TOPIC 7

Estate Administration: process of compiling & managing a deceased’s assets, settling any debts and
distributing the remaining assets to the rightful beneficiaries

3 bodies involved

- High Court (testeate)

- Small Estate Unit (interstate)
- Amanah Raya Berhad (movable)

Section 3(2) SEDA : ssets of the deceased consists in whole/in part of immovable property +

total value less than RM2 million.

(S.4 SEDA (Amendment) 2008)

WILL

Introduction

 Before the application for administration may be proceeded with – the status & validity of
the Will must be first determined.

 A Will must comply with the requirements of the law.

 Wills Act 1959 (Act 346) - Peninsular & Sarawak.

 Wills Ordinance (Sabah Cap 158)

 Theses laws are inapplicable to

 Muslims (S.2(2) WA)

 Natives in Sarawak & Sabah

1 : LAST WILL & TESTAMENT

 The propounder of the Will must prove that the Will is the last Will of the deceased.

 Interested party may challenge that the Will is not the last Will of the deceased and produce
a second Will.
 Hence, we need to know how to determine whether it is the last Will of the deceased.

Revocation of a Will

Involuntarily Revocation (by operation of law/automatic)

(1) Marriage (s.12 )

 A Will is revoked by a marriage/re-marriage.

Exception: The Will is expressed to be made in contemplation of marriage with a specified person.

Re Wan Kee Keong (1975) 2 MLJ 152

Re Lee Kim Chye (decd) (1936) MLJ 49

 Divorce/ separation does not revoke a Will.

(2) Conversion to Islam

 because the distribution will automatically follow the Faraid.

(ii) Voluntarily Revocation

 A Will can be revoked by the following acts: Section 14

a) New Will:

- a subsequent Will would revoke an earlier Will

- requires an intention to revoke on the part of the Testator.

Re Hawksley’s Settlement (1934) Ch. 384

The description of the Will as the Testator’s ‘last will’ was not sufficient for an express revocation
clause. The words ‘I revoke’ must be embodied in the revocation clause.

 A Will commonly contain a declaration that it is the Testator’s Last will and a Revocation clause
cancelling all his former Wills/testamentary dispositions.
Example:  LAST WILL & TESTAMENT OF NARUTO UZUMAKI

I, Naruto Uzumaki, IC No. 987654-12-3456 of No.99, Jln Bukit Beruang, Ayer Keroh Lama, 75450
Melaka being of sound mind hereby declare that this is my Last Will and Testament (‘this Will’).

I hereby revoke all wills and codicils previously made by me.

b) Written Declaration

o The Testator can make a written statement of his intention to revoke the Will and signed in
the presence of 2 witnesses.

o Revocation may be of   whole/part of the Will

c) Destruction

 The Testator (or other person on his direction) can destroys the Will with the intention of
revoking it.

 Accidental/malicious destruction by a 3rd party does not constitute revocation.

 2 elements must present:-

- actual destruction of the will; and 

- an intention to revoke the will.

(i) Actual destruction

- burning, tearing/‘otherwise destroying’ the Will. 

- ‘Otherwise destroying’ has been construed using the ejusdem generis rule to require
that the acts of destruction are of the same kind as burning & tearing.

Re: Morton’s Goods (1887) 12 PD 14

The Testator’s signature was completely scratched out.  It was held that the same amounted
to ‘otherwise destroying’.
 Re Adams (1990) 134 Sol. Jol. 518

Parts of a Will were heavily scored through with a ballpoint pen.  The relevant parts were
held to have been actually destroyed.

Cheese vs. Lovejoy (1877) 2 PD 251

A Testator cancelled his Will by striking out its clauses and his signature with a pen and then
writing at the back of the will   ‘All these are revoked’.  He threw the Will in a pile of waste
paper in the corner of the room where his house cleaner retrieved it and kept it in a kitchen
drawer until the Testator’s death 8 years later. 

It was held that what he did had not amounted to “otherwise destroying”. Although he
intended to revoke the will, it had not been destroyed and it was admitted to probate.

 The acts of destruction must be by the testator or by some other person in the testator’s
presence and under his direction.

Re: Dadd’s Goods (1857) Dea & Sw. 290

A Testator on her deathbed expressed a wish to revoke a codicil.  Her executor and a neighbour
went out of her presence into the kitchen and burnt the codicil.

It was held that there was no actual destruction.

Gill vs. Gill (1909)

The Testator’s wife tore up his will in a fit of temper.

It was held that there was no actual destruction as the will was not destroyed under direction.

 With respect to intention to revoke, the testator must have the same capacity to revoke as is
necessary to execute a valid will.

Re Aynsley (1973) 1 Ch. 172

A testatrix who was old and confused tore her will into forty pieces. The judge put the pieces
together in a one-hour operation.

It was held that the testatrix lacked mental capacity to revoke and the will was therefore still
valid.
  The destruction must not be accidental. If a testator is under some mistaken belief, for
example that the will is invalid, a destruction of the will in the circumstances would not lead
to revocation, as there would be no intention to revoke.

Revival of a revoked Will

 A testator may revive a will that has been revoked, provided that it has not been completely
destroyed.

 Section 16(1): A revoked Will can be revived by

(i) re-execution of the Will (with proper formalities)

(ii) a codicil

Tan Kok Nam & Anor. v Liew Nam Foong [2000] 5 CLJ 533

- There should be an intention to revive the revoked document

  

Alteration of Will

(i) Alteration by adding a Codicil to the Will.

 “Will” as defined by S.3 Interpretation Act 1948 & 1967 = a testamentary document of any
description, including a codicil

 A codicil is

- an annexure/supplementary to an earlier Will in a separate document.

 It effectuates a change in an existing Will without requiring the Will be re-executed.

 Amendments made by a codicil can be in the form of alteration, explanation, addition to,
subtract from/confirmation.

 If major changes are required, it is preferable to execute a new Will rather than to have 2
documents that may be difficult to read together.

 A codicil has to meet the same formal requirements of a Will. The witnesses may be
different people to those in the original Will.

 It is very important that a codicil does not contain a clause revoking previous wills, otherwise
it may cancel the Will it was meant to update.
(ii) Alteration on the face of the Will

 Must comply with Section 15 because as a general rule alteration after execution is void

Section 15: No obliteration (rubbing out), interlineation (writing between lines)/other

alteration made in any will after the execution thereof shall be valid/ have any effect…

except so far as the words or effect of the will before such alteration shall not be apparent,
unless such alteration shall be executed in like manner as hereinbefore is required for the
execution of the will…”

EXCEPTIONS

(i) The words of the Will before such alteration shall not be apparent

- Effective even though not executed similar to a Will

- Ffinch v Combe (1894) P 191
- Re Horsford (1874) LR 3 P & P & D 211
- Re Itter

(ii) Execute the amendment similar to Will

- (must signed by the Testator and witnessed by 2 witnesses)

- even though the wording is still apparent, the amendment is valid
- all signatures to the alteration must be made as close as possible to the alteration itself; this
is usually done in the margin of the Will.
- Re Choo Kim Kiew (1949) MLJ 144

# advisable for minor amendment

2. VALIDITY OF THE WILL

TESTATOR

 The opening words of a Will should clearly identify the Testator by his full name and description
of his recent address.

Example:

I Naruto Uzumaki, IC No.: 987654-12-3456 of No.99, Jln Bukit Beruang, Ayer Keroh Lama, 75450
Melaka being of sound mind hereby declare that this is my Last Will and Testament (‘this Will’).
(1) Attained the Age of Majority

 Section 4: No Will made by any person under the age of majority shall be valid. Thus, a Will
made by a minor is void.

 Section 2 Age of Majority Act 1971 = 18 (Peninsular & Sarawak)

 However, for Sabah, s.4 Sabah WO specifically state = 21 years old

Exception: Privileged Will - s.26(4)

(2) Have Testamentary Capacity

 Testamentary capacity refers to (i) mental capacity, (ii) free will and (iii) intention

(i) Mental capacity

Section 3: Every person of sound mind may devise, bequeath/ispose of by his will…

What is sound mind? Since there is no definition in the Wills Act, the court adopt Common law
test.

Banks v Goodfellow

UNDERSTAND

 Nature of a Will and its effects

 Extent of the property of which he is disposing

 Nature of the claims to which he ought to give effect

 “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 the bodily health, that is to be attended to”

Re Ng Toh Piew

Illustrate the case of testamentary incapacity. Due to illness, his memory ws deficient and omit his
son from the Will

Vitiating Mental Capacity

 Mental disorder e.g. Insanity, delusion

 It must be shown that the delusion/insanity has an influence on the testamentary dispositions.
 Banks v Goodfellow (1870) LR 5 QB 549

Dew v Clark [1926] 3 Add 79, 162 ER 410.

 The Testator must be mentally capable at the time the Will is made. Not earlier/later point of
time.

Chamber and Yatman v Queens’s Proctor[1849] 2 Curt 415

In the Matter of the Estate of Eusoff Mohamed Salleh Angullia deceased [1939] MLJ 100.

Burden of Proof

 The burden of proving testamentary capacity is the person propounding the Will (person who
produce the Will/claim existence of a Will)

Barry v Butlin (1838) 2 Moo PCC 480

Eu Boon Yeap v Ewe Kean Hoe [2008] 2 MLJ 868

 In ordinary cases, if there is no suggestion to the contrary, any man who is shown to have
executed a will in ordinary form will be presumed to have testamentary capacity.

 But, the moment the capacity is called in question, then at once the onus lies on those
propounding the will to affirm positively the testamentary capacity.

Tho Yow Pew v Chua Kooi Hean [2002] 5 CLJ 58

Krishnavani a/p Muniandy v Sethambal d/o Doraiappah [1998] 7 MLJ 366

Suspicious Circumstances

 The propounder also has the burden to remove suspicious circumstances that may surround the
making of the Will.

Barry v Butlin (1838) 2 Moo PCC 480

 Example of suspicious circumstances:

- the will is prepared by a person who takes a substantial benefit under it.
- the person is active in procuring the execution of the will & takes substantial benefit
The Estate of Hew Wai Kwong, deceased [2000] 5 CLJ 604

Batam Singh v Amirchand [1948] 1 All ER 152.

 The suspicious circumstances relates to circumstances surrounding the making of the will NOT
the circumstances surrounding the testamentary capacity of the Testator.

Tho Yow Pew v Chua Kooi Hean [2002] 5 CLJ 58

(ii) Free Will

 Testator must be acting on his own free will and not under any undue influence or force
during the execution of Will.

 If a Will is accompanied by undue influence, force, mistake, fraud/forgery the Will is Void.

 The onus of establishing any of these extraneous vitiating elements lies on those who
assert.

Carmel Mary Soosai v Josephine Lourdasamy Ratnavathy R Soosai [1987] 2 CLJ 426

Re Estate of Loh Ah Tong [1949] LJ 120

Subramaniam v Rajaratnam [1957] MLJ 11

(iii) Intention

 There is a presumption that the testator had the intention of making the will, if the Will
appears to be testamentary on its face.

 This presumption can be rebutted by cogent extrinsic evidence proving that the document
was not intended to take effect at death.

 However, if the Will does NOT appear to be testamentary on its face, the propounder must
prove that it was intended by the Testator.

Hsu Yik Chai v Hsu Yaw Tang (1982) 2 MLJ 227