Requirements of a valid Wills
 A valid will must satisfy three requirements:
i. Age
ii. Testamentary capacity
iii. Formalities
i. Age
 S.4 Wills Act 1959 - No will made by any person
under the age of majority shall be valid.
 Age of majority – s.2 of the Age of Majority Act
1971 provides that all males and females within
Malaysia shall, on attaining eighteen years of
age.
 Therefore, a will made by a person under the
age of 18 shall not be valid.
Exception:
S.26 (4) WA – the requirement as to age shall not
apply to privileged wills made by soldiers, airmen
and sailors.
ii. Testamentary capacity
 A testator must have testamentary capacity
which means in effect that the testator has the
mental capacity, has the intention, and exercises
genuine free choice in the making of the will.
“animus testandi” – mentally capable
 S.3 WA – Except as hereinafter provided, every
person of sound mind may devise, bequeath
or dispose of by his will, executed in manner
hereinafter required, all property which he
owns or to which he is entitled either at law or in
equity at the time of his death notwithstanding
that he may have become entitled to the same
subsequently to the execution of the will.
 However, there is no definition provided in the
Act to meant by “of sound mind” in the making
will.
Marquis of Winchester (1598) 6 Rep 23
- “By the law, it is not sufficient that the testator
be of memory when he makes the will, to
answer the familiar and usual question, but
ought to have a “disposing memory”, so as to
able to make a disposition of his estate with
“understanding and reason”
SHA 2720 Law of Succession
 Cockburn CJ in Bank & Goodfellow (1870) LR 5
QB 549 at 567:
“As to testator’s capacity, he must, in the
language of law, have a sound and disposing
mind and memory.
In other words, he ought to be capable of making
his will with an understanding of the nature of
the business in which he is engaged, a
recollection of property he means to dispose
of, of the persons who are the objects of his
bounty, and manner in which it is distributed
between them.
 It can be inferred that in order to have
testamentary capacity,
i. Firstly, the testator must be capable of
understanding the nature of the will and its
effects in such way that the will shall only
take effect on his death and that it is always
recoverable before his death.
ii. Secondly, the testator must have the
capacity to understand the extent of the
property of which he/she is disposing
iii. Lastly, the testator must be able to
comprehend and appreciate the claims to
which he/she ought to give effect.
In other words, the testator must have
memory to recall the persons who may be
fitting beneficiaries and an understanding to
comprehend their relationship to him and
their claims upon him so that he can decide
whether or not to give each of them any part
of his property by his will.
Following the last of these no insane
delusion must influence his/her volition in
bringing about a disposal of property which,
if the mind had been sound, would not have
been made.
 It is a cognitive test, based on things pertaining to
understanding or knowledge.
 It does not take into account other human
faculties such as sensing, affections, feelings and
so on.
 It is sufficient if he has such mind and memory as
will enable him to understand the elements of
which it is composed, and the disposition of his
property in its simple forms. (Bank & Goodfellow)
Re Ng Toh Piew, Deceased; Tan Geok Eng (f) v Lok
Ah Ng [1950] MLJ 273
 9th March 1950, probate of a will was granted to
the defendant.
 The will was dated 19th Jan 1949 and the deceased
died on 29th Jan 1949.
 The plaintiff applied to the court to revoke the
grant and pronounce in favour of an earlier will
made by the testator dated 31st Oct 1947.
 The will dated 31st Oct 1947 was made after the
testator had been examined by doctor and it was
clear that he was then in fit state of mind and
memory to dispose of his property.
 Held: The testator was oblivious to his son’s claims
owing to his deficient memory caused by illness
and it was his deficiency in memory that caused
him to omit his son from his will and to say to
one of the witnesses that he had no child. The court
therefore pronounced the will dated 19th Jan 1949
to be invalid and revoked the grant of probate.
Battan Singh v Amirchand [1948] 1 All ER 152
 The instructions had been sent through an
intermediary.
 PC Held: The testator, who is proved to have
been in the last stages of consumption and to have
been reduced by disease to extreme weakness,
has declared in his will that he had no relations
anywhere, though if he had been of sound mind
in the sense of the cases cited he must have
known that the statement was untrue.
 Is that the will is the product of a man so enfeebled
by disease as to be without sound mind or memory
at the time of execution and that the disposition of
his property under it was the outcome of the
delusion touching his nephews' existence. The will
is, therefore, invalid.
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Requirements of a valid Wills
 However,
Tho Yow Pew v Chua Kooi Hean [2002] 4 CLJ 90.
 It was held the mere fact that the testator was
unwell at the time of the execution of the will
is a long way from saying that he had no
testamentary capacity.
Sethambal Doraiappah v Krishnavani Muniandy
[2004] 1 CLJ 869
 It was held that very slight testamentary capacity
was required for the making the will. It needs not
be proved that a testator must be in a perfect
state of health or that his mind is so clear as to
enable him to give complicated instructions.
 In other words, mere bodily ill-health or
imperfect memory may not necessarily vitiate
testamentary capacity.
Ing Chin v Gan Yook Chin [2003] 2 CLJ 19 CA
 Held: The mere fact that the testator was
seriously ill with cancer did not throw any doubt
on the validity of the will as there was ample
evidence that supported the testator’s
testamentary capacity. Once the testator
understood the dispositions of his will and it was
executed by him as his will, there was an end to
any suspicious circumstances and other
collateral issues raised against the validity of the
will.
 Thus, it may be seen that testamentary capacity is
not to be equated with contractual capacity.
 A person may lack the mental capacity to enter into
a contract and yet may have sufficient testamentary
capacity.
SHA 2720 Law of Succession
Vitiating Mental Capacity
 What the law primarily looks for as vitiating
mental capacity is mental disorder such as
insanity or delusion.
 Delusion is a belief in the existence of something,
which no rational person could believe and which
could not be eradicated from the testator’s mind
by reasoned argument.
 If the testator is eccentric or subject to one or
more delusion, such as a fact is not itself sufficient
to invalidate the will.
 It must be shown that the delusion or insanity has
an influence on the testamentary dispositions.
Bank & Goodfellow (1870) LR 5 QB 549
- The testator suffered from delusions that he
was personally molested by a man who had
long been dead, and that he was pursued by evil
spirits whom he believed to be visibly present.
- The testator however, though generally of weak
intellect, was able to manage his own affairs.
- Issue: whether the testator had lacked
testamentary capacity at the time of making the
will.
- Held: the delusions had not, nor were
calculated to have any influence on the
testator in the disposal of his property and
that, irrespective of these delusions, the state
of mental faculties was such render him
capable of making a will.
Delusion
 However, if the delusion overrides the judgment
and rationality of the testator it will render the
will invalid.
Dew v Clark [1926] 3 Add 79
- The testator had made a will leaving all his
property to his two nephews but left nothing to
his daughter who in his opinion was “a fiend,
monster and Satan’s special property”.
- The court found that the girl was indeed a very
nice little girl and there no reason that she
could not inherit her father’s property.
- Held: The will was invalid because the father
was affected by the delusion and appeared
to affect the will.
Time for Specifying Mental Capacity
 The relevant and material point of the time at
which the mental capacity of the testator needs to
be determined is the time at which the will is made
and not at some other earlier or later point of time.
 In cases where the testator lacks mental capacity
after the execution, or becomes of unsound mind,
the unsoundness will not affect the validity of the
will.
 If a will is impeached on the ground of
unsoundness of mind, the court must be satisfied
on a review of the whole evidence that the testator
was of sound mind, memory and understanding at
the time of its execution or that the will was made
during lucid interval.
Lucid Interval
Chamber and Yatman v Qeen’s Proctor [1849] 2
Curt 415
The court admitted an application for probate to a
will made during lucid interval even though
insanity had returned the next day to the extent
that the deceased killed himself.
Estate of Eusoff Mohamed Salleh Angullia
deceased [1939] MLJ 100
- The testator had suffered from attacks of
insanity in the past and had 4 occasions been
certified as insane and detained in a mental
hospital for short period.
- He had long lucid intervals between the attacks
and in 1938 he executed a will and codicil giving
most his estate to charity.
- The will was attested by the testator’s solicitor
and his doctor, both of whom agreed to the fact
that the testator, although physically weak and
mentally dull at the time, appeared to be of
sound mind, memory and understanding.
- The testator died three days later from
complication of diabetes.
- Held: As the testator appeared to have
numerous lucid intervals in past years, and as
the will, it’s seemed rational, these were
considered as proof of the testator clearly
understood the extent of his property and the
nature of the claims of others whom, to some
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Requirements of a valid Wills
- extent, he was excluding from participation, and
that the will was made during a lucid interval.
- The court pronounced for the validity of the will.
 Exception to the general principle that the
testator must be mentally capable at the time
the will is made.
 Even though the testator is not mentally capable at
the time he executed his will, the will still valid if
he is mentally capable, at that particular time, of
giving instructions to his solicitor to make the will.
Parker v Felgate [1883] 8 P.D.171
- A testatrix, being ill, gave her solicitor
instructions to prepare a will.
- Later, she went into coma, but was out of it, when
the will was ready.
- Someone signed the will on her behalf.
- At the time the will was signed, the testatrix did
not remember the instructions that she gave to
the solicitor.
- However, she did know that some time
previously she had given instructions to her
solicitor, and that she believed she was executing
a will made in accordance with those
instructions.
- Held: The will is valid.
 Two conditions must be satisfied before the rule
can be applied:
i. The will was prepared in accordance with the
testator’s instructions.
ii. At the time of execution he is capable of
understanding and does understand that he is
executing a will.
 In Parker’s case, this doctrine saves wills in bona
fide circumstances.
 The court will only apply the rule where there is no
ground for suspicion.
Battan Singh v Amirchand [1948] 1 All ER 152
- The instructions had been sent through an
intermediary
- PC refused to uphold the will on the grounds of
the attendant suspicion and suspicion that the
testator did not understand what he was doing.
SHA 2720 Law of Succession
Burden of proof
 The state of mind of a testator, whether is sound
mind or lack of it, is always a question of fact to be
decided by the court.
 The burden of proof of testamentary capacitylies
on the person propounding the will.
 He or she is to satisfy the court that it is the last
will of free and capable testator.
***Barry v Butlin (1838) Moo PC 480
- An elderly man executed a will at the house of
his attorney.
- The attorney who had prepared the will took
one quarter of the estate.
- The will excluded the son and other family
members.
- There was much to excite the suspicion of the
court. However, after having heard evidence
from the witnesses the court found that there
were no suspicious circumstances.
- Held: The will was valid.
- Parke B said: “The onus probandi lies in every
case upon the party propounding a will; and he
must satisfy the conscience of the court that the
instrument so propounded is the last will of a
free and capable testator.”
 The propounder must satisfy the court:
 Firstly, the will complies with the requirements of
a valid will and this must be done in the very first
instance when the will is propounded to the court.
Dr. Shanmuganathan v Periasamy s/o
Sithambaran [1997] 3 MLJ 61;
Eu Boon Yeap v Ewe Kean Hoe [2008] 2 MLJ
868.
 There will be a misdirection of law if the party
who challenges the validity of the will is, in the
first instance, posed the burden of proving his
case, the failure of which, results in the
pronouncement that the will is not valid.
Udham Singh v Indar Kaur [1971] 2 MLJ 263
 The plaintiff / appellant had applied for revocation
of the grant of probate and there had been an order
directing a trial to determine the validity of the
will.
 The plaintiff / appellant alleged that the testator
had no testamentary capacity and that he did not
have the requisite knowledge and approval of the
said will.
 At the time of making the will the testator was a
patient in hospital and had suffered from strokes.
 The learned trial judge pronounced in favour of the
will as he decided that the plaintiff / appellant had
failed to discharge the onus of establishing
testamentary incapacity on the part of the testator.
 On appeal, it was held that the learned trial judge
was wrong in putting the burden of proving
testamentary incapacity on the plaintiff/ appellant.
 Ismail Khan CJ said: “in this appeal, the appellant
was correct in his submission that the judge was
wrong in placing such an onus on the plaintiff…it is
clear law that burden of proving testamentary
capacity rested on the defendant. There was
therefore a misdirection on the part of the judge in
putting the burden of proving testamentary
incapacity in the first instance on the appellant.”
 The court affirming the principle laid down in
the case of Barry v Butlin
Dr. Shanmuganathan v Periasamy s/o
Sithambaran [1997] 3 MLJ 61;
- Held: It was the propounder to prove that the
alleged will was duly executed, and then only
would the challenger have to prove that the
alleged will was forgery.
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Requirements of a valid Wills
 Secondly, the propounder of a will must also dispel
any suspicious circumstances lurking behind the
execution of the will.
 A classic instance of a suspicious circumstances is
where a will is prepared by a person who takes a
substantial benefit under it.
 Another instance is where a person is active in
procuring the execution of the will uner which he
takes substantial benefit by suggesting the terms of
the will to the testator and instructing a solicitor
chosen by that person.
The Estate of Hew Wai Kwong, deceased [2000]
5 CLJ 604
- There was a petition by Sarah bte Abdullah @
Hew Lee Ling (petitioner) for the grant of
probate in respect of the will dated 29 jan 1993
made by her late father.
- The will was executed on the hospital bed when
the testator was diagnosed to suffered from a
stroke.
- He was warded for almost a week and was
treated for his stroke, hypertension and diabetes.
- Consequently, various medicines were
prescribed for the diabetes, high blood pressure
and blood circulation in the brain of the testator.
- The petitioner in her evidence said that she
brought the will to the bedridden testator, to
whom the petitioner read the will in English,
paragraph by paragraph and then translated the
will into the Hakka dialect, as obviously the
testator did not understand English.
- The petitioner claimed that testator had nodded
his head in agreement.
- The will was attested by two witnesses who did
not understand Hakka at all and they testified
that they spoke to the testator in English.
- The solicitor who prepared the will did not act
on the instruction of the testator and as a matter
of fact, the testator had never met the solicitor at
all.
- The will was prepared on the exclusive
instructions of the petitioner.
SHA 2720 Law of Succession
- The petitioner was undoubtedly and
unambiguously the prime mover for the
preparation of the will.
- The acts and conducts of the petitioner are
absolutely suspicious.
- The change from the testator’s usual solicitor,
who had prepared his previous two wills, to the
new solicitor who had never spoken to the
testator regarding the disposition of his assets
in the will was a bizarre situation.
- What more if the solicitor and the witnesses to
the will were the petitioner’s personal friends.
- A testator of proper testamentary capacity
would normally take precautions when altering
his will or disinheriting his near relations by
referring to his usual solicitors who have acted
for him on previous occasions.
- Therefore, the will was held to be invalid due
to inter alia the existence of suspicious
circumstances surrounding the making of
the will.
Distinguish the case between Parker v Felgate
and Battan Singh Amirchand
 In Parker v Felgate the testatrix at that particular
time, of giving instructions to his solicitor to make
the will, she was mentally capable, even though at
the time the will was signed, the testatrix did not
remember the instructions that she gave to the
solicitor, the court declared the will is valid and
that she believed she was executing a will made in
accordance with those instructions.
 However, in Battan Singh case, testator
instructions had been sent through an
intermediary to the solicitor, and it was not the
solicitor who had acted for the testator on
previous occasions or even ask him to send the
previous wills or copies of them, as these are the
precautions which a testator of sound mind who
deliberately intends to alter his will and to
disinherit his near relations, would naturally take.
Therefore, it was held that the will was invalid
on the grounds of the attendant suspicion and
suspicion that the testator did not understand
what he was doing.
Presumptions that Could be made by the Court
 It is important to know on whom the burden of
proof lays if there is a question of mental incapacity
to be determined.
 In this relation there are certain presumptions that
could be made by the court is there is no evidence
available as to the mental state of the testator at
the time when the will is made.
 If the will rational on its face, it can be presumed
that the testator was sane at the time when it was
made.
 Accordingly, where a will, rational on its face, ie
being attacked, the person attacking may either
prove that the testator did not have adequate
mental capacity generally, or that he lacked the
capacity at the particular time the will was made.
 When this is done, the burden of proof shifts once
again to the propounder to establish that
notwithstanding the general incapacity, there was
adequate capacity at the time when the will was
made.
 If the will is irrational in its face, the presumption is
that the testator did not have adequate mental
capacity, so that those propounding it must satisfy
the court of the testator’s capacity at the time when
the will was made.
 However, this presumption is always rebuttable
when the party can prove to the contrary, as in the
case of
Harwood v Baker (1840) 3 Moo PC 282
- The will of the testator was held invalid,
although the disposition of the property was
rational on its face.
 Another presumption that may be made by the
court is the presumption of the continuance of a
mental state.
 If the court is satisfied that a testator had full
mental capacity sometime before making a will, the
court will presume that the testator continues to
have that capacity until the will was made.
 Likewise, when there is incapacity before making
the will, the presumptions is the testator was
incapacitated and continued to be incapacitated at
the time when the will was made.
4
Requirements of a valid Wills
Intention
 The questions is whether, by the act which he does,
the testator intends to make disposition of his
property to take effect on his death, or to do any of
the other things which can be done by the will.
 The tests are:
i. If the document appears to be testamentary on
its face or appearance, the presumption is that
the testator had the intention of making the
will.
However, this presumption can be rebutted by
cogent extrinsic evidence proving that the
document was not intended to take effect at
death.
ii. Conversely, if the document dose not appear to
be testamentary on its face, the propounder of
the will must prove that it was intended by the
testator to take effect at his death.
Hsu Yik Chai v Hsu Yaw Tang & Anor [1982] 2
MLJ 227
- The testator had made a will giving a piece of
land to his brothers (respondents) and his wife
“to take rightful possession so as to assist them
towards the expenses of bringing up and
educating my children until they became
matured”.
- The widow of the deceased left the children to be
brought up by the respondents until they were
grown up.
- The appellant was adopted by the second
respondent and his wife but he subsequently left
to live with his mother.
- The deceased land was later transferred to the
respondents.
- The appellant lodged a caveat against the lands
but learned judge dismissed his claim.
- On appeal, it was held that the direction in the
will to the respondents and the widow in
bringing up and educating the children until they
attained majority was a condition of the bequest
of the property.
- The respondents had accepted the bequest and
the condition imposed by the will.
SHA 2720 Law of Succession
- The deceased intended to create a
conditional gift and the two respondents but
not the widow had fulfilled the condition.
- The two respondents were therefore entitled
to keep the land.
Genuine Free Choice
 The testator, in making of a will, needs to do it as a
matter of free choice.
 If a will is accompanied by force, fear, forgery or
undue influence, the will or the affected part that
is produced in this way, is not regarded as the act
of the testator, and so probate will be refused.
 The onus of establishing any these extraneous
vitiating elements lies on those who assert this to
be so.
Carmel Mary Soosai v Josephine Lourdasamy
Ratnavathy R. Soosai & Ors [1987] 2 CLJ 426
- The testator, by his last will, appointed his wife
as the sole executrix and trustee and left her the
residue of his real and personal estate to the
exclusion of the caveators who are the children
by his previous marriage.
- One of the grounds for the caveators
challenging the deceased’s last will and
testament was that the will was not voluntarily
executed by the deceased as the wife exercised
undue influence over him.
- On this ground, it was held that to establish
undue influence sufficient to invalidate the
deceased’s will, the caveators must that the
petitioner coerced the deceased into executing
the will in the form that it had taken and that
the will was not voluntary act of the deceased.
The coercion exercised may take the form of
any pressure of whatever character. The
relationship of a person who is alleged to have
exercised unbounded undue influence over
another does not raise a presumption of undue
influence sufficient to vitiate a will.
- Thus, the fact that the petitioner was the
wife of the deceased at the time the will was
executed, does not in itself raise the
presumption that she had unduly influenced
him into executing his will.
- In ths case, as the caveators failed to identify
the coercion or pressure that had been practiced
by the petitioner over the deceased leading to
the execution of the will, they had not discharged
the burden put on them.
- Therefore, the will was held to be a valid one and
probate was granted to the petitioner.
Subramaniam v Rajaratnam [1957] MLJ 11
- A testatrix bequeathed a house to the
respondent who had cared for her in her
declining years.
- The appellant opposed the grant of probate to
the respondent on the grounds that the testatrix
did not understand the terms of the will and if
she had done so, she would not have executed it
and that the testatrix was under the influence of
the respondent when she executed the will.
- On the evidence, it was proven that the
instrument in question was the last will of a
free and capable testatrix.
- The burden to prove undue influence is on the
appellant but he had failed to do so, on its
existence.
 Although the onus of establishing the extraneous
vitiating elements lies on those who assert this to
be so,
 The principle does not override the onus of the
propounder to establish that the will is a will of a
free and capable testator.
Morris & Ors v Norie Lim & Ors [1928-41] SCR
24
- The testatrix made a will providing for her
daughters, grandchildren and other relations
and various legacies were left to the Roman
Catholic Church and person connected
therewith.
- At the making the will, the testatrix was acutely
ill with severe pain and her brain was affected to
some extent.
- She had been received into the church either on
the day the will was made or short time before.
5
Requirements of a valid Wills
- The will was dictated to her and taken down by a
Roman Catholic priest who himself took an
interest in the estate on behalf of the mission.
- Held: though there was no evidence of fraud or
undue influence, the plaintiff had not discharged
their duty of proving that the will propounded
was the will of a free and capable testatrix.
- As the parts dealing with different subjects were
separable, the clauses providing for the relations
of the testatrix should be admitted to probate
and the clauses concerning the Roman Catholic
Mission should be set aside.
 On the other hand, if the alleged extraneous
element can be proved, the will shall be declared
aas invalid.
Re Estate of Loh Ah Tong [1949] 15 MLJ 120
- Issue before the court was the genuineness of the
signature “Loh Ah tong” on the will.
- The will was attested by Mr Osborne-Jones, an
advocate and solicitor of Singapore, and his clerk,
but evidence it appeared that Mr Osborne-Jones
had no personal knowledge of the person who
had made the signature on the will.
- The clerk had attested the signature had died.
- An expert on Chinese character writing gave
evidence that the signature was not made by the
deceased.
- Held: the defendant had discharged the onus
thrown on her and had proved that the
propounded will was a forgery.
SHA 2720 Law of Succession

in identifying the signature of the testator, the
opinion of expert witnesses was admissible in
evidence and there was no requirement in law
that such evidence be corroborated.
- The learned trial judge should have accepted
the expert evidence that the signature in the
will was not the signature of the deceased.
- The learned judge ought to have so concluded
having regard to the evidence in its totality,
including the very unlikelihood of an extremely
careful and cautious non\_practising lawyer like
the deceased to have simply walked into a law
firm to have his last will drawn up by a solicitor
with whom he had no previous dealing, and yet
leaving the will at the solicitor's office without
making any payment or even collecting it or
leaving any instructions to the solicitor.
- These suspicious circumstances in which the
will had suddenly appeared together with
the evidence of the expert had proved
beyond reasonable doubt that the will was a
forgery.

Dr. Shanmuganathan v Periasamy s/o

Sithambaran [1997] 3 MLJ 61
- In this case, the plaintiff adduced expert evidence
on comparing 20 undisputed signatures of the
deceased with the disputed signature in the
alleged will.
- There were three fundamental differences in the
signature and the expert was on the opinion that
the will was a forgery.
- Held: The trial judge in this case disregarded the
evidence and misdirected himself and held that