enquiries, or not making any effort to test one's information or grounds of
suspicion, for veracity (see p 547B-C).
(13) Orders obtained through willful falsehood and by concealment of material facts could not
amount to valid judgments. As there was no valid judgment, the court rejected the argument that the
default judgment, until set aside, was a good and enforceable judgment and that the first defendant was
entitled to rely on the default judgment as a basis to proceed with the bankruptcy proceeding (see p
546C-D).
(14) Under r 95 of the Bankruptcy Rules 1969, a bankruptcy notice is to issue only on a final
judgment or order where executions had not been stayed. A judgment is not final if it is not given on its
merits as it is liable to be set aside on application and does not finally dispose of the rights of the
parties. As a default judgment does not constitute a final judgment, bankruptcy proceedings ought not
to have been commenced (see p 545E-F, H); Re Udos ak Riging, ex p Seabanc Kredit Sdn Bhd [1994] 3
MLJ 383 followed.
(15) In a claim for damages for abuse of process, so long as the plaintiff could show and the court
is satisfied that there was want of reasonable and probable cause for the institution of the bankruptcy
proceedings, the plaintiff must succeed in his action for abuse of process. However, if the court is not
satisfied that there was want of reasonable and probable cause, the plaintiff would have to prove that he
had suffered some damage or injury in consequence of the process which was initiated for a purpose
other than to obtain a genuine redress (see pp 548D-549A). In this case, the defendants commenced
bankruptcy proceedings for a sum not exceeding half of the amount that was owed by the first
defendant to the plaintiff. No commercial purpose was served by seeking the plaintiff's bankruptcy and
the distribution of his assets. Thus the bankruptcy proceedings were an abuse of process commenced
and maintained to effect an object not within the scope of the process and causing the plaintiff damage
(see p 549D-E).

 [*537] 

Editorial Note:

Editorial Note: The defendants have appealed to the Court of Appeal vide Civil Appeals No W-02-5 of
2002 and W-02-7 of 2001.
 [*539] 
Notes

For cases on notice of bankruptcy, see 1 Mallal's Digest(4th Ed, 1998 Reissue) paras 1699-1816.For

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cases on abuse of process, see 2(1) Mallal's Digest(4th Ed, 2001 Reissue) paras 9-16.For a case on
malicious prosecution concerning issue of bankruptcy petition, see 12 Mallal's Digest(4th Ed, 2000
Reissue) para 466.
Cases referred to

Adzmi bin Ali & Anor v Mohamed Isa bin Kasad [1987] 2 MLJ 199 (refd)

Aris bin Massod, Re; ex p UOL Factoring Sdn Bhd [1998] 3 AMR 3155 (refd)

Bahori Lal & Anor v Sri Ram & Anor AIR 1946 All 139 (refd)

Chee Pok Choy & Four Ors v Scotts Leasing Sdn Bhd [2001] 4 MLJ 346 (refd)

Fitzjohn v MacKinder 142 ER 199 (refd)

Johnson v Emerson & Sparrow (1871) 25 LT 337 (refd)

Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2
MLJ 425 (refd)

Mohamed Amin v Jogendra Kumar Bannerjee & Ors AIR 1947 SC 108 (refd)

Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1991] 1 MLJ 100 (refd)

Premji Damodar v LV Govindji & Co AIR 1947 Sind 169 (refd)

Rohani $ Hamidah bte Nor v Sincere Leasing Sdn Bhd [1993] 1 AMR 225 (refd)

Shearer v Shields [1914] AC 808 (refd)

SMT SR Venkataraman v Union of India & Anor AIR 1979 SC 49 (refd)

Udos ak Riging, Re; ex p Seabanc Kredit Sdn Bhd [1994] 3 MLJ 383 (folld)

Vijendran a/l Ponniah v Bank of Commerce [1998] 7 MLJ 418 (refd)

Williams v Spautz (1992) 174 CLR 509 (refd)

Legislation referred to

Bankruptcy Act 1967

Bankruptcy Rules 1969rr 95, 98

Legal Profession (Practice and Etiquette) Rules 1978r 56

Joginder Singh (Murali Achan with him) (Vijendran & Co) for the plaintiff.

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Teh Beng Boon (Heng & Mogan) for the first defendant.

Trevor George De Silva (Shook Lin & Bok) for the second defendant.

KAMALANATHAN RATNAM J:

The plaintiff is an advocate and solicitor and was at all material times the sole proprietor of his legal
firm. The plaintiff's firm prepared a facilities agreement for the first defendant for which a bill dated 4
August 1986 for the sum of RM15,000 was delivered to the first defendant. The plaintiff's firm also
prepared a loan agreement for the first  [*540] 
defendant's holding company, MBf Holdings, for which a bill for RM31,250 was delivered to MBf
Holdings. The two bills were not denied and/or disputed; neither did the first defendant or MBf
Holdings pay the plaintiff on his said bills.

The plaintiff was a holder of a credit card from the first defendant, and as at 29 March 1988, there was a
sum of RM7,519.44 due on the credit card. To the first defendant's previous solicitors' a notice of
demand dated 29 March 1988 claiming the sum of RM7,519.44. The plaintiff, by his letter dated 6
April 1988, referred to his said unpaid bills and denied owing the first defendant the sum of
RM7,519.44. The plaintiff further demanded payment on his bills which far exceeded the sum of
RM7,519.44. The first defendant again did not dispute the plaintiff's claim or reply to the plaintiff's
letter. The plaintiff, at the request of the first defendant's previous solicitors, again forwarded the bill
with a letter dated 26 May 1988. There was no reply to this letter too. The first defendant, however,
without serving the Kuala Lumpur Magistrate's Court Summons No 82-4065-88 ('the summons') on the
plaintiff, proceeded to obtain judgment in default of appearance for the sum of RM7,519.44. Although
the fact that the plaintiff was represented by solicitors was known to the first defendant's previous
solicitors, no notice was given to the plaintiff under r 56 of the Legal Profession (Practice and
Etiquette) Rules 1978. The summons was issued on 23 April 1988 and judgment in default of
appearance (the default judgment) was obtained on 28 June 1988.

Having obtained the default judgment, the first defendant withheld execution proceedings for about
four and a half years until it commenced bankruptcy proceedings against the plaintiff on 1 December
1992. No explanation was offered for withholding execution proceedings. The second defendant, the
solicitors for the first defendant, received instructions from the first defendant along with a copy of the
judgment, all other relevant documents, demand letters and cause papers, to institute bankruptcy
proceedings against the plaintiff. The defendants continued with bankruptcy proceedings up to the point
of publishing the issuance of a creditor's petition, in The Starnewspaper.

On reading the advertisement of the creditor's petition in the local newspaper, the plaintiff applied to set
aside the service of the summons. On a preliminary issue that the summons was never served on the
plaintiff, the learned magistrate set aside the service of the summons on 22 August 1995. Consequently,

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the judgment in default was also set aside. The first defendant did not appeal against the decision of the
learned magistrate. Neither did the first defendant commence a fresh action against the plaintiff. It must
be noted that the creditor's petition was also posted on the notice board of the High Court at Kuala
Lumpur. The plaintiff successfully set aside the service of the bankruptcy notice and had the creditor's
petition struck out on 16 November 1995.
THE PLAINTIFF'S CLAIM

The plaintiff's claim is for damages for civil malicious prosecution arising out of the bankruptcy
proceedings, and for abuse of process.
 [*541] 
Civil malicious prosecution

With regard to the claim for civil malicious prosecution, the plaintiff has to satisfy the court on the
following issues.

Did the defendants have a right to institute bankruptcy proceedings?

The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in
motion and it is designed to discourage the perversion of the machinery of justice for an improper
purpose.
said Sir John Beaumont in Mohamed Amin v Jogendra Kumar Bannerjee & Ors AIR 1947 SC 108 at p
112 (PC). This case also held that in order to succeed, the plaintiff must prove that the proceedings
instituted against him were malicious, without reasonable and probable cause, and that they terminated
in his favour and that he had suffered damage, and that the damage claimed is for damages to the
person, to property or to reputation. Sir John went on to say at the same page as follows:
… That the word 'prosecution' in the title of the action is not used in the technical sense which it bears
in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes
of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a
petition to wind up a company ….
In Bahori Lal & Anor v Sri Ram & Anor AIR 1946 All 139 the court held that the mere presentation of
the petition for insolvency tends to injure the credit and the reputation of the persons proceeded against
in the society in which they move, much more so if they are actually adjudged insolvents and their
property is seized by the receiver and the adjudication is annulled on appeal. The person so proceeded
against is entitled to sue in tort for damages if the application for insolvency is malicious and without a
reasonable and probable cause. It is immaterial whether he was a trader or not.

As a general rule, it is not an actionable wrong to institute civil proceedings without reasonable and
probable cause, even though malice is provable. The recognized exceptions to this general rule are in
the case of proceedings for bankruptcy, liquidation, arrest and execution against property instituted
maliciously and without reasonable and probable cause. The principles applicable in all these excepted
cases are the same as in actions for malicious prosecution for the institution of criminal proceedings

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 (see Premji Damodar v LV Govindji & Co AIR 1947 Sind 169). Therefore, it is obvious that the
principles applicable to civil malicious prosecution of bankruptcy proceedings are the same as in
actions for malicious prosecution for the institution of criminal proceedings.

The facts of the case before me reveal that the judgment in default against the plaintiff was obtained
without service of the summons on the plaintiff because, on a preliminary issue raised that the summons
was never served on the plaintiff, the magistrate's court set aside the service of the summons and
consequently the judgment in default was also set aside. Since the first defendant neither appealed
against that decision nor elected to file a fresh action, as it was entitled to do since the case was only
disposed [*542] 
off, on a preliminary issue, there was no judgment to form the lynch pin for the bankruptcy
proceedings.
The bankruptcy proceedings

The entire bankruptcy proceedings were riddled with incurable irregularities:

(ix) the judgment upon which bankruptcy proceedings were instituted was a nullity;
(ii) the request for issue of the bankruptcy notice stated that the plaintiff resided at his office, which was
purportedly his last known address. The contractual address for service or the last known address of the
plaintiff was his home address, namely, 97 Jalan Lee Woon, Zoo View, Ulu Klang 68000 Selangor, and
not the plaintiff's office which is in Kuala Lumpur;
(iii) the bankruptcy notice which was extended for nine months from 28 February 1993, expired on 30
November 1993. This bankruptcy notice was never served, whether by personal service or by
substituted service within this period, resulting in the demise of the bankruptcy notice and the order for
substituted service. This fact was not revealed to the court;
(iv) the defendants applied ex parte on 24 December 1993 to extend the life of the 'dead' bankruptcy notice
and obtained the order dated 28 December 1993 purportedly for nine months. No order was made for
the substituted service of the purported extended bankruptcy notice. Again these facts were not revealed
to the court;
(v) the defendants purportedly enforced a non-existent order for substituted service of a non-existent
bankruptcy notice on the plaintiff on 28 February 1994. This fact too was not revealed to the court;
(vi) the orders for extension of the bankruptcy notice dated 31 March 1993 and 28 December 1993
respectively, and the order for substituted service of the bankruptcy notice were obtained by misleading
the court in that the affidavits filed in support of the applications contained misleading averments;
(vii) the affidavit of non-service affirmed alleged that all reasonable efforts were made to serve the
bankruptcy notice, whereas in fact no letter of appointment was sent to the plaintiff to enable the
plaintiff to make himself available so that service could be effected;
(viii) the affidavit in support of the application for substituted service of the bankruptcy notice
affirmed alleged that the plaintiff was evading service of the bankruptcy notice when in fact his
solicitors had written a letter dated 10 December 1992 to the second defendant;

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(ix) the bankruptcy notice was never served on the plaintiff. In fact, the defendants never had a bankruptcy
notice to serve the plaintiff;
(x) there was no act of bankruptcy committed by the plaintiff; [*543] 
(xi) the defendants, without a bankruptcy notice and without an act of bankruptcy issued out the creditor's
petition in contravention of the Bankruptcy Act 1967;
(xii) the defendants misled the court into granting the order for substituted service of the creditor's
petition, in that:
(b) the calls were not made at the plaintiff's address of service, namely, the plaintiff's residence;
(c) the letter of appointment purportedly sent to the plaintiff was not sent to his last known address,
namely, the plaintiff's residence:
(d) the plaintiff did not receive the purported letter of appointment;
(e) the letter of appointment purportedly sent to the plaintiff came from the agent Sejana Services Sdn Bhd
and not from the second defendant; and
(f) no enquiries were made by the process server with regard to the plaintiff.

In fact it is appropriate at this stage to remind creditors and their solicitors of the dire warning given by
Mahadev Shankar J (as he then was) in Rohani $ Hamidah bte Nor v Sincere Leasing Sdn Bhd [1993] 1
AMR 225 when he said at p 231:
… Bankruptcy proceedings are penal in nature and judgment creditors and their solicitors will be well
advised to take note of their responsibility more seriously.
Can the defendants claim they were acting on a valid judgment?

The defence of both the defendants and their evidence in court was that they were not without
reasonable and probable cause to institute bankruptcy proceedings on the sole ground that they had a
valid judgment at the material time of filing the said bankruptcy proceedings. The second defendant's
additional defence was that it acted on the instructions of the first defendant.

In Fitzjohn v MacKinder 142 ER 199 Cockburn LJ in addressing this very same issue said at p 208 as
follows:
… the defendant, in order to avoid the consequences of a proceeding on the face of it otherwise clearly
wrongful and actionable, seeks to protect himself by shewing that he acted under the order of the county
court judge. … it is not competent to the defendant to shelter himself under this order, seeing that the
judge was induced to make it through his perjury and fraud. To suffer the judge to make such an order
without informing him of the truth, and disabusing his mind of the error into which he had been led by
wilful falsehood, was, as it seems to me, a fraud upon the judge, as well as a wrongful act towards the
plaintiff: and I cannot bring myself to think that the defendant should be allowed to shelter himself
under an order having its origin in his own falsehood, and issuing through his own fraud.
 [*544] 

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 I have enumerated all the various misgivings and mistakes committed by the defendants with respect to
the obtaining of the judgment based on which the defendants commenced the bankruptcy proceedings. I
cannot accept that under our law which ensures that no wrong can exist without a remedy, a litigant
such as the plaintiff can be denied redress in the face of so blatant a wrong, on the ostensible ground
that the defendants who had so flagrantly abused the process of the court by improperly obtaining a
judgment could attempt to benefit from such iniquitous conduct on the sole basis that they were acting
upon such an order of the court obtained improperly, which certainly no magistrate or judge would have
granted, if appraised of the true circumstances. As for the second defendant whose additional ground
was that they acted on instructions, surely it was their duty to have verified the validity of the order
upon which they were asked to act.
Concealment of material facts

The default judgment, the bankruptcy notice, the extensions of the bankruptcy notice, the orders for
substituted service of the bankruptcy notice and the creditor's petition, were obtained by the
concealment of material facts. Had the courts known the true facts, the various orders obtained by the
defendants would never have been granted. The default judgment was obtained by concealing from the
court material evidence without which the court would not have granted default judgment.
(ii) The judgment was obtained in default of appearance of the plaintiff on the return date and it was alleged
that the plaintiff did not appear despite being served with the summons. The court was required to rely
on the truthfulness of the affidavit of service and on the honesty of counsel appearing and seeking the
order for default judgment.
(ii) The summons was however never served on the plaintiff and this fact was concealed from the court.
(iii) There was no evidence of service of the summons. This fact was not revealed to the court.
(iv) There was no endorsement of the service of the summons. This fact too was not revealed to the court.
The affidavit of service on the contrary positively affirmed an endorsement when there was none.
(v) The evidence of the plaintiff in respect of the aforesaid matters was never challenged. The first
defendant's then solicitors were not called to rebut this evidence. The defendants offered no explanation
either.

In Chee Pok Choy & Four Ors v Scotts Leasing Sdn Bhd [2001] 4 MLJ 346 the Court of Appeal set out
the law on the impeachment of a judgment obtained by concealment of material facts.

The Court of Appeal, in what it regarded as an exceptional case, examined the undisputed facts of the
case beginning with the cause papers, including the affidavit filed by the respondent. The court found
that nowhere in the affidavit was there any mention of the fact that the respondent was a moneylender.
The respondent was held to have actively  [*545] 
concealed that fact. The court further held that had the respondent not concealed the truth from the court
when it obtained the foreclosure order, namely, that it was a licensed moneylender, its action would
have been struck out. The respondent had therefore obtained the foreclosure order by fraud. The Court
of Appeal took the view that the appellant's evidence was not subject to any serious challenge. In fact,

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much, if not all, of the evidence relied upon in support of the allegation of fraud was made up of the
respondent's own documents.
Failure of the defendants to comply with Practice Direction 1 of 1968

To avoid repetition, I do not intend to reproduce the said lengthy practice note which has been
reproduced in full in Re Aris bin Massod; ex p UOL Factoring Sdn Bhd [1999] 3 MLJ 358. This
practice direction sets out the procedure for substituted service in respect of bankruptcy proceedings
since neither the Bankruptcy Act nor the Bankruptcy Rules set out the procedure. Practice Direction
1/68 states that in such cases, an application must be made to the High Court and it also sets out the
number of calls to be made and that the said calls should be made at the defendant's residence,
permanent or temporary, or if the claim relates to the defendant's business, at his business address. In
the case before me, there was clearly non-compliance of this direction.
On a default judgment that was not a final judgment

In Re Udos ak Riging; ex p Seabanc Kredit Sdn Bhd [1994] 3 MLJ 383 Abdul Kadir Sulaiman J (as he
then was) held that under r 95 of the Bankruptcy Rules 1969 ('the Rules'), a bankruptcy notice is to
issue only on a final judgment or order where executions had not been stayed and he went on to hold
that for the purpose of bankruptcy proceedings, a default judgment is not final because it had not been
decided on its merits, and any judgment not given on merits is liable to be set aside on application and
does not finally dispose of the rights of the parties. His Lordship went on to hold that if the debtor had
not appealed within time, the default judgment would have crystallized into a final judgment. However,
in that case, the debtor had filed his application to set aside the default judgment within time and the
court held that the judgment would only be final after he had exhausted his remedy given by law. The
issue of a stay of execution would only be relevant if the default judgment was final. Therefore,
pursuant to r 98 of the Rules, his Lordship held that no act of bankruptcy had been committed by the
debtor under the notice. I agree with the views expressed by the learned judge. In the case before me,
the default judgment was never served on the plaintiff, thus giving him no opportunity to set it aside. It
is my judgment therefore that the default judgment in this case had not crystallized into a final
judgment and that bankruptcy proceedings ought not to have been commenced against the plaintiff.

The first defendant relied heavily on the Supreme Court decision in Pembinaan KSY Sdn Bhd v Lian
Seng Properties Sdn Bhd [1991] 1 MLJ 100 to argue that a default judgment is a good and enforceable
judgment until  [*546] 
set aside, and that therefore on that basis, the first defendant was entitled to proceed with the bankruptcy
proceedings. The facts of the case in Pembinaan KSY are peculiar to the decision of the Supreme Court.
The appellant company was the contractors to the respondent company for a development project of
property owned by the respondent company. The balance of payment for work on the development
project was due to the appellant company and they obtained a default judgment against the respondent
company. In the meantime, a petition for winding up of the respondent company had been presented by
the Morgan Guarantee Trust Co. The appellant company supported the petition as supporting creditor.
The respondent company filed a notice to strike out the appellant company as a supporting creditor on
the grounds that it had no locus standi to support the petition. The learned trial judge gave judgment for
the respondent company as he held that the default judgment was null and void and should be set aside.

130
 The appellant company appealed. In allowing the appeal, the Supreme Court held that the default
judgment, until set aside, was a good and enforceable judgment and that the appellant company was
perfectly entitled to rely on the default judgment as a basis for its right to be a supporting creditor and
should be recognized in the petition as a supporting creditor.

It is obvious therefore from the facts in Pembinaan KSY that there was no element of concealment of
material facts, breach of a rule and malice, well within the knowledge of the defendants themselves to
taint the default judgment. In the case before me, the defendants clearly and unambiguously conceded
that the summons was not even served on the plaintiff. How then could they obtain a valid judgment
against the plaintiff for this court to even consider the effect of the decision of the Supreme Court in
Adzmi bin Ali & Anor v Mohamed Isa bin Kasad [1987] 2 MLJ 199. On the other hand, even if the
defendants were to contend that upon the admission of the plaintiff that he owed the first defendant the
sum claimed in the bankruptcy proceedings, the first defendant had failed to deny or reject the bill of
the plaintiff to the first defendant which was a sum in excess of that claimed by the first defendant and
in which case, if the first defendant had through the second defendant served its summons on the
plaintiff, the plaintiff would have claimed a set off or would have counterclaimed? So, the mere
existence of the debt from the plaintiff to the first defendant does not, by itself provide a defence to the
plaintiff's claims.
Malice

In SMT SR Venkataraman v Union of India & Anor AIR 1979 SC 49 the Supreme Court of India relied
on Viscount Haldane's description of malice as stated in Shearer v Shields [1914] AC 808 at p 813
which reads as follows:
A person who inflicts an injury upon another person in contravention of the law is not allowed to say
that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He
may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts
ignorantly, and in that sense innocently.
 [*547] 

The Supreme Court of India then proceeded to give its own views on malice at p 51:
Thus, malice in its legal sense means malice such as may be assumed from the doing of a wrongful act
intentionally but without just cause or excuse, or for want of reasonable or probable cause.
It is my judgment, that where it is plain that there is a want of a reasonable or probable cause or excuse,
it is reasonable to conclude that the defendant could not honestly have believed in the charge he made
and this in my view is evidence of malice. I further hold that evidence of malice can be construed from
utter recklessness or failure to make proper and adequate enquiries, or not making any effort to test
one's information or grounds of suspicion, for veracity. Applying these distilled principles, I can see
malice scorching its way through this case. The first defendant was malicious in:
(a) proceeding with the summons and obtaining default judgment without replying to the plaintiff's letters
and/or denying the plaintiff's claims;

131
(b) having requested the plaintiff for his bill for RM15,000 and having received the bill, proceeding to
obtain default judgment;
(c) not making any request for payment on the default judgment before instituting and continuing with
bankruptcy proceedings; and
(d) withholding execution proceedings for four and a half years before instituting bankruptcy proceedings.

The second defendant has specifically denied any malice in instituting the bankruptcy proceedings and
the defence is that they had a reasonable and probable cause for instituting the same, without malice and
in the bona fide belief that they were discharging their duty as solicitors for the first defendant.
Basically, the second defendant's defence is similar to that of the first defendant in that there was a valid
judgment subsisting at the time the bankruptcy proceedings were instituted. To avoid repetition, I hold
that my judgment on this issue is as found against the first defendant. As for merely taking instructions,
I am of the view that since the second defendant as solicitors was embarking on execution proceedings,
it was its incumbent duty to have ascertained the validity of that very judgment that was to form the
prop to support the bankruptcy proceedings. And in order to exercise that duty, the second defendant
was clearly expected to check and verify if that judgment was indeed well founded, unimpeachable and
was not even the subject of an appeal. The very fact that the judgment was an in default judgment
should have put the second defendant to a high degree of alertness as to whether there was proper
service of the summons. A search of the court file would have clearly shown the absence of an affidavit
of service. To my mind, the lack of care on the part of the second defendant was sufficient to constitute
malice. It is apropos that I cite a passage from Johnson v Emerson & Sparrow (1871) 25 LT 337
wherein Baron Martin said as follows at p 352:
 [*548] 

… I quite agree that if an attorney, knowing a proceeding in bankruptcy to be groundless, presented a

petition, either from the motive of gain to himself, or in obedience to the instruction of an oppressive
and vindictive client, it would be in law a malicious act.
I was referred to another case, namely, Vijendran a/l Ponniah v Bank of Commerce [1998] 7 MLJ 418
wherein on the very same cause of action and on almost similar facts and brought by the very same
plaintiff, my learned brother James Foong J in dismissing the action held:
A judgment stands as a good judgment until set aside. When a judgment sum was not paid, then
execution could enforced. This could take the form of a bankruptcy proceeding, as the case was. The
court could not see any sinister reason for this approach taken by the defendants.
Whilst I agree with that view, the facts before me are totally different. Here the defendants knew that
the judgment taken was improper and illegal because the summons had not even been served on the
plaintiff. This very material fact distinguishes the two cases. Having considered the matter in its
entirety, I find that the plaintiff had indeed proved his case for civil malicious prosecution against the
defendants.
Abuse of process

To succeed in a claim for damages for the tort of collateral abuse of process, a claimant need not prove

132
 that the party claimed against had maliciously invoked the process of court, or that the proceedings had
terminated in the claimant's favour. The claimant, however, would have to prove that the process
complained of had been initiated by the party claimed against, and that the process was initiated for a
purpose other than to obtain a genuine redress, and that the claimant had suffered some damage or
injury in consequence thereof (see Malaysia Building Society Bhd v Tan Sri General Ungku
Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425). The essence of an abuse of process action is that
the proceedings complained of were instituted and/or maintained for a purpose other than that for which
they were properly designed or exist, or to achieve for the person instituting them some collateral
advantage beyond that which the law offers, or to exert pressure to effect an object not within the scope
of the process. The focus in such a suit is on the purpose for which the proceedings exist, and on the
dominant purpose of the person charged with abuse of process in instituting them. It is my judgment
that if the court is satisfied that the plaintiff has shown that there was want of reasonable and probable
cause for instituting and/or for continuing with bankruptcy proceedings, the court must presume that the
defendants instituted and continued with bankruptcy proceedings for a purpose other than that for
which bankruptcy proceedings were properly designed or exist. It is not necessary for the plaintiff to
show what that purpose was or to identify the collateral object. If the court is satisfied that in continuing
with bankruptcy proceedings, the defendants acted unlawfully, negligently, unconscionably, with
conscious wrongdoing in contumelious disregard for the plaintiff's rights, the plaintiff must succeed in
his cause of action for abuse of process. If however the court is  [*549] 
not satisfied that there was want of reasonable and probable cause, the plaintiff must prove that the
defendants instituted and/or continued with bankruptcy proceedings for one or all of the following
purposes, namely:
(a) for a purpose other than that for which bankruptcy proceedings were properly designed or exist;
(b) to achieve for the defendants some collateral advantage beyond that which the law offers; or
(c) to exert pressure on the plaintiff to effect an object not within the scope of the process.

The fundamental purposes of bankruptcy proceedings are to recover a debt for which the plaintiff is
lawfully entitled to and to distribute the assets of the defendant to the judgment creditors and the
dominant purpose of the plaintiff must be to make the defendant a bankrupt. In my view, a purpose is
not improper unless it involves a demand made without right, or unless it entails a consequence
unrelated to or not proportionate with the right, interest or wrong asserted in the proceedings or by the
process said to have been abused (see Williams v Spautz (1992) 174 CLR 509). Considering the facts of
the case apropos to the law as stated, the defendants commenced bankruptcy proceedings for a sum not
exceeding half of the amount that was owed by the first defendant to the plaintiff. In my view, there
was no proper commercial purpose to be served by seeking the plaintiff's bankruptcy and the
distribution of his assets. Consequently, the bankruptcy proceedings were an abuse of process
commenced and maintained to effect an object not within the scope of the process and causing the
plaintiff damages. When process is abused, the unfairness against which a litigant is entitled to
protection, is his subjection to process, which is not intended to serve, or which is not capable of
serving its true purpose. In continuing with bankruptcy proceedings, the defendants acted unlawfully,
negligently, unconscionably with conscious wrongdoing in contumelious disregard for the plaintiff's
rights.
DAMAGESFor civil malicious prosecution

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 General

The plaintiff is an advocate and solicitor of 25 years' standing. The damages to the plaintiff's reputation
with regard to his professional status is that:
(a) the plaintiff did not pay what was owing on a credit card;
(b) the plaintiff could not even pay such a small sum of RM7,519.44;
(c) a bankruptcy notice was issued against him;
(d) he evaded service of the bankruptcy notice;
(e) he committed an act of bankruptcy;
(f) he is unable to pay his debts;
(g) a creditor's petition was taken out against him; [*550] 
(h) he evaded service of the creditor's petition;
(i) the creditor's petition against him was required to be published in a national newspaper;
(j) the plaintiff may be removed from the roll of advocates and solicitors;
(k) prospective clients including banks and financial institutions would never engage him;
(l) he cannot be trusted with any money;
(m) his practice as an advocate and solicitor is in jeopardy;
(n) the plaintiff's name appears in the data bank of a credit check company, namely, CTOS Sdn Bhd, and
that a creditor's petition has been taken out against him;
(o) the plaintiff's name, as such, would also appear in the data banks of other credit check companies;
(p) he can never obtain a loan or similar facility from any bank or financial institution.

The damage to the plaintiff's reputation with regard to his social status is that:
(i) the stigma of having a creditor's petition taken out against him will forever remain;
(ii) there will always be the likelihood that he will suffer the same humiliation as happened when Maybank
refused to open an account for him;
(iii) he will never be nominated or elected to any official position in any club or social body;
(iv) his colleagues in the legal profession will shun him;
(v) his wife and members of his family will forever suffer the same humiliation.

Having considered all these factors, I award a sum of RM200,000 as general damages against both the
defendants.
Aggravated

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 Every action and step taken by the defendants from the very beginning was dishonest, malicious and
totally reckless. The aggravated damage to the plaintiff arises out of:
(a) the refusal of the defendants to reply to his letters and telephone calls for several years;
(b) the defendants proceeding with every step including obtaining default judgment, instituting bankruptcy
proceedings and continuing with bankruptcy proceedings in stealth;
(c) the use of bankruptcy proceedings against the plaintiff especially so knowing that he is a practising
advocate and solicitor;
(d) prosecuting the plaintiff in the several applications made in the bankruptcy court and in the bankruptcy
proceedings; [*551] 
(e) continuing to adamantly maintain and justify the obviously untenable defences; and
(f) not apologizing for their conduct.

Under this head, I award the plaintiff the sum of RM100,000 against both the defendants. I do not think
that this is a fit and proper case to consider awarding exemplary damages as has been urged upon me.
For abuse of process

Under this head, I award a sum of RM100,000 against both the defendants.

All the awards will bear interest at 4%pa from the date of the issuance of the bankruptcy notice to the
date of judgment and costs.
Order accordingly.
Reported by Ashley Tan

End of Document

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