5.

Son and Sharon (adopted daughter )

The issue is whether the fifth clause, where Sharon who is an adopted children and the
son who is legitimate can share the residue of the property equally together, is valid or not?

Law

From s.28 of Will Act 1959, movable property and immovable property in Malaysia can
be executed in a will for purpose of admitting to be probated. An adopted infant is legally treated
as a child who is born to her or his adopters in lawful wedlock.1 Where the adopters are two
spouses, the infant is treated in a way that the adopters are his lawful mother and father.2 Thus,
an adopted infant will enjoy all the privileges and rights of an ordinary child born in lawful
wedlock, especially the right to inherit the property under the Inheritance (Family Provision)
Act 1938 and right to exercise as ‘a child of marriage’ for the purposes of Law Reform
(Marriage and Divorce) Act 1976.3 In s. 2 of Adoption Act 1952, an adopted child enjoys the
same right as legitimate child. In case of Yeap Chan Aik v Yeap Chan Hoe & Ors 4, the
plaintiff was a child registered under Registration of Adopted Child Ordinance 1952 and claim
against the estate of deceased. The court dismissed the application of plaintiff. The court held
that the Distribution Act 1958 only acknowledges an adoption of a child according to the
Adoption Act 1952 as a child for purpose of receiving estate.

Application

In this case, the testatrix, Brenda Chan expressly stated in the first will as “the residue of
her properties to be shared equally between her son and her adopted daughter, Sharon.” Sharon is
an adopted daughter of testatrix. The residue of property is immovable property and is a gift.
This fall under s.28 of Will Act 1959. By applying s.16 (1) of Adoption Ordinance 1960, an
adopted infant is treated as child of the adopter. In this, adopter is Brenda Chan, while, adopted
children is Sharon. Sharon enjoys the right to inherit the property equally with David under
Inheritance (Family Provision) Act 1938 and can exercise the right as child marriage under
Law Reform (Marriage and Divorce) Act 1976. Moreover, by applying s.2 of Adoption Act

1
S.16(1) of Adoption Ordinance 1960
2
S.16(2) of Adoption Ordinance 1960
3
Under s. 3(4), this Act is also applicable to natives if they are willingly to be governed under it . Under s. 3(3), this
Act is not applicable to the muslim.
4
(2000) 1 MLJ 78
1952, an adopted child enjoys the same right as legitimate children. By applying Yeap Chan
Aik v Yeap Chan Hoe & Ors, the court only acknowledge the right of an adopted children to
inherit according to Adoption Act 1952. In this case, Sharon is adopted children .Thus ,she is
entitled to share the property.

In conclusion, the fifth clause is valid. Sharon who is an adopted daughter is entitled to
share the property equally with the son, David.

6. Susan (Daughter):

The legal issue is whether the sixth clause where Susan, who is daughter of previous
marriage, is given with a necklace worth RM10,000 is valid or not?

Law

From s.28 of Will Act 1959, movable property and immovable property in Malaysia can
be executed in a will for purpose of admitting to be probated.The making of a later Will does not
revoke the former Will as long as it is consistent. If a clause, which revokes the former Wills, is
added, the former Will is revoked. The principle of revocation is where in an earlier Will, the
testatrix, leaves a specified house to A and in a later Will leaves the same house to B, the house
will go to B. There is implied revocation as by his conduct the testatrix had evinced an intention
that B must have the house instead of A. The gift to A is impliedly revoked because there is such
an inconsistency that the later clause prevails. However, where in a Will, the testatrix made a gift
of RM500 to X and in a later Will which does not contain a revocation clause leave RM 500 to
Y, both X and Y will receive the legacies of RM 500 each. 5 In Gan Kim Heng v Lee Siew Seok
6
, the Federal court held that the general rule that if two parts of a Will are totally inconsistent
and cannot possibly be reconciled, the later shall prevail, but subject to an exception. This
exception is that the general rule does not apply where the prior clause was expressed and the
revocation in the later clause was only by necessary implication. In case of Fatimah v Logan 7,
the general rule is that the later provision did not override the former provision if it is not

5
Sidhu, Mahinder Singh, The Law of Wills, Probate Administration and Succession in Malaysia and Singapore with
Cases and Commentaries (International Law Book Services, Kuala Lumpur 2005). Pg 60-61
6
(1970) 1 MLJ 85 FC
7
(1871) 1 Ky 255
reconcilable. The intention of later provision is applied if it would could effective the will. In
Case of Quaik Kee Hock v Wee Geok Neo8, the court ruled that a subsequent ambiguous clause
in a Will which is somewhat inconsistent with a previous ambiguous clause, does not necessarily
revoke the previous clause. The court would construe the ambiguous clause so that they may
stand together. In case of Hsu Yik Chai v. Hsu Yaw Tang & Anor 9, the court held that the
object of interpreting a will is to give effect to the intention of the testatrix that is expressed in
the words of the will and such words are to be read in the light of the circumstances in which the
will was made.

Application

In this case, from the old will, the sixth clause is stated as “a necklace worth RM10,000
to her daughter, Susan who suffered autism.” The eight clause of codicil stated that “Susan does
not receive anything as her previous husband is a wealthy man”. By applying the rule of Gan
Kim Heng v Lee Siew Seok, if the clause the former will was expressly stated, and the clause of
codicil is only by implication, then the latter clause of codicil does not prevail. In this, the sixth
is not expressly stated by testatrix and does not mention that the eight clause of codicil was
merely by implication. Thus, the latter provision where Susan does not receive anything prevails,
By applying principle of Gan Kim Heng v Lee Siew Seok , the latter provision shall prevail if
there are two inconsistent part of provision. The latter clause is contradicting with the former
clause. Thus, the clause of codicil shall prevails and therefore Susan is not allowed to receive
anything from the will. By rule of Quaik Kee Hock v Wee Geok Neo, the court would constru
both ambiguous clause to stand together. In this case, the two clauses cannot be construed
together as the testator expressly stated that Susan cannot receive anything in codicil. Thus, the
latter provision prevails. By rule of Hsu Yik Chai v. Hsu Yaw Tang & Anor 10, interpreting a
will is to give effect to the intention of the testator that is expressed in the words of the will. The
testatrix expressly stated that Susan does not entitle anything. Her intention to revoke the gift is
clear . Hence, The clause of former will is invalid. The necklace is movable property under s.28
of Will Act 1959.Thus, Susan cannot receive the necklace which is moveable property.

8
(1886) 4 KY 128
9
1982 2 MLJ 227
10
1982 2 MLJ 227
 In conclusion, the clause in the previous will, which stated that a necklace worth RM
10,000 to her daughter is revoked by a subsequent codicil.

8. Miss Eunice chan

The legal issue is whether Miss Eunice Chan share the property with testator’s sn and
adopted daughter or not?

Law

In case of Cutto v Gilbert11, the general rule is that the express revocation is sufficient if
there is a clause like ‘ I hereby revoke all wills, codicils and testamentary dispositions previously
made by me’. In Lowthorpe-Lutwidge v Lowthorpe-Lutwidge 12, the testator stated a clause “
I revoke all former Wills this being my last will and testament’. The significant words in this
clause were the opening ones. Had the testator simply stated ‘this is my last will and testament’ it
would have been insufficient for an express revocation. The court held that the earlier
dispositions were revoked because the burden of proving that the testator had not intended to
revoke them had not been discharged. In Sotheran v Denning, the testatrix executed a will
exercising a power of appointment over realty. Later she made another will revoking all former
wills, and later still a third will bequeathing only her personalty, but again revoking all former
wills. She had no realty other than that subject to the power of appointment. It was held that the
first will was revoked by the second, and the second by the third. Hence the realty passed as on
default of appointment. In s.30 (3) of Wills Act 1959, the construction of Wills is required to be
construed in accordance to the law of Malaysia, subject to the Evidence Act. In case of William
Tan Sam Kit v Ngui Ban Lee13, there are two matters to be considered. First is the intention of
the testator disclosed by the will, and the second is the manner in which the effect can be given
to that intention.

Application

11
(1854) 9 Moo Pc 131
12
[1935] P 151
13
(2000) 1 MLJ 574
 In this case, the codicil of first will stated that “Miss Eunice is beneficiary and share the
property with son and adopted children”. The subsequent codicil is added and stated that testatrix
wish to revoke his gift to her sister, Eunice pertaining to the residue of the property. By rule
Cutto v Gilbert, Madam Brenda stated that she revoke the gift of Miss Eunice in the codicil.
This is express revocation. The present case is similar to case of Lowthorpe-Lutwidge v
Lowthorpe-Lutwidge where the testator used the words “I revoked the former Will”. By virtue
of this case, the former clause made by testatrix is revoked expressly. By applying the principle
of Sotheran v Denning, the second clause of codicil revokes the first will. By applying s.30 (3)
of Will Act 1959, the subsequent codicil is required to be construed. By rule of William Tan
Sam Kit v Ngui Ban Lee, the intention of Madam Brenda is revealed thru the codicil by
expressly written in a way that revoke the residue of the property and show her intention to give
the residue of property to the children. Moreover, the manner Madam Brenda wrote the will is
very clear that she wish to revoke the will. Therefore, the subsequent codicil can be construed to
revoke the gift of Miss Eunice in the first will.

In conclusion, the previous clause containing that Miss Eunice can share the property
with son and adopted children is revoked. Miss Eunice cannot share property with her son and
adopted children.

9. David (son):

The legal issue is whether the first clause of codicil is valid or not? Whether David is
entitled to inherit the savings from Matahari, Bulan and Awam Bank Bhd or not?

Law

Under S 2 of Legitimacy Act 1961, a legitimate son means ‘a person legitimated under
the prescribed date of States of Perak, Selangor, Negeri Sembilan, Pahang , Kedah, Kelantan,
Terengganu, Perlis, Sabah and Sarawak. From s.28 of Will Act 1959, movable property and
immovable property in Malaysia can be executed in a will for purpose of admitting to be
probated. In construction of intention from the will, the narrow approach can be used to take the
literal meaning of the words used by the testator.14 In case of Doe v Gwillim 15, in expounding a
will, the court is to ascertain, not what the testator actually intended, as contradistinguished from
what his words express, but what is the meaning of the words he has used. In case of Lowe v
Thomas 16, the testatrix left ‘the whole of my money’ to her brother for life and on his death to
the brother’s two daughters, with ultimate remainder to the survivor. The estate included stocks
and a small amount of cash. It was held that the bequest only passed the cash depending on
intention of testatrix. The ‘whole of my money’ literally means description of money. In case of
Re Hodgson 17, the testatrix made a will leaving ‘money’ to a named beneficiary. She had cash
in hand and a saving certificate. The court only pass the cash to the beneficiary,while, the saving
certificate is intestate. In case of Fatimah v Logan 18, the general rule is that the later provision
did not override the former provision if it is not reconcilable. The intention of later provision is
applied if it would could effective the will.

Application

In this case, Madam Brenda adds a codicil that “David is to receive all my savings and
joint savings in Matahari Bank Berhad, Bulan Bank Berhad and Awan Bank Berhad
respectively.” The savings in all these banks are considered as ‘moveable property’. This fall
under s. 28 of Will Act 1959. By rule of Doe v Gwillim , the court is to ascertain the literal
meaning of the word. In this case, the saving is literally referred to saving and joint saving from
Matahari,Bulan and Awam Bank Berhad. The fact is similar to the case of Lowe v Thomas and
Re Hogson, where the testatrix left ‘money’ to a beneficiary. By virtues of Lowe v Thomas and
Re Hodgson, the literal meaning of the gift is interpreted to express the intention of the testatrix.
Based on the fact, the word ‘saving’ includes the saving from all three banks. Thus, testatrix has
intention to bequeath all the saving to David. By applying the principle of Fatimah v Logan, the
latter provision shall prevail in case where there are two inconsistent parts of the will. The
codicil revokes the third clause of the will. The codicil added prevails.

14
Andrew Borkowski, Textbook on Succession (2nd edn Oxford University Press, London 2002).Pg 174 -175
15
(1833) SB&Ad 122
16
(1854) 5 De GM&G 315
17
[1936] Ch 203
18
(1871) 1 Ky 255
 In conclusion, the codicil which is stated that David can receive all Madam Brenda
Chan’s saving in Matahari, Bulan and Awan Bank Berhad respectively , is valid. It is added as
part of the new will.