A181 GLUP 4183 Topic 8

9/30/2018 1 GLUP 4183 LAW OF SUCCESSION AND PROBATE A181 GLUP 4183 NAMN  Document must convey testamentary intention and be executed in the manner laid down by Malaysian Wills Act 1959  The will is a document in relation to which the best witness is necessarily unavailable.  The formalities involve the signing or acknowledging of the testator’s signature before witnesses.  Wills formalities are frequently stringent, in attempt to prevent successful fraud, undue influence, substitution or mistake from tainting the document. 1. Can dispel or reduce the existence of vitiating factors such as forgery and undue influence 2. The identity of the testator can’t be disputed 3. To achieve certainty of the testator’s intention 4. A person will think carefully about what he is doing before executing will. A181 GLUP 4183 NAMN 2 A181 NAMN 1

9/30/2018  (1) wills Act 1959 – ‘Every will other than a Privilege Will must be in writing.’  (2) wills Act 1959 – ‘…it must signed by the testator or by some other person in his presence and by his direction; and the signature must be made or acknowledged by the testator as the signature to his will in the presence of 2 or more witnesses present at the same time. A181 GLUP 4183 NAMN 3 Attestation Writing Signature A181 GLUP 4183 NAMN 4 A181 NAMN 2

9/30/2018  Will must be in writing  The requirement that a will must be in writing does not mean that it must be in the testator’s handwriting, or it must necessarily be in anyone’s handwriting.  There are no restriction as to the materials, substance, thing or article with which and upon which a will may be written.  What‘s constitute writing?  S3 Interpretation Act 1948 & 1967- Writing includes type-writing, printing, lithography, photography, electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved- Any permanent form of visual representation is sufficient. It may be handwritten, typed, printed or be in any combination of these. A181 GLUP 4183 NAMN 5  Material upon which the will may be written?  No restriction  Re Barnes Goods (1926)- egg shell  Murray[1963]- cigarette packet  Language requirement?  No requirement to the language in which the will is written.  It may be written in indirect code- Re Opuku [1973]  Arabic language- Re Shaikh Abdullah, deceased; AG v Shaikh Ali Awath [1928] SSLR 101  Signature- s5(2) Will Act 1959 A181 GLUP 4183 NAMN 6 A181 NAMN 3

9/30/2018 Re Cook- your Re Salvory’s Re Reddings’s Re Finn (1935)- A loving mother goods- initials goods- assumed thumb mark name smeared with ink - Thiang Kai Goh [2004] 1 LNS 382 Rhodes v Glover’s Good- Jenkins v Peterson- mum first husband Gainsfort and name thring- stamped name A181 GLUP 4183 NAMN 7  An incomplete signature is sufficient where there is evidence that he intended it to be the best he could do by way of writing his name Re Chalcraft, Chalcraft v Giles Re Cooling[1972] and Rance[1948] • while in hospital, the testator started to sign • the testatrix was on the verge of death. Her his will in the presence of a patient, and the normal signature was ‘E Chalcraft’ she ward sister as witnesses. After he started to begin to sign her name, and had got as far sign his name, but before he had as ‘E Chal’ when she could not go on. On a completed his signature, the sister was liberal construction, the court held that this called away to attend another patient., and was all that she intended to put as her the testator completed his signature in her signature, and the will was admitted to absence. It was clear that the testator probate. intended to sign the will with his full signature and he had not therefore, ‘signed’ in the presence of both witnesses. A181 GLUP 4183 NAMN 8 A181 NAMN 4

9/30/2018 Position of Signature Signature by 3rd party witnesses • At the foot or end of the • Allow by law but must be in • Operative signature must be made or will- nothing following the the presence of testator acknowledge by testator in the signature is admissible- and his direction presence of 2 or more witnesses wood v smith(1992) • The third party may sign in present at the same time. • a signature or mark in the his own name or in Refer- middle of a will is not testator’s name-In the 1. Khaw Cheng Bok v Khaw Chen sufficient. -Re Woodley Goods of Clark (1858) Poon [1998] 3 MLJ 457 (1864) • May be one of the 2. Sawinder Kaur Fauja Singh v witnesses to the will- Smith Charnjit Singh Thakur Singh v Harris (1845) (1998) 1 CLJ Supp 402 3. Re Kulsome Bee, deceased [1930] SSLR 64 A181 GLUP 4183 NAMN 9 Presence •Presence means physical proximity, rather than mental presence. If however, the testator was A181 GLUP 4183 NAMN not mentally present the will would be defective for lack of mental capacity. A181 NAMN •Presence at the same time only refer to testator and witness- in Dr Shanmuganathan [1997] 3 MLJ 6- will valid even without the presence of both witnesses at the same time. In the case of Brown v Skirrow (1902) 13, the court defined “in the presence of” under s.9 English Wills Act, 1837 ( prima facie s5 Malaysian Wills Act 1957) means \"actual visual presence\" . -both physical & mental presence 10 5

9/30/2018 Acknowledgement Attestation • May be made by words (testator acknowledges • no statutory requirement. Although no form of his signature by words) or conducts which shows attestation is necessary, it is always desirable to that he recognizes the signature as his own have an attestation clause showing that the • in the Good of Davies- drawing a dry pen over statutory requirement have been complied with. the existing signature. • Current practice- insert attestation clause • Only have opportunity to see- Re Groffman • ‘Signed by the above named Alfred in our [1969]- need not to actually see the testator sign- presence and attested by us in the presence of Tod v Earl Winchelsea(1826) & Shires v him and each other.’ Glascock (1688) • its provide prima facie evidence that in particular • the acknowledgement is of the signature not of circumstances the requirements have been the will, but it is sufficient for the testator to says fulfilled. words to the effect ‘this is my will’ even though • In the absence of such clause, the Registrar he does not say ‘this is my signature’.-Keigwin v requires an affidavit of due execution from one or Keigwin (1843) both of the attesting witnesses to be filed in • There is no requirement for the witnesses to sign support of the application for the grant of the will, or acknowledge the signature in the probate, before probate can be obtained.- o71 r presence of each other 9 RoC. A181 GLUP 4183 NAMN 11 Acknowledgement •signature by words) or conducts which shows that he recognizes the signature as his own A181 GLUP 4183 NAMN •in the Good of Davies- drawing a dry pen over the existing signature. •Only have opportunity to see- Re Groffman [1969]- need not to actually see the testator sign- Tod v Earl Winchelsea(1826) & Shires v Glascock (1688) •the acknowledgement is of the signature not of the will, but it is sufficient for the testator to says words to the effect ‘this is my will’ even though he does not say ‘this is my signature’.-Keigwin v Keigwin (1843) •There is no requirement for the witnesses to sign the will, or acknowledge the signature in the presence of each other 12 A181 NAMN 6

9/30/2018 Attestation •no statutory ‘Signed by the requirement. above named Alfred in our •Current practice- presence and insert attestation attested by us in clause showing the the presence of him and each statutory compliance has other.’ been fulfilled In the absence of such clause, the Registrar requires an affidavit of due execution from one/ both 13 attesting witnesses to be filed in support of the application for the grant of probate, before it can be obtained.- o71 r 9 RoC. A181 GLUP 4183 NAMN • No requirement as long as Capacity Witnesses • If a person who would derive a competent – age of majority & of Witness benefitting benefit under the will acts as a sound mind witness, although the attestation by that person is good, he can’t • There is also no statutory take any benefit under the will. provisions which forbids any person from witnessing a will and • A beneficial gift to the W or H of who is qualified to witness a will- s8 an attesting witness is void. Will Act 1959 • 2 witnesses are sufficient. Number of Prohibition • Witness cum beneficiary – will • If the will is witnessed by more than Witnesses of valid gift void- s10 Will Act 1959 2 persons, and there are at least 2 benefiting • A beneficial gift to the W or H of witnesses who do not take any an attesting witness is also void.- benefit under the will, the other s9 wills Act 1959 witness or witnesses may take any benefit conferred on them. • Refer Thiang Kai Goh v Yee Bee Eng [2004] 1 LNS A181 GLUP 4183 NAMN 14 A181 NAMN 7

9/30/2018 Voluntary Involuntary  Revocability is an essential characteristic of a will, and revocation may be just as significant a step as the execution of a will.  For revocation to be effective, the intent of the testator, whether express or implied, must be clear, and an act of revocation consistent with this intent must occur.  A will usually begins with a clause revoking all former wills: ‘I hereby revoke all wills and testamentary dispositions heretofore made by me’, A181 GLUP 4183 NAMN 15 Revocation by Revocation by writing Revocation by another/a subsequent destruction • No particular form of wording is will or codicil required in order to effect a • revocation by burning, tearing or revocation by this method as long otherwise destroying the same by • The making of a later will does not as it is executed in accordance the testator or by some person in revoke the former will in so far as it with s5 WA. his presence and by his direction, is inconsistent. with the intention of revoking the • A letter signed by a testator and same. Cheese v Lovejoy (1877)- where the attested by two witnesses directing testator after writing upon a part “This his will be destroyed has been • A will may be revoked by will is revoked”, threw the will in a corner held sufficient to revoke the will destruction of the will either by the of his study. The housemaid preserved it (see the case of In the Goods of person who made the will or by until the testator’s death. The Court held Durance (1872); see also s14 WA some other person in his presence that the will had not been destroyed and and under his direction. In so could be admitted to probate. Lord addition, the person who made the Justice James said: “All the destroying will must intend that the will be in the world without the intention will not revoked. revoke a will, nor intention without destroying. There must be the two”. 16 A181 GLUP 4183 NAMN A181 NAMN 8

9/30/2018 Gan Kim Heng v Where in an earlier will the testator leaves a specified named house to A and in a later will Lee Siew Seok leaves the same house to B, the house will go to B. There is implied revocation as by his conduct [1970] 1 MLJ 85- the testator had evinced an intention that B must have the house instead of A. The gift to A is general rule that if impliedly revoked because there is such an inconsistency that the later clause prevails. two parts of a will are totally inconsistent and cannot possibly be reconciled the later shall prevail is subject to qualifications- However, where in a will the testator made a gift of 17 RM500.00 to X and in a later will (which does not contain a revocation clause) leaves RM500.00 to Y, both X and Y will receive the legacies of RM500.00 each.. A181 GLUP 4183 NAMN  By operation of statute –(s12 WA), where a person makes a will and then marries, his will or part thereof is revoked by the marriage and becomes inoperative. If, however, his will is made in contemplation of a particular marriage which takes place in due course, even in a first, second or subsequent marriage of a person lawfully practicing polygamy, then the will is not revoked.  A will is not revoked by any presumption of change in circumstance- (s13 WA)  Pilot v Gainfort (1931)- where a will containing a gift to the lady to whom the testator subsequently got married was held to be valid. A181 GLUP 4183 NAMN 18 A181 NAMN 9

9/30/2018 Re Lee Kim Chye, Re Wan Kee Keong, Re Syed Hassan Aljofri, Re Ena Tamby, deceased deceased [1936] MLJ 60 deceased [1975] 1 MLJ deceased [1949] MLJ [1931) SSLR 3 (decided in Singapore). 150; [1975] 2 MLJ 152- 198 • although a ceremony • testator subsequent to • polygamous marriages • where an entry signed performed by a Chinese his marriage made a in the marriage register on marrying a codicil to his will stating • Taylor J. held in the secondary wife was “In all other respects I Singapore High Court by the testator held to be valid, the will confirm the said will’. made prior to the the question arose that the will of a testator (husband) and three secondary marriage whether the codicil witnesses, all of whom was held to be revoked could be admitted to not domiciled in the were together when by the marriage. probate. Colony is not revoked on a subsequent they signed it and saw • However, it is important • Justice Wan Hamzah to note that this case held that it was clear marriage and may be each other sign, the was decided before that the deceased petitioner claimed it to Chinese secondary intended that his will operated even as to be a testamentary marriages became void would be operative and by law. s6 LRA that it was immaterial land in the Colony. disposition in the form of whether he knew that the will had been • It is important to note codicil which revived the revoked by the will made before marriage. Probate was that the case of Re marriage. granted in respect of the will and the two codicils. Shaik Abubakr bin The decision was affirmed by the FC. Mohamed Lajam, • Morrison J. held that it was not, upon the deceased [1935] MLJ 137 was not followed. ground that the gift was irrevocable by Mohammedan law. A181 GLUP 4183 NAMN 19 The doctrine is commonly applied (i) the revocation of a will or ii) when the testator destroys (iii) Where a testator part of will by a subsequent the will on the assumption that believed that he had will or by destruction may be a subsequently executed will validly executed a second conditional, so that if the is valid. If the latter will proves will, then, if for some condition is not satisfied, there invalid (e.g. for noncompliance reason it is found that the is no revocation and the with the formalities), the Court second will had not been original will remains fully will apply the doctrine to properly executed, then in operative. reinstate the prior will by applying the doctrine, the treating the revocation as first Will will not have conditional on the validity of been revoked- Durber v the second will. Burn (1926). A181 GLUP 4183 NAMN 20 A181 NAMN 10

9/30/2018 If revocation of a will is conditional, then the will, will only be effective when the condition is fulfilled- Re Bridgewater’s Dixon v Treasury Re Carey [1977] Estate [1965] Solicitor [1905] • Revoked having • Revoked if the former • Revoked by nothing to leave- will revived execution of new will- A181 GLUP 4183 NAMN 21 A181 NAMN 11