New Equity Law

LXEB 3110 Equity Exam Notes
2015/2016
TABLE OF CONTENTS
MAXIMS OF EQUITY...........................................................................................................2
EQUITABLE INTERESTS IN PROPERTY......................................................................28
ESTOPPEL.............................................................................................................................42
ASSIGNMENT OF PROPERTY.........................................................................................49
FIDUCIARY OBLIGATIONS.............................................................................................59
EQUITABLE REMEDIES: INJUNCTION........................................................................65
TRACING...............................................................................................................................78
ADMINSTRATION OF ESTATES AND INTESTACY...................................................86
WILLS.....................................................................................................................................99
*The purpose of these notes is to layout all that we have learn based on tutorials and lectures
for exam purposes. My opinion is that ultimately, equity is a highly fact based subject. As
long as you can lay out the law, you can then bend the facts to suit the law.
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MAXIMS OF EQUITY
*Note: For Maxims, Dr Usha has indicated that she wants majority Malaysian cases. Thus,
for the maxims, make sure you put in one English case and then back it up with a Malaysian
case. Since Maxims are flexible, you can always bend one case to suit another maxim, even
if the Court never expressly stated it was using that maxim.
A good example is Walsh v Lonsdale (Foreign/English case) vs Law Tanggie (Malaysia) –

can be used to talk about clean hands, equity will provide remedy, equity follows the law,
equity will not perfect an imperfect gift (Tanggie), equity sees done as what ought to be
done… etc.
Also note that I have removed certain maxims that I think are less important for ease of
memorization.
Characteristics of maxims
Maxims of equity embody general principles which evolved over time from the Court of
Chancery’s exercise of its equitable jurisdiction.
- These maxims are not to be taken as binding positive laws of equity which are to be
rigorously and relentlessly applied in every case, but are more in the nature of general
guidelines which illustrate the way in which equitable jurisdiction is to be exercised.
- There is no logical division of these maxims – they do not cover comprehensively the
whole field of equity, plus they overlap and are inter-related; one maxim containing
by implication what belongs to another.
The maxims of equity cover a broad range of issues, which may be approximately grouped
into three categories: Maxims concerning the nature of equity and its jurisdiction, maxims
concerning the conduct expected of claimants, and maxims concerning the circumstances in
which equity will operate.
1. Equity will not suffer a wrong to be without a remedy
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Equity will intervene to protect a right which perhaps because of some technical defect is not
enforceable at law.
 Walsh v Lonsdale
Facts: Lonsdale agreed in writing to grant a 7 years’ lease of mill to Walsh at a rent payable
quarterly in arrear, but with a years’ rent payable in advance if demanded. No formal deed
was executed. Walsh entered into possession and paid his rent quarterly without arrear.
Subsequently, Lonsdale sought to enforce a year’s rent in advance and Walsh refused to pay.
Walsh claimed for an injunction and damages for illegal distress on the ground that at law, he
was tenant from year to year at a rent not payable in advance.
Held: the action failed. In equity, an agreement for a lease is considered to be as good as an
equitable lease. The tenant therefore was liable to pay a year’s rent in advance and the
distress was lawful.
2. Equity follows the law
 Equity follows the law unless there are circumstances disregarded by the common law
that warrants equity’s intervention.
 Equity does not destroy but fulfills the law. It supplements and explains it. Equity comes
in only where law is too technical to redress a legal wrong. In the event of conflict
between common law and equity, the latter was to prevail but it was stressed that even
where injunctions were issued after judgment at common law, they did not assume to
reverse and undo the judgment. The common law judgment stood but the party was
prevented from enforcing it.
This maxim indicates that where possible, equity will ensure that its own rules are in line
with the common law ones.
 Abdulrahim v Drahman
Facts: X gave title deeds of Y estate to A for valuable consideration when X was not yet
appointed as Administrator of Y estate.
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Held: A person who is the administrator of a deceased person is entitled to recover
possession of title deeds belonging to such deceased, from another with whom the title may
have been deposited, although such deposit might have been for valuable consideration, and
made by such person who is the administrator, as a next-of-kin. However, before he has
obtained the letter of administration to the estate of such deceased, such a deposit affords no
defence, either at law or in equity, to a claim by such person depositing, when he has clothed
himself with the title of administrator by obtaining letters of administration.
3. Equity acts in personam
 Equity has jurisdiction over the defendant personally. Provided that the defendant is
within the jurisdiction (or can be served outside it), it is no objection that the property
which is the subject matter of the dispute is outside it. This maxim shows the difference
of approach in equity and at common law.
 Penn v Lord Baltimore
Facts: Mr P owned the area of Pennsylvania and Lord B was the owner of the State of
Maryland. Both entered into an agreement to fix boundaries between their respective lands.
The agreement was not implemented. Mr P filed a suit for specific performance against Lord
B in the Court of Chancery in England. Lord B questioned the jurisdiction of the court as the
properties were situated in North America. The court overruled the objection.
Lord Harwicke : “The conscience of the party was bound by this agreement and being
under the jurisdiction of the court, which acts in personam, the court may properly decree it
as an agreement.”
 Re Valibhoy
Facts: A trust was created by a person who lives in Singapore of his properties in Malaya,
Singapore and India for charitable purposes to be performed in India. Trustees were in
Singapore, i.e under the jurisdiction of the court but the property was not. Trust was not
performed by the trustees. Court held that it has jurisdiction to hear the matter.
Held: Equity has jurisdiction over the defendant personally. Failure to comply with an order,
i.e specific performance or injunction is a contempt of court punishable by imprisonment.
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Provided that the defendant is within jurisdiction, it is no objection that the property (subject
matter of the dispute) is outside of it. The court however may refuse to intervene in cases
where some litigation may be in progress in a foreign court or court’s order may come in
conflict with the foreign law properly governing the property in dispute.
4. He who seeks equity must do equity (future conduct)
A plaintiff who seeks an equitable relief must be prepared to act fairly and reasonably
towards the defendant. At times, this maxim refers to the plaintiff’s future conduct. E.g.:
Court will not grant an injunction to prevent breach of contract for the benefit of a party who
is not prepared to perform his side of the bargain.
 Lodge v National Union Investment
Facts: B borrowed money from M, unregistered moneylender and mortgaged certain

securities to him. The contract was illegal and void under the Moneylenders Act 1900. B sued
M for delivery up of the securities.
Held: the learned judge refused to make the order except upon the terms B should repay the
money which had been advanced to him for B was seeking equitable relief and must therefore
do what was right and fair.
 Chillingworth v Chambers
Held: Where there has been a breach of trust by joint trustees, a beneficiary who is also a
trustee is required to indemnify the defendant to the extent of his portion of the trust property
as he colluded with them despite his status as a trustee-beneficiary. He, as a beneficiary who
seeks equity must do equity by indemnifying the other defendants to the extent of his portion
of the trust property.
5. He who comes to equity must come with clean hands (past conduct)
This maxim is important so more cases are needed as it is very fact based.
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 This principle is closely related to the one above, save that the one above looks to the
plaintiff’s future conduct, while the current principle looks to his previous conduct.
 The claimant not only must be prepared now to do what is right and fair but also must
show that his past record in the transaction is clean.
 Access to the court will be denied if the plaintiff’s actions are fraudulent or
unconscioanble.
 The parties cannot by agreement exclude the application of the maxim.
 Tinsley v Milligan
Facts: Stella Tinsley and Kathleen Milligan jointly purchased a property. However, the
property was solely registered in Tinsley’s name so that Milligan could fraudulently claim
social security benefits. This was done with the full knowledge of Tinsley. When the couple’s
relationship ended, Milligan sought a declaration that Tinsley held the house for them both
equally on resulting trust. Tinsley argued that, as Milligan defrauded the Department of
Social Security, she did not come to equity with “clean hands” and that no equitable relief
should be granted.
Held (HOL): in favour of Milligan as the resulting trust was created by her contributions to
the purchase price, she did not have to rely on the fraud to establish her claim. In fact,
ironically, it was Tinsley who had to rely on the fraud (of which she was a part of) to found
her argument that Milligan was entitled to nothing.
CONTRAST these 2 cases:
 Nail v Punter (Unclean Hands)Facts: The husband of a life tenant under a trust
encouraged the trustees to pay him money from the trust fund in breach of trust. The
life tenant commenced proceedings against the trustees but died shortly afterwards.
The husband became the beneficiary and continued the action against the trustees in
breach of trust.
Held: the action could not succeed because the husband was a party to the breach.
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 Palaniappa Chettiar v Arunaselam Chettiar (Unclean Hands) – Malaysian case
Held (Privy Council): that equity will not aid a person who has practised deceit on the
public administration of the country for personal gain. The fact that the respondent had
arranged the transfer of the rubber land for an illegal or fraudulent purpose and such purpose
had in fact been carried out, the respondent was precluded from obtaining the aid of the
court,i.e to seek equity.
Note: Cases suggest that there must be some connection or reciprocal wrong committed by
one person to another when the clean hands doctrine is invoked. That means, just because
someone did something wrong does not per se bar him legal redress. Remember, equity will
not suffer a wrong to be without a remedy.
This statement is summarized below:
 Dering v Earl of Wincelsea (The ‘clean hands’ requirement must have direct
relationship with the transaction at hand.)
Facts: Dering and the Earl and Rouse were all sureties for a bond belonging to X, Dering’s
brother. When X defaulted, Dering had to pay all. He sought to recover from the other two.
(The doctrine of contribution of sureties is not founded in contract, but is the result of general
equity on the ground of equality of burden and benefit.) The other two sureties said that
Dering had led X astray, encouraging him to gamble, etc.
Held: “A man must come into a court with clean hands; but "clean hands" does not mean a
general depravity, it must havean immediate and necessary relation to the equity sued for, it
must be a depravity in a legal or moral sense.” X was the author of his own loss, not Dering,
and Dering could recover from the other two sureties.
6. Delay defeats equity
This maxim serves as the foundation of the doctrine of laches and acquiescence, whereby a
party who has delayed cannot obtain equitable relief from the courts.
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 However, this doctrine has no application where statutes of limitation apply (either
expressly via Limitation Act 1963, or by analogy) – such statutory limitations will
displace any equitable jurisdiction to decide whether or not a claim has been made too
late.
 Smith v Clay
Facts: The case concerned a petition to review a decree between thirty and fourty years old
regarding execution of a will. The petition was dismissed on grounds of the long delay
between the making of the decree and this petition; as after twenty years most appeals would
be dismissed.
Lord Camden stated: “That a court of equity, which never is active in relief against
conscience or public convenience, has always refused its aid to stale demands where the
party has slept upon his rights for a great length of time.
 Erlanger v New Sombrero
Facts: Erlanger (respondent-defendant) bought the lease of the Anguilla island

of Sombrero for phosphate mining for £55,000. He then set up the New Sombrero Phosphate
Co, and eight days after incorporation, he sold the island to the company for £110,000.
Through promotion and advertising, Erlanger got many members of the public to invest in the
company. After eight months, the public investors discovered that Erlanger had bought the
island at half the price the company had paid for it. The New Sombrero Phosphate Co sued
for rescission based on non-disclosure.
Held: promoters of a company stand in a fiduciary relationship to investors, meaning they

have a duty of disclosure. Further, they held, by majority that the contract could be rescinded,
and that rescission was not barred by laches. (The court considered that in a company, a delay
caused by a change in the governing body might be excused)
On the question of laches, Lord Blackburn cited the case of Lindsay Petroleum Company
with approval, and stated:
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“I think, from the nature of the inquiry, it must always be a question of more or less,
depending on the degree of diligence which might reasonably be required, and the degree of
change, which has occurred, whether the balance of justice or injustice is in favour of
granting the remedy or withholding it. The determination of such a question must largely
depend on the turn of mind of those who have to decide, and must therefore be subject to
uncertainty; but that, I think, is inherent in the nature of the inquiry.
 Allcard v Skinner
Facts: Appellant-plaintiff was a member of a sisterhood, and claimed that she had been
unduly influenced to bequeath considerable property to the sisterhood. It was held that undue
influence had been exerted, and she was entitled to claim restitution. However, under the
circumstances, her claim was barred by her laches and acquiescence since she left the
sisterhood. She left in 1879, but commenced action to demand for the return of her property
in 1885 (6 year gap).
Held: The Court ultimately found that this was a case of actual undue influence. However the
fact that the plaintiff brought the case within 6 years and the fact that within these 6 years she
was fully aware of her rights means she had acquiesced to her loss. Claim was denied based
on laches.
 Re Len Chee Omnibus v Lee Chee Omnibus (Malaysia)
Facts: Respondent had applied for letters of administration 3 years after the mother died.
Applicant claimed that he was entitled to administer the estate but he brought the claim 2
years after Respondents administered it. Additionally, Applicant was aware for 5 years of the
mother’s death but did nothing to secure his right.
Held: The applicant was guilty of unreasonable delay and hence the claim was denied.
 Goh Kheng How v Raja Zainal Abidin (Malaysia)
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Facts: Goh, a beneficiary under a trust entered private caveat instead of a trust caveat and
fails to state his interest as beneficiary of the trust. The beneficiaries had done nothing for a
period of 30 years to get the registered proprietor to register the land in their name.
Held: Substantial delay and the Court found them to be estopped by laches to bring any claim
tainted by that undue delay.
7. Equity looks to the substance rather than the form
This maxim you can just apply Walsh v Lonsdale in addition to the Malaysian case below.
 Wan Naimah v Wan Mohd Nawawai (Federal Court)
Facts: Land was sold to the parties’ father, who transferred the whole of the land to his
daughter (the Appellant). His son (the Respondent) was an infant at the time.
Held: the Appellant held the half-share in the land in trust for the Respondent. Evidence
shows that the father intended to create a trust of an undivided half share in the land in favour
of his son. The Court must look at the intention of the testator rather than the form that
documents show. Son entitled to his share.
8. Equity regards as done that which ought to be done
 Under this maxim, when there is a specifically enforceable obligation, equity regards the
parties as already in the position which they would be in after performance of the
obligation. This principle is most frequently applied in the case of contracts.
 Walsh v Lonsdale (see above)
 Margaret Chua v Ho Swee Kiew & Ors [1961] MLJ 173

Held: : A lease which is not registered is void as a lease but is good and valid as an
agreement for a lease and may be enforceable in equity by a decree if specific performance.
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Here, R was only allowed to claimed damages in regards to the breach of the lease agreement
as the third party to whom the land was sold to have gone into possession.
 Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd
Held: The contractual events which result in the vendor becoming a bare trustee of the land
for the purchaser, is on completion of the sale and purchase agreement, that is to say, upon
receipt by the vendor of the full purchase price, timeously paid and when the vendor
has given the purchaser a duly executed, valid and registrable transfer of the land in
due form in favour of the purchaser, for it is then that the vendor divests himself of his
interest in the land.
9. Equity will not perfect an imperfect gift/Equity would not assist a volunteer
[contradicting the maxim of equity looks at substance rather than from]
 If a donor has made an imperfect gift (lacking the formalities required at common law),
equity will not assist the intended donee.
Milroy v Lord
Facts: Milroy (settlor) executed a voluntary deed purporting to transfer some shares in the
Bank of Louisana to Lord to hold on trust for him. However, under the bank’s constitution,
the shares could only be transferred by registration in the register of the bank.
Held: The settlor has used the incorrect form in attempting to transfer the shares, rendering
the gift imperfect. Therefore, there was no trust in favour of Milroy although Lord had the
power of attorney on behalf of the settlor (which meant he could have completed the correct
form of registration)
To render a voluntary settlement valid and effectual, the settlor must have done everything
which according to the nature of the property, and render the settlement binding upon
himself.
 Jones v Lock
Facts: A father produced a cheque, payable to himself, and said that it for his nine month old
son. He gave the cheque to the baby, then later took the cheque back and put it into the safe.
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Jones later saw his solicitor and told him that he was going to add $100 to the cheque and
invest the total for his son. Some days later, he saw his solicitor again to make an
appointment to change his will to provide for his son. He died the same day. The solicitor
who was one of Jones’ executors, found the cheque and cashed it in favour of the estates.
Held: there had been no gift to the baby and declaration of trust in his favour. The Court of
equity will not aid volunteers. Thought the father had the intention of settling something on
the child but this does not mean that the child could bring an action for the cheque.
“If I give any chattel that, of course, passes by delivery, and if I say, expressly or impliedly,
that I constitute myself a trustee of personality, that is a trust executed, and capable of being
enforced without consideration. I do not think it necessary to go into any of the authorities
cited before me; they all turn upon the question, whether what has been said was a
declaration of trust or an imperfect gift. In the latter case the parties would receive no aid
from a Court of equity if they claimed as volunteers.”
 Re Rose
Held: The trust was completely constituted, with the deceased having done everything in his
power to transfer his legal and beneficial interest in the shares to the transferees (plaintiffs).
The settlor executed documents to transfer shares in a private company to the trustees. The
company’s articles of association gave the directors discretion to refuse such a transfer if
they so choose. The transfer was in fact registered two months after the relevant documents
were executed. The date the trust was executed was at the point the settlor had done
everything within his power to execute the transfer.
“Having regard to the form and operation of the transfers, the nature of the property
transferred and the necessity for registration in order to perfect the legal title, coupled with
the discretionary power in the directors to withhold registration, pending registration the
deceased was in the position of a trustee of the legal title in the shares for the transferees.”
 Re Fry
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Held: the settlor had not done everything within his power to transfer the gift of shares to his
son, and as such the trust was incompletely constituted i.e. an imperfect gift, therefore
rendering the said gift inoperative.
“[…] In view of the provisions of the restrictions on the transfer of securities then in force
the company were unable and therefore refused without the consent of the Treasury to the
transfers, to register them. To obtain this consent various forms and declarations had to be
signed both by the transferor and the transferees and in addition a questionnaire was
submitted to the transferor which he had to answer personally, and although the various
forms, declarations and other documents were in the end completed, the transferor died
before the requisite consent of the Treasury to either of the transfers had been obtained.”
10. Where the equities are equal, the first in time prevails (qui prior est tempore
portior est jure)
 Rice v Rice
Facts: The plaintiff is the vendor of a parcel of land, which he sold to a purchaser, X. X only
paid part of the purchase price, and thus the plaintiff had an equitable interest of a vendor’s
lien over the balance. Plaintiff handed over certificate of title and the deeds to X. X
prematurely created an equitable mortgage in favour of E, the defendant. E is now the
equitable mortgagee over the land. Vendor seeks payment of the unpaid balance.
ISSUE: whether the prior equitable interest of the vendor (unpaid lien) defeats the subsequent
equitable interest of E.
Held: In deciding whether the equities are equal, the court looks at the nature and condition
of the interests, the circumstances and manner of their acquisition, and the whole conduct of
each party with respect to their interests. Priority in time is the ground of preference last
resorted to when the merits between the equities are equal: priority in time is immaterial if as
between the claimants one has on other grounds a better equity.
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Held: that the Abigail’s interest should prevail. The Lapins had armed Mrs H, not only by
giving her the transfer of title but also because they had failed to lodge a caveat, which would
have alerted Abigail of their equitable interest in the land.
 Vallipuram Sivaguru v Palaniappa
Facts: P deposited IDT as security for loan with B. Later, he entered into a sale agreement
and fraudulently told the purchaser that he had lost the IDT.
Held: B had acquired the first right by virtue of the IDT with him and was not guilty of any
priority-postponing conduct. On B’s failure to enter a caveat – no evidence that C had
searched the register. Even if he had done so, he would still have had to be on his guard
owing to the absence of the IDT.
• The loss fallen on C was not due to negligence on the part of B, but entirely owing to
the fact that C had ignored the most elementary precaution when he bought the land.
• B did not part with the IDT, as was in Abigail. He retained possession of the IDT
throughout and had the right to enter caveat at any time. B had done nothing to forfeit
his priority.
*Prior interest can also be protected by retaining possession of IDT even though private
caveat was not entered. Failure to enter lienholder’s caveat did not affect D’s priority in
equity: unlike Abigail v Lapin, D still retained the IDT at all times, and could enter lien at any
time. Constructive notice applies.
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EQUITABLE INTERESTS IN PROPERTY
Characteristic of proprietary right
 National Provincial Bank Ltd v Ainsworth
Facts: Mr and Mrs Ainsworth lived in Milward Rd, Sussex until Mr Ainsworth, registered
owner, moved out in 1957, borrowed £1000 in 1958 from the bank, and gave the bank a
charge over his property ie the matrimonial home. The bank was not aware of the desertion at
the time the charge was created. In 1962 he fell behind, but Mrs Ainsworth refuse to leave
and the bank sought a possession order.
HOL: The rights of a deserted wife were of their nature personal right and such that they
could not be treated as in any sense constituting a clog on the property of the husband so as in
the case of realty to run with the land .A deserted wife could not resist a claim from a genuine
purchaser of the matrimonial home from her husband whether the purchase took place after
or before desertion.
Types of property
1. Personal Property
 AKA moveable property
 Confer right in rem
 Def: Everything that is the subject of ownership that does not come under the
denomination of real property; any right or interest that an individual has in movable
things. It can be divided into two major categories:
I. corporeal personal property, including such items as animals, merchandise, and
jewellery; and
II. incorporeal personal property, comprised of such rights as stocks, bonds, patents ,
and copyrights
2. Real Property
 AKA immoveable property
 Confers right in rem
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 Def: all land, structures, firmly attached; anything growing on the land, and all
"interests" in the property which may be the right to future ownership; right to occupy for
a period of time the right to drill for oil; use of airspace (condominium) or an easement
across another's property.
Right in personam
 Personal right is a right which is only enforceable against a specific individual, purchaser,
heir, or done
 For example, a contract creates a purely personal right enforceable only against the
person who promised. If the contract was specifically enforceable, the owner would
acquire an interest in the property by way of a constructive trust or enforcement by way
of specific performance a contract ( sale and purchase (SP) agreement – purchaser
becomes legal owner )
 Not enforceable against equity darling – bona fide purchaser for value.
Mere equities
 Not a right in property but a right procedural in nature related to a right in property and
which limits and qualifies it in some way.
 E.g. a right to have contract set aside by reason of fraud , misrepresentation or undue
influence - do not run with property and not normally assignable
 Differs from equitable interest in property i.e. interest under a trust – express trust ,
resulting trust or constructive trust .
Recognition of equitable interests in property
 Equitable interests may arise in a number of situations:

1) beneficial interest under an express trust;
2) beneficiary’s interest under a deceased’s estate;
3) contract for sale of land;
4) beneficial interests that arise by implication of law;
5) equitable interests imposed by courts;
6) assignment of future property in equity
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1. Beneficial interest under an express trust
 In order to create a trust, the disposition must exhibit the requisite certainty (namely
certainty of intention, subject matter and object), must be completely constituted, not
illegal or otherwise contrary to public policy, and, in specified circumstances, fulfill
statutory requirements for writing.
 An equitable interest in property may arise under a trust expressly created by:
(a) Transfer of property, coupled with an intention to make the transferee the
beneficial owner of that property.
(b) Declaration of trust, whereby the settle declares herself or himself to hold the
property on trust for others; or
(c) Direction by the owner of property, to a 3 rd party in possession, to hold the

property in trust for others.
 Wan Naimah v Wan Mohd Nawawai
Facts: the land had been sold to the parties' father but the land was transferred to the brother-
in-law of the purchaser. Subsequently the whole land was transferred to the appellant, the
daughter. The respondent, the son of the purchaser, was then still an infant. There was
evidence to show that the father intended to create a trust of an undivided half share in the
land in favour of his son, the respondent. The learned trial judge held that the appellant held
the half-share in the land in trust for the respondent. The appellant appealed.
Held: dismissing the appeal:
1) the learned trial judge was right in holding that the half-share in the land was held by
the appellant, the registered proprietress, in trust for the respondent.
2) Plaintiff has produced evidence sufficient to prove that the defendant held that
half undivided share in trust for him, and that therefore this appeal be dismissed.
3) The law is that a declaration of trust may be made quite informally, provided that the
words used are clear and unequivocal. Words declaring a trust:
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**This case is illustrating meaning of Part b (declaration of trust). However, the declaration
must be clear, unequivocal and irrevocable. The maxim applied here is ‘Equity looks to the
intent rather than the form’. This principle does not mean that equity ignores formalities.
Conversely. See…
 Milroy v Lord
Facts: Milroy (settlor) executed a voluntary deed transfer some shares in the Bank of
Louisana to Lord to hold on trust for him. However, under the bank’s constitution, the shares
could only be transferred by registration in the register of the bank.
Held: The settlor has used the incorrect form in attempting to transfer the shares, rendering
the gift imperfect. Therefore, there was no trust in favour of Milroy although Lord had the
power of attorney on behalf of the settlor (which meant he could have completed the correct
form of registration)
- In order for a gift of property to be effective, the donor must have done everything
that, according to the nature of the property in question, was necessary for the donor
to have done in order to transfer the property to the done as Turner LJ: “…there is no
equity in this court to protect an imperfect gift.”
- Otherwise, every imperfect instrument would be made effectual by being converted

into a perfect trust”.
**Principle: trusts should not be used to save gifts from being defeated. This case purports
to follow one of the maxims of equity that "Equity will not assist a volunteer".
2. Beneficiary’s interest under a deceased’s estate
 The beneficiary’s right is not a specified right to the assets until the assets are distributed.
However, that right is capable of assignment.
 Khaw Poh Chuan v Ng Gaik Peng
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Facts: The assignor in this case was to receive the land as part of the father’s estate after his
death and also as administratrix. However, before everything was finalized and the property
properly distributed, the assignor assigned all her shares in the property to the assignee. Later,
the assignor reneged on her promise to the assignee by claiming there was no assignment and
instead entering into a family agreement to distribute the property.
Held: Assignment of future property is allowed. As the person entitled to the residue from
the deceased’s estate, the assignor had equitable interest in the land and under the law, had a
right to assign that equitable interest in favor of the assignee.
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Important to note however that beneficial interest cannot aid the beneficiary in everything. In
certain instances, the beneficiary still needs legal interest.
Chong Fook Sin v Amanah Raya
Facts: There beneficiaries of the deceased’s estate sought to intervene in action brought
against the administrator of the estate against a third party.
Held: A beneficiary only has equitable interest in the land. They can only intervene if they
have a legal interest once the administration of the estate is completed and distributed.
3. Contract of sale of property
 Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd (FC)
Fact: The contest was between a chargee (the appellant) under a charge registered and a
purchaser (the respondent) under a sale and purchase agreement (S&P agreement) in respect
of one unit of proposed industrial building (the building) to be built on one of the four pieces
of land (the land) the subject matter of the charge.
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On 1.3.1982, the chargor, a developer, applied for a bridging loan (the loan) from the
appellant, a finance company, to finance its proposed industrial development project on the
land. On 2.11.1982, the chargor entered into a S&P agreement with the respondent for the
sale of the building to the latter. On 28.5.1983, the chargor created a charge (duly registered
under s. 104 of the Ordinance on 21 June 1983) over the land in favour of the appellant as
security for the repayment of the loan. By 23.5.1986, the respondent had effected due
payment of the entire purchase price of the building in favour of the chargor.
However, the chargor defaulted in its repayment of the loan, and, upon the application of the
appellant, an order for sale in respect of the land was made by the Collector on 17.8.1991.
The land was subsequently sold to a third party on 30.11.1991. On 7.12.1991, the respondent
commenced proceedings against the chargor, the appellant, the Collector, and the third party
purchaser.
Held: Relying on the dicta of H.S. Ong FJ in Temenggong Securities Ltd. & Anor. V.
Registrar Of Titles, Johore & Ors [1974] 1 LNS 175. and, certain passages in Sinnadurai's
Sale and Purchase of Real Property in Malaysia, the trial Judge held that the chargor had,
upon receipt of the full purchase price from the respondent, become a bare trustee for the
respondent, and that this trusteeship operated retrospectively by conversion to the date when
the S&P agreement was made.
Jessel MR’s dicta in Lysaght v. Edwards applied (“It appears to me that the effect of a
contract for sale has been settled for more than two centuries;... it is that the moment you
have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the
estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to
the purchase money, a charge or lien on the estate for the security of that purchase money,
and a right to retain possession of the estate until the purchase money is paid, in the absence
of express contract as to the time of delivering possession.”)
The contractual events, which result in a vendor becoming a trustee of the land for the
purchaser, only came to completion upon receipt by the vendor of the full purchase price,
paid timely, and when the vendor has given the purchaser a duly executed, valid, and
registrable transfer of the land in due form
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4. Beneficial interests that arise by implication of law
In circumstances were the law recognizes an equitable interest to give effect to what could be
construed as the implied intention of the parties in respect of the relevant transaction. The
main circumstances where this occurs are discussed below:
a) Resulting trusts
 It arises where one person (the settlor) confers legal title to property to another person but
retains equitable ownership of the property, in whole or in part.
 Hence, the resulting trust is not created pursuant to the actual intention of the settlor but
pursuant to the intention that the law presumes in view of the particular form of
transaction that the settlor has affected.
 Sometimes resulting trusts are described as implied trusts, reflecting their operation as
arising from the implied intentions of the settlor.
 Law Tanggie v Untong Ak Gantang
Facts: Pf bought a native land from one (Atok) but could not register the land in his name as
he was underage and could not obtain a native certificate. Pf then by an agreement appointed
Df to hold the property in trust until Pf could obtain a native cert. However, upon receiving
his native cert, Df refused to transfer the said land to Pf despite repeated requests. It turns out
that the land had been transferred to the Df’s daughter (bona fide purchaser, equity’s darling).
Held: The Df was thus holding the said land on trust for the Pf, all the more so as there was
credible and acceptable evidence adduced that the Pf had paid for the purchase price. This
case fitted in with the classical case of a purchase being taken in the name of a stranger,
which would constitute the nominal purchaser as a resulting trustee for the one who provided
the purchase price.
b) Equitable Lien
- In common Law, a lien is defined as the right to hold property belonging to another
person as security for the performance of an obligation or the payment of a debt.
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- An equitable lien is a right against property which arises by implication of equity to
secure the discharge of an actual or potential indebtedness. Unlike Common Law lien,
equitable lien does not depend upon possession. It may be enforced in the same way as an
equitable charge.
 Hewett v Court
Facts: A company engaged in constructing transportable houses entered into a contract with
certain purchasers to construct a house at the company premises according to specifications
provided by the purchasers. After the purchasers had paid the deposit and the first instalment
and when the house was nearing completion, it appeared that the company was insolvent.
The company and the purchasers then varied the original agreement and the purchasers
removed the house and paid the balance of the contract price subject to an adjustment to
allow for the uncompleted work. Shortly thereafter, liquidators were appointed and they
sought to set aside the variation to the agreement on the basis that it as a preference. The
purchasers contended they were entitled to an equitable lien upon the home. The appellant
appealed from a judgment of the Full Court of the Supreme Court of Western Australia
reversing a decision of Wickham J that there was no preference. Appeal allowed.
Held: An equitable lien is a right against property which arises automatically by implication
of equity to secure the discharge of an actual or potential indebtedness. Thus the lien-holder
gets an interest in the property as a security for his loan.
5. Equitable interests imposed by the courts
 Court will, by reason of unconscionable conduct of the wrongdoer, impose a

liability on wrongdoer by creating a constructive trust. It is created artificially.
 AG Hong Kong v Reid
Facts: Reid, who is the of Acting Director of Public Prosecutions breached the fiduciary
duty entailed by this position by accepting bribes in return for the obstruction of prosecution
in certain cases. It was discovered that Reid used the bribery to purchase certain New Zealand
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properties which had an increase in value. The Hong Kong government argued that owing to
the breach of fiduciary duty, these properties were held on constructive trust for them.
Held: the fiduciary (Reid) who receives an unauthorised profit in breach of his duty of
loyalty will hold the profit on constructive trust for his principal because he is subject to an
equitable duty to account for the profit he received. As soon as the bribe was received,
whether in cash or in kind, the false fiduciary held the bribe on a constructive trust for the
person injured.
6. Assignment of future property in equity
At common law, an assignment of property to be acquired in future is void in that common

law considers what a person does not have, cannot be assigned. But equity treats such an
assignment as a contract to assign where it is made for valuable consideration, binding the
conscience of the assignor, from the moment the contract becomes capable of performance.
 Re Lind
Facts: L mortgaged his expectancy of a share in his mother's personal estate on intestacy to
the N Co in 1905, and to A in 1908. Later in 1908 L was adjudicated bankrupt. Neither the N
Co nor A proved in the bankruptcy. After his discharge L made a further assignment of his
expectancy to the plaintiffs. L's mother died intestate in 1918. The plaintiffs contended that
the mortgages to the N Co and A were of no value as their rights amounted only to contracts
to assure in the future, and because of the bankruptcy L had been released from the mortgage
debts.
Held:
(i) an assignment for value of future property bound the property directly it was acquired,
automatically on the happening of the event, and without any further act on the part of the
assignor, and did not merely rest in and amount to a right in contract.
(ii) the mortgagees N Co and A had elected to rely upon their security and not to prove, and,
therefore, as mortgagees they stood outside the bankruptcy; moreover any contract contained
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in the mortgage deeds for vesting the future property in the mortgagees was ancillary, not to
the debt, but to the mortgage by which the debt was secured
(iii) The assignment does, however, operate as a contract to assign if and when the property
comes into existence, and to use the words of the same great judge,
"when it has come into existence, equity, treating as done that which ought to be done,
fastens upon that property, and the contract to assign thus becomes a complete assignment."
Competing Equitable Interests
If there are competin equitable interests, then just apply the maxim: if equities are equal, first
in time prevails as stated above.
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ESTOPPEL
Estoppel is essentially part of the law that when a party has made a promise to the other to the
point where the other relies on it to his own detriment, the promisor then can repudiate that
promise against his conscience.
There are two kind of estoppels. (1) Common Law Estoppel (which is irrelevant to our
exams) and (2) Equitable Estoppel. In turn there are two main kinds of equitable estoppels
i.e. (a) promissory estoppel and (b) proprietary estoppel.
Promissory estoppel gives the party a defence in contractual aspects. Proprietary estoppel
gives the promise the right to occupy land. However, I don’t really see any major difference
in the two kinds of equitable estoppels other than their sphere of operation. Both of them
have common elements i.e. REPRESENTATION made by the promisor which was relied
upon by the promise to his DETRIMENT.
So this raises a few questions? What constitutes a “representation” and also what exactly is
meant by “detriment”?
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Representation – Conduct, Convention and Silence
According to landmark Malaysian and foreign case law alike, representation need not be a
verbal statement or promise per se. It can come in the form of conduct, convention and even
by way of silence. Please note that usually I would greatly summarise the facts but because
(1) Equity is generally facts based, and (2) Dr Usha likes us to analyse cases, I think its best
we use LESS cases but no their facts and principles well and just apply it to our exam facts. I
mean, the exam questions cannot be too different from cases that we’ve studied I our course
outline.
Representation by conduct or convention
Amalgamated v Texas Commercial Bank
Facts:
T (a bank) agreed to lend money to ANPP ( a subsidiary of A). In the end, the loan was
provided through P (T’s subsidiary). This was part of a much broader set of arrangements
under which T provided finance to A secured by mortgages over properties owned by A. A
gave a guarantee to secure all monies it owed to T. The parties both believed that the
guarantee extended to cover the loan by P to ANPP (ie from the bank’s subsidiary to the
guarantor’s subsidiary) though on a strict interpretation of the guarantee it arguably did not
cover the indebtedness to P. T and A conducted their negotiations for the overall financing of
A from time to time on the basis that the guarantee covered the loan by P to ANPP.
A went into liquidation and the question was whether the cash realised from the sale of A’s
assets had to be applied partly to pay off the indebtedness to P.
Held:
The English Court of Appeal found in favour of T on the basis of estoppel by convention.
Principle from Lord Denning : Although both parties to a contract are both under a common
mistake as to the meaning or effect of the contract and thereafter embark on a course of
dealing based on that mistake thereby replaced the original terms of the contract by a
conventional basis on which they both conduct their affairs, hence the original contract is
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replaced by the conventional basis. Either party can sue or be sued upon it just as if it has
been expressly agreed between them.
Principle from Brandon LJ : This form of estoppel is founded, not on a representation of

fact made by a representor and believed by a representee, but on an agreed statement of facts
the truth of which has been assumed, by the convention of the parties, as the basis of a
transaction into which they are about to enter. When the parties have acted in the transaction
on the agreed assumption that a given statement of facts is to be assumed between them as
true, then as regards that transaction each will be estopped as against the other from
questioning the truth of the statement of facts so assumed.
In the case of (amalgamated) it talks about estoppel by convention Estoppel by convention in

English law (also known as estoppel by agreement) occurs where two parties negotiate or
operate a contract but make a mistake. If they share an assumption, belief, or understanding
of the contract's interpretation or legal effect, then they are bound by it
- They both knew the other had the same belief, and
- They both based their subsequent dealings on those beliefs.
Estoppel by convention is most commonly invoked if one party wishes to rely on pre-
contract negotiation as an aid to construction of the contract.
Waltons Stores v Maher
Facts :
Waltons negotiated with Maher for the lease of property owned by Maher. The parties
understood Maher would demolish an existing building and erect a new one which Waltons
would occupy. Agreement was reached on terms and rent. Waltons' solicitors sent a draft
lease to Maher's solicitors in October and some changes were discussed. A revised lease was
then sent to Waltons by Maher. In November Maher informed Waltons that demolition had
commenced and it was therefore important to conclude the lease quickly. Later that month
Waltons started to have reservations about the lease and instructed its solicitors to 'go slow'.
In January Maher commenced building. Later that month, when approximately 40% of
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building work was completed, Waltons informed Maher it did not wish to proceed. Maher
brought action to enforce the agreement.
Held :
The majority held that, although formal contracts had not been exchanged, Maher was
entitled to assume the exchange was a mere formality. Maher could rely on promissory
estoppel which extends to representations or promises as to future conduct. In Australia
promissory estoppel can be used both as a 'sword and a shield'. It will apply to provide a
promisee with a cause of action where:
 Promisor makes a promise
 Promisor creates or encourages an assumption that a contract will come into existence
or a promise will be performed
 Promisee relies on this to his/her detriment; and
 It is unconscionable, having regard to the promisor's conduct, for the promisor to

ignore the promise.
In those circumstances Waltons was under obligation to communicate with Maher within
reasonable time and certainty when it heard of demolition. It did not and its inaction in the
circumstances constituted clear encouragement or inducement for Maher to continue. As a
result, Waltons was estopped from retreating from its implied promise to complete.
Representation by Silence
This is similar to representation by conduct just that it is made by silence. Though silence
ordinarily cannot amount to a representation per se, the exception to this is when there is a
duty to speak. If you fail to say anything when you have an obligation to do so, your silence
amounts to speech and a form of acquiescence. Thus, you cannot thereafter deny a
representation when you already acquiesced to a certain outcome. An excellent example of
this is everyone’s favourite case:
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Boustead v Arab Malaysia
Facts: Three parties in this case. (1) Chemitrade (“Assignor”); (2) Appellant (“Debtor”); (3)
Respondent (“Assignee”). The debtor’s book debts to the assignor were assigned to the
assignee by the assignor and the debtor had notice of the creation of the assignment. The
assignor would forward the invoice to the assignee for the goods credited to the debtor and
the assignee made and indorsement that the debtor must make any objections within 14 days.
The debtor continued to pay the debts but stopped at one point claiming that certain costs
would have been offset for certain reasons. This objection was not made within the 14 day
period. The relevant question here was whether this amounted to a representation i.e. did
silence here amount to speech?
Held: Counsel argued that in the event that estoppel could be relied on, there was no
representation made that allows a claim of estoppel. The Court then went into the discussion
on the law of representation in estoppel and found that in this case, by remaining silent during
that period of 14-days, the appellant/debtor had made a representation to the
respondent/assignee that no objections would be made. Thus here, silence did amount to
representation and this element of estoppel was proved.
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Detriment – What is the Extent?
The question here is what exactly amounts to a detriment? In all the cases cited above, there
were clear monetary losses amounting to detriment.
In Boustead, the Court dispensed claimed to have dispensed with the requirement of
detriment by replacing it with the test of unconscionability i.e. that all that needs to be shown
is that at any time, it would be unconscionable for the representor to go against his promise.
However, general case law as mentioned above and also subsequent Malaysian case law have
recognized that general requirement of detriment is required. However, they are consistent
with Boustead by saying that the requirement need not be so strict. Instead what needs to be
proved is that due to the representor’s representation the representee has suffered some form
of loss or sufferance such that it would be unconscionable for the Court to decide in favour of
the representor.
Case: Guindarajoo v Satgunasingam
Facts: The P was the adoptive son (by custom) of the deceased. He claimed inter alia that he
was entitled to the house and not the defendant on grounds of proprietary estoppel. In the P’s
view, he was entitled to the house if he fulfilled certain promises to his adoptive mother and
that he acted on those promises to his detriment. Some of the detriments he claimed was
being unable to marry, not being paid for taking care of the house and that he was the only
person who took care of his deceased adoptive mother when she was sick.
Held: The Court considered the elements of proprietary estoppel and referred to the case of
Boustead. The High Court noted that the Federal Court’s declaration on the non-requirement
of detriment was only made in obiter and that it did not bind the High Court.
The Court surveyed the works of certain authors who criticised the decision in Boustead and
other English cases to find that detriment was indeed a requirement necessary in establishing
estoppel. According to Dato’ Visu Sinnadurai, this is necessary to preserve the concept of
consideration in Contract Law i.e. a contract unsupported by consideration cannot be
enforced and hence the need for detriment as a vital ingredient.
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The Court held, relying on English case of Gillet v Holt, first a causal link needs to be
established with the representation made and the detriment asserted. The detriment must be
proved but the concept of detriment need not be limited to a narrow or technical concept i.e.
to expenditure of money or any other quantifiable financial detriment.
All that needs to be shown is whether the repudiation of the assurance is or is not
unconscionable in that particular circumstance and whether the detriment is
sufficiently substantial is to be tested by whether it would be unjust or inequitable for the
assurance to be disregarded.
Note: In this case, the detriment was that he alone had to take care of his ill adopted mother
and that he could not marry as long as she was alive. He did this with the understanding that
he would get the house. This was further corroborated by the fact that soon after she died, he
married.
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ASSIGNMENT OF PROPERTY
s 4 of the Civil Law Act 1956:
Any absolute assignment, by writing, under the hand of the assignor, not purporting
to be by way of charge only, of any debt or other legal chose in action, of which
express notice in writing has been given to the debtor, trustee or other person from
whom the assignor would have been entitled to receive or claim the debt or chose in
action, shall be, and be deemed to have been, effectual in law, subject to all equities
which would have been entitled to priority over the right of the assignee under the
law as it existed in the State before the date of the coming into force of this Act, to
pass and transfer the legal right to the debt or chose in action, from the date of the
notice, and all legal and other remedies for the same, and the power to give a good
discharge for the same, without the concurrence of the assignor.
- Hence, a statutory assignment must be:
i. Absolute and unconditional – an assignment will not be absolute if it is subject

to consideration of account of the assignor and assignee, but it will be absolute if
the assignment is a total or entire alienation of the assignor’s interest. Thus an
assignment of debt is absolute if the assignor has assigned all that is due to him.
ii. In writing
iii. Signed by the assignor
iv. Notice in writing to the debtor - It is a prerequisite of a valid statutory

assignment that express notice in writing is given to the debtor, trustee, or other
person from whom the assignor would have been able to claim. No particular form
is necessary, so long as it sufficiently indicates the fact of the assignment. Notice
is effective from time of receipt by the debtor.
v. Consideration not necessary if all requirements of the statute are fulfilled
- Under common law, there cannot be an assignment to another without the consent of the
debtor, but at equity consent of the debtor is not necessary.
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- Effect: If the statutory conditions are satisfied, the assignee would be the holder of legal
title to the right assigned1 thus enabling him or her to sue without the need to join the
assignor as a party.
 Mbf Factors v Tay Hing Ju

Held: Where s4(3) of the CLA applies, the assignee is allowed to sue the debtor in his own
name instead of having to sue on the name of the assignor and perhaps having to go to a
court to compel his joinder in the action. Thus, the position is same in England…
‘Chose in action’
- All personal rights of property enforceable not by taking physical possession but only by
action. The principle example of these would be contractual rights including debts,
although non-contractual rights could constitute choses in action.2
 Torkington v Magee:
Facts: The D contracted to sell his reversionary interests in property to the D who by deed
assigned his interests under the contract to the P and notice in writing of the assignment was
duly given. The D, after the assignment to the P, refused to perform the contract. It was held
by the court that the assignment was an assignment of a legal chose in action, and the P was
entitled to sue the D for damages for breach of contract.
Chose in action was defined as: “…a known legal expression used to describe all personal
rights of property which can only be claimed or enforced by action and not by taking
physical possession.”
1
Warner Bros Recods v Rollgreen Ltd
2
Wan Azlan Ahmad, Paul Linus Andrews. (2005) Equity and Trusts in Malaysia. Sweet and Maxwell.
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Absolute and unconditional
 Khaw Poh Chuan v Ng Gaik Peng
Facts: The facts are as above. Held in relation to absolute assignment:
To determine if the assignment is conditional or absolute, the test of an absolute assignment

should normally be only that it is one by which the entire interest of the assignor in the chose
in action (such as the interest as claimed by the assignee herein) is, for the time being,
transferred unconditionally to the assignee and placed completely under the assignee's
control.
Conversely, see
 Chan Min Swee v Melawangi
Facts: Pf purchased by way of a sale and purchase agreement an office unit of the Df. The
strata title for the office unit has yet to be issued. Pf, by way of a composite loan agreement
and assignment ('assignment'), assigned all its rights in the SPA to Arab-Malaysian Bank Bhd
('assignee bank') as security for a loan. Subsequently, Pf filed the suit for, inter alia,
rescission of the agreement on the ground of, inter alia, misrepresentation and breach of
contract. The assignee bank, upon acknowledging the action by Pf.
Df applied to strike out the plaintiff's claim under O 18 r 19(1)(b) of the Rules of the High
Court ('the RHC') and under the inherent jurisdiction of the court but was dismissed with
costs. Df appealled. The issues for determination were whether the Pf was entitled under the
law to sue the defendant without joining the assignee bank.
Held: Evidence indicated that the assignment shall remain in force until the monies secured
by the property has been duly paid. Hence, the assignment was not absolute. Thus, the
plaintiff could be allowed to bring the claim without bank’s presence in the proceedings.
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Notice to the debtor
 Haris Adakom Corp. v Perkom
Facts: Df had entered into a distribution agreement with the Pf, an American company which
it owed the sum RM 538, 000. The Pf then sold its interest and assigned all its rights to the
Df. When the Df failed to pay the debt, Pf commenced arbitration proceedings in the United
States. The Df did not appear despite due notice and an award was made in favour of the Pf.
The Pf applied to register the award under the convention on the Recognition and
Enforcement of Foreign Arbitral Awards Act 1985. The Df opposed on the ground the
assignment was void since due notice had not be given to the him.
Held: Under S 4(3) of CLA 1956, for a legal assignment to be valid, express notice in
writing must be given to the debtor, but this does not require formal notice. It is
sufficient if information relative to the assignment is conveyed to the debtor so that he
has notice of the assignment. In this case, the Pf’s letter of demand and the Df’s letter to the
Pf all showed the Df had knowledge of the assignment
Timing of notice
 UMW Industries Sdn Bhd v Ah Fook

Facts: A finance company let one Mr. Yew an excavator on hire-purchase. The finance
company then conveyed all its rights, interest and labilities to UMW. Subsequently, R
guaranteed the mining company on the excavator. However, notice of the assignment was not
given to R until 2 years later.
Issue: Whether failure to give notice of assignment within reasonable time fatal.
Held: The deed of assignment was absolute, and came within s 4(3) of the Act as the
conditions were all fulfilled. Further, there was evidence that the deed of assignment was
signed by a proper officer on behalf of the assignor.
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R’s complaint that the notice was given more than two years after the execution of the deed
of assignment was not valid, as neither s 4(3) of the Act nor any law has prescribed any
limit of time within which notice must be given to the debtor, trustee or other person
from whom the assignor would have been entitled to claim the debt. However, notice
must be given before the assignee takes out its writ. In this case, notice was given before
the action was commenced.
Equitable assignment
 Equitable assignment arises when assignor failed to comply with any of the statutory
requirement under S 4 (3) CLA.
 Requirements to create valid equitable assignment are easier –Only prove intent and act
of assignment.
 However even though notice not mandatory – to get relief or to attach the conscience of
the debtor –notice must be given.
Refer Khaw Poh Chuan where the Court said that even if the assignment did not cmply with
section 4(3) requirements, it is still valid in equity.
What about priority between legal and equitable charge?
According to Khaw Poh Chuan the law on assignments has not changed since the intro of
section 4(3). So legal and equitable assignments share the same strength.
According to a case below, to assess priority, see who gave notice first. The first to give
notice will prevail. Even if they are equal, then the equitable maxim first in time should
prevail, applies.
 Public Finance v Scotch Leasing
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Facts: R (Scotch Leasing) assigned 21 book debts under 21 leasing agreements to A (Public
Finance) in consideration for financial assistance given to it. The leasing agreements or the
book debts therein were assigned in pursuance of the terms of a master agreement.
The leasing company executed a debenture in favour of Perwira Habib Bank Malaysia ('the
debenture holder') under which a floating charge was created over all the undertakings and
assets of the leasing company as security for some loan facilities granted by the debenture
holder. The leasing company later defaulted. The floating charge was then cystallized, and
the debenture holder appointed a receiver and manager for the leasing company.
A, as assignee, then applied for a declaration, inter alia, that the leasing company held the
rights and property in respect of the lease agreements as trustees for it pursuant to the master
agreement.
Counsel for the debenture holder argued that the debenture holder took the 21 leasing
agreements bona fide for value without notice of the right of the finance company, as the
finance company had failed to register the master agreement with the Registrar of Companies
under s 108 of the Companies Act 1965. The High Court allowed the the debenture holder's
claim on the ground that there was no trust in favour of the the finance company as the
debenture holder was entitled to priority. Hence, the appeal by the the finance company.
Held:
 On the facts, there was no evidence as to whether the finance company or the
debenture holder had given notice to such hirers and hire-purchasers. Thus, on the
basis of notice of assignment to the debtors, the real competing claims of the debenture
holder and the finance company respectively for so-called priority had not even begun to
arise in this particular appeal.
 By being a statutory assignment itself, the 'statutoriness' of such an assignment, ipso

facto, does not prevail over an earlier equitable assignment, and this is so even with
the added factor that the assignee involved in a statutory assignment took the
assignment for value without notice of an earlier equitable assignment
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 If notice is not given, the assignee must give credit for any payment made to the
assignor by the debtor.
 This rule means that, by extension, even if the assignor assigns once more the debt to
another person in fraud or otherwise on the earlier assignee, and that other person
gives notice to the debtor; and if the debtor pays that other person or the second
assignee, then the earlier assignee must still give credit to the debtor for his payment
thus, for the debtor cannot be blamed for doing lawfully in ignorance of the title of
the earlier assignee who has failed to give notice of the assignment to the debtor.
 Notice to debtor is for the protection of the assignee himself.
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FIDUCIARY OBLIGATIONS
Equity recognizes that in some situations, there is a special relationship between individuals
that it must protect. These are fiduciary relationships. Commonly, fiduciary relationships are
those that involves some kind of trust and confidence and where which one party more
vulnerable such that he is need in the others’ protections.
How to know if a fiduciary relationship exists?
1) Presumed Categories
2) Factual Circumstances
Why is there a need for a fiduciary relationship?
Because then it allows the injured party to claim remedies available only to persons in
this kind of relationships. Most notably, this includes accounts for profits and tracing.
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Presumed Categories of Fiduciary Relationships
In these situations, the law presumes the relationship itself assumes a fiduciary relationship.
Thus, all we need to do is to find a law that recognizes that the fact pattern before us is of a
fiduciary nature. The following are some presumed categories:
1) Trustee and Beneficiary:
Keech v Sandford
Facts: A lease was devised to a trustee for the benefit of a minor – lessor refused to renew
the lease to the trust – as a result, trustee of lease renewed the lease in his own name
Held: the court ordered the lease to be assigned to the infant. A trustee must not use his
position as trustee to make a gain for himself – hence, a trustee who obtains a renewal of a
lease for himself holds the interest in the renewed lease as part of the trust estate.
2) Solicitor and Client
Boardman v Phipps
Facts: In this case, the appellants consisted of a trustee of a will trust and his solicitor. The
respondents were the beneficiaries of the will trust. The will itself was created in favour of a
certain company. The appellants discovered that the company was in losses so they decided a
takeover to the point of using confidential information for said purpose. This confidential
information obtained was during an AGM of which the beneficiaries were not informed.
Ultimately, the company was turned around to quite a profitable venture using that
information. However, the beneficiaries sued the appellants for a breach of fiduciary
relationship and account for profits.
Held: There was indeed a fiduciary relationship in part of the solicitor to the beneficiaries as
he was the solicitor to the trust. The underlying problem here is that though the company
ultimately became profitable, the appellants cannot be in a position of conflict i.e. between in
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his interest (making profits) and his duty to the principal (the beneficiaries). Thus the solicitor
was held to be in breach of that duty.
3) Promoter and Company
Case: Tengku Abdullah

Facts: The appellants in this case were promoters of a then soon-to-be-incorporated
recreational club. Before the actual club was incorporated the promoters opened the club to
some 200 over members who were deemed as provisional-members. The promoters then
convened an EGM and authorized the purchase of shares of another company for a price of
RM47 mil. The provisional-members were not invited to nor informed of that EGM.
Subsequently, the provisional-members found out that the shares prices were higher than the
given value due to some extra costs. There was also an issue since the promoters were also
the share-holders of the company of whose shares were being bought (so of course they
would have an interest in getting the highest price and profit possible). The provisional-
members sued the promoters for a breach of fiduciary duty and won. Hence the promoters
appealed arguing that they owed no fiduciary duty to the provisional-members not fiduciary
duty as they were not a class of persons to whom such duty could be owed.
Held: The Court held that the provisional-members were in fact a class of persons to whom a
fiduciary relationship could be owed. In this case, the promoters were in such a position and
had the duty to disclose that pertinent piece of information to the p-ms.
The fact that they did not do so, meant that they were in breach of their fiduciary relationship
to the respondents aka the p-ms. Hence the appeal was dismissed as the Court upheld the
decision of the lower Court.
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Fiduciary Relationship By Facts
While we can use the law to prove that a fiduciary relationship existed, there are instances
where it’s just not as clear-cut as that. However, it must be emphasised that there are not
exactly fixed elements to prove that a fiduciary relationship exists. Thus we can just quote
some landmark cases that talk about the elements. The cases identify three elements:
1) A relationship of trust and confidence;
2) Position of Vulnerability; and
3) Undertaking to act on behalf of another.
Note: Rather than confuse yourself by using a case for each element, it would be better to
layout the cases that identify that these three elements are necessary to prove fiduciary on the
facts. Once you already identify that the law requires these three elements, just apply each
element to the facts and then conclude whether there is or is not a fiduciary relationship.
Breen v Williams (Australia) :- other relevant factors include :-
Facts: The appellant was a patient and the respondent a medical practitioner. The appellant
sued the doctor on the basis that he was entitled to the right to know some of his medical
records kept by the doctor on the basis of a both a contractual and fiduciary relationship.
Held:
There was no contract in this case and thus cannot claim on that basis. As for fiduciary, this
claim also failed. The Court noted that on the facts of this case, the Australian law did not
presume that a doctor-client relationship is a fiduciary relationship. The Court also noted that
on the facts, such a relationship could not be imposed as there was no vulnerability on part of
the patient-appellant. The doctor also did not gain any advantage by keeping the patient’s
records and nor was there any undertaking by the doctor to do so. Thus the Australian apex
Court held in a 6-0 majority that absent the three elements below, the claim must be
dismissed.
(1) ‘the existence of a relation of trust and confidence
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(2) vulnerability and unequal bargaining power
(3) an undertaking by one party to perform a task or fulfil a duty in the interests of another
party.
Hospital Products Ltd v United States Surgical Corp
Facts: There was a distributer who found out how certain medical equipment were being
made. He used that information for his benefit and was sued for that reason. The cause of
action here was that of breach of fiduciary relationship to claim account for profits.
Held: The majority held that the 3 elements of fiduciary relationship were not fulfilled.
Therse elements were: 1) fiduciary has undertaken to act in the interests of another 2) that
undertaking gives to the fiduciary the power to affect the interests of the other party 3) the
person to whom the fiduciary duty is owed is vulnerable to the fiduciary’s abuse of his or her
position.
Not all undertakings arise from contract – source of their obligations is the oral trust implied
between the parties.
However, do note that the minority held that on the facts of this case, there was a fiduciary
relationship.
Extra (add if you want lah)
Aw Yong Wai Choo v Arief Trading
Held: to determine whether there exist partnership or not – the court is at liberty to look at the
real intention of the parties involved. The real intention is not necessarily the expressed
intention of the parties so that even if the parties express they are partners, the Court may
decide to the contrary after the Court considers all relevant factors taken together.
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Can just use this case to strengthen that intention is required to make it a fiduciary
relationship. This correlates with the requirement to have undertaken the promise. In other
words it is something like intention = undertaking.
Another case that held there was a fiduciary relationship despite it not being in the usual
category of presumed relationships is the case of Sagong Tasi. There is no need to discuss
this case in detail.
Suffice to say that the Selangor Government wanted to build a highway and promised to
compensate the orang asli people who were displaced because of this. The compensation was
not paid and thus they went to Court to sue the Government. The Court held that there was
an undertaking made by the Government and the orang asli were the vulnerable persons in
this relationship of trust and confidence. The Court thus found on the facts that there was a
fiduciary relationship and a breach thereof.
Remedies for Breach
We can apply the case of Tengku Abdullah in which the Court held that the beneficiaries
were entitled to claim for an account for profits. Generally, the existence of this kind of
relationship also allows for the claim of equitable tracing. In any case, if all else fails, the
beneficiary can still seek damages.
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EQUITABLE REMEDIES: INJUNCTION
1.1 Introduction
The principal remedy at common law is the award of damages to which a plaintiff is
entitled to as of right upon proof of breach, whereas in equity a remedy is not only
given for a breach but also to prevent the breach of another person’s right.
The nature of equitable remedies are: a) acts in personam, b) discretionary but are
given according to established principles, and c) given where remedies at law are
inadequate.
1.2 Definition of Injunction

 Ninno v Kow Lup Kai [1992] 2 MLJ 463 – an injunction is a judgement or order
to do or refrain from doing something
 Sari Artists Film Production Sdn Bhd v Malaysia Film Industries Sdn Bhd
[1974] 1 MLJ 123 – The plaintiff must show “some connection between the
defendant and the particular act or acts in respect of which the injunction was
sought”
The remedy of injunction is based on equitable principles and is provided in ss 50-55

of the Specific Relief Act.
 Day v Brownrigg (1878) 10 Ch.D 294 – discretion is not according to the

judge, but according to sufficient legal reasons or settled legal principles.
 Aspatra Sdn Bhd & 21 Ors v Bank Bumiputera Malaysia Bhd & Anor
[1988] 1 MLJ 97- Although the discretion [under ss 50 and 51(1) of the SRA]
appears unfettered it is, however, established that the exercise of this equitable
jurisdiction is to be governed by well-recognised judicial principles.
1.3 Classifications
If classified according to which forbid or command some positive act:
 Prohibitory injunction - to not do
 Mandatory injunction - to do
 If classified according to the point of the trial at which they are granted:
 Interlocutory/interim/temporary injunction – before trial – s51(1) SRA
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 Perpetual/final injunction – at/after trial – s51(2) SRA
Other forms of injunction:
 Quia timet injunction (against threatened wrong yet to be committed)
 Mareva injunction
 Anton Piller order
Prohibitory – i) Perpetual, ii) Interlocutory

Mandatory – i) Final mandatory, ii) Interlocutory mandatory
1.4 Prohibitory Injunction

An order that prohibits a Df from doing or continuing an action.
1.4.1 Perpetual Injunction

 Section 51(2) of SRA - “A perpetual injunction can only be granted by the
decree made at the hearing and upon the merits of the suit; the Df is thereby
perpetually enjoined from the assertion of a right, or from the commission of
an act, which would be contrary to the rights of the Pf.”
 Section 52(3) of SRA further states the situations in which perpetual
injunction may be granted upon interference of property.
1.4.1.1 Principles
A. Pf must establish a right/cause of action, not mere incovenience
 Day v Brownrigg supra
Facts: Pf lived in a house that he called Ashford Lodge. Df lived in a
smaller house called Ashford Villa, which he later changed to Ashford
Lodge. Pf sued for an injunction to prohibit the Df from doing so.
Held: The court held that there is no legal or equitable right to the
exclusive use of the name of a private residence.
 Government Of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, SC

Facts: Rsp applied for a declaration that the letter of intent issued by
the government to UEM in respect of the North and South Highway
contract is invalid, and a permanent injunction injunction to restrain
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UEM from signing the contract with the government. On the same day
of filing the suit, he applied for an interim injunction against UEM. Rsp
got it from the SC. UEM and the Govt appealed to the HC, and now the
SC to set aside the interim injunction. The issue arises is whether he
has the cause of action and locus standi.
Held: On the interim injunction, the court first held that he has no cause
of action as he has no legal relationship with UEM, which would
indicate the absence of any legal right between them. Thus, there is no
legal basis for the interim injunction. It is also held by the judges that
though the injunction was against UEM, it was in substance also to
restrain the Govt. Rsp, who lacked locus standi cannot maintain such
action. Moreover, Salleh Abas LP cited section 54(d) and (k) as one of
the reason of refusal, though note that Abdoolcadeer SCJ dissented as
he opines that it is only applicable for perpetual, not interim injunction.
B. Discretion of court
The court has the discretion to grant or withhold the injunction. For
example, if there is only nominal damage though cause of action has
been established, the court can still refuse.
o Behrens v. Richards [1905] 2 Ch 614
Pf had sought to restrain members of the public from using

tracks on the claimant’s land situate on an unfrequented
part of the coast, which use caused no damage. The court
refused to grant an injunction.
C. Inadequacy of damages
The court may held that damages are not adequate and it should grant
the appropriate remedy which is perpetual injunction.
o Martin v Nutkin (1725)

Facts: Pf were annoyed by the daily ringing of a church bell
and later the Church entered into an agreement with the Pf
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not to ring that bell during the lives of the Plaintiffs, as long
as the Plaintiffs provided the church with a new clock and
bell. The Church rang that bell in breach of the agreement
and the Plaintiffs went to court seeking a perpetual
injunction.
Held: The court granted a perpetual injunction because this
was a continuing nuisance.
D. Pf’s conduct
If the plaintiff is guilty of delay, he will not get a perpetual injunction,
if he has come to court with unclean hands, if he is guilty of
acquiescence he will not get the remedy of injunction because his
conduct is wanting.
1.4.2 Interlocutory Injunction

 Section 51(1) of SRA - “Temporary injunctions are such as to continue until a
specified time, or until the further order of the court. They may be granted at
any period of a suit, and are regulated by the law relating to civil procedure.”
1.4.2.1 Purpose
Aim: to preserve the status quo of the parties pending the trial
 Hoffman La Roche & Co AG v Secretary of Statefor Trade and Industry

[1975] AC 295, per Lord Wilberforce
“The object is to prevent a litigant, who must necessarily suffer the law’s
delay, from losing by that delay the fruit of his litigation.”
 RCA Sdn Bhd v Pekerja-Pekerja RCA Sdn Bhd [1991] 1 CLJ 19
Facts: The employees (Pf) of a company (Df) had formed and registered an in-
house union. They needed 50% of the company’s employees to join the union,
which prompt them to distribute membership forms on the premises of the
company. The company prohibited them to do so, and Pf obtained an
injunction to restrain Df from interfering. Df appealed to the Supreme Court.
Held: Section 7 of IRA prohibits workmen from persuading others to join a

trade union without the employer’s consent during working hours. There was
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no status quo which required to be preserved, as without the injunction, there
will only be some inconvenience to the Pf in its membership drive.
1.4.2.2 Guiding principles

In granting interlocutory injunctions, the Malaysian courts have consistently applied
the principles as decided in this case:
 American Cyanamid Co v Ethicon Ltd [1975] AC 396.
Facts: The Pf (owner of a patent) sued Df for infringement of the patent. The
Pf applied for an interlocutory injunction which was granted in the court of
first instance, but later reversed by the COA on the ground that no prima facie
case of infringement had been made out. The Pf subsequently appealed to the
HOL.
Held: The House of Lords (per Lord Diplock) stated that the plaintiff need
not to prove a prima facie case, as the court will determine whether there is a
serious question to be tried (the claim is not frivolous or vexatious). If there
is, and there is a doubt on adequacy of damages, then the court will consider
whether, based on the balance of convenience, an interlocutory injunction
should be granted or not. In addition to that, there may be special factors to be
taken into consideration in the particular circumstances of individual cases.
o In the present case, the special factor is once doctors and patients had
got used to Ethicon's product in the period prior to the trial, it is
commercially impracticable for Cyanamid to deprive the public of it by
insisting on a permanent injunction at the trial.
A. Serious question to be tried

 Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn
Bhd & Ors [1995] 1 MLJ 241, SC
o “…the court must be satisfied that there is a serious issue to be
tried.”
o Referring to Mothercare Ltd v Robson Books Ltd [1979] FSR
466, the court quoted that:
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“…If his prospects of success are so small they lack substance
and reality, then the plaintiff fails; for he can point to no
question to be tried which can be called ‘serious’…”
B. Balance of convenience
 How to consider?
o Would damages adequate compensate the plaintiff?
o Can plaintiff undertake to compensate if he loses the case?
o Take into account conduct of both parties
o Is there a question of urgency?
 SAP (M) Sdn Bhd & Anor v I World HRM Net Sdn Bhd & Anor
[2006] 2 MLJ 678
o Damages adequate? - As a result of Pf succeeding at trial, the
disruption of service to 3rd parties who are using the plaintiffs’
software without the plaintiffs’ consent would surely damage
the plaintiffs’ goodwill and reputation as it would make the
customers lose confidence in the plaintiffs’ software. The
damage suffered by the Pf would be irreparable and monetary
compensation would not be an adequate remedy
o Urgency? - if the interim injunction is not granted, Pf who will
not be able to control the licensing of the software, and this
would irreparably destroy the value of the copyright in the
software during the period.
o Conduct of parties? - As the defendants are not prejudiced by
the delay in the application for interim injunction and the delay
was due to ‘ongoing negotiations’ between the parties, the
delay was excused.
C. Guidelines in Keet Gerald Francis

 Keet Gerald Franics Noel John v Mohd Noor bin Abdullah & Ors
[1995] 1 MLJ 193 – Gopal Sri Ram reviewed and summarised the
guidelines on interlocutory injunction as follows:
o Whether the totality of facts presented before him disclose a
bona fide serious question to be tried...if he finds that no
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serious question to be disclosed, that is the end of the matter
and the relief is refused. (“serious question to be tried” test)
o Must consider where the justice of the case lies…take into
account all relevant matters, including practical realities…
weigh the harm that the injunction would produce by its
grant against the harm that would produce from its
refusal…inter alia, the relative financial standings of the
litigants before him…the Pf’s ability to meet his undertaking in
damages should the suit fail... (“balance of convenience” test)
o The judge must have in his mind that the remedy…is
discretionary, intended to produce a just result for the period
between the date of the application and the trial proper and
intended to maintain the status quo…entitled to take into
account all discretionary considerations, such as, delay in the
making of the application or any adequate alternative remedy
that would satisfy the Pf’s equity…any question going to the
public interest may…be taken into account. (“discretionary”
test)
1.5 Mandatory Injunction

An order directing Df to do an act. See section 53 of SRA.
“When, to prevent the breach of an obligation, it is necessary to compel the

performance of certain acts which the court is capable of enforcing, the court may in
its discretion grant an injunction to prevent the breach complained of, and also to
compel the performance of the requisite act.”
1.5.1 Final mandatory injunction

Not to be confused with “perpetual injunction” in this note, this means a mandatory
injunction which is granted after/at a trial.
 Redland Bricks Ltd v Morris & Anor [1970] AC 652

Facts: The Ap carried out excavation on their land which is adjoining to the
Rsp’s land. Due to the excavation, a large pit was formed on the Ap's land.
Nearing the end of 1964, part of the Rsp' land began to slip and some slipped
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onto the Ap's land. The Ap did remedial work but it was ineffectual and
further slips occurred. Among other remedies, Rsp obtained a mandatory
injunction to direct Ap to take all necessary steps to restore support to the
respondents' land within six months. Ap appealed on the grounds that the
injunction failed to inform them precisely what to do.
Held: The principles in granting mandatory injunction is as follows:

o Pf must show strong probability of grave injury will happen in the
future
o The injury cannot be adequately remedied by damages
o The court must consider the cost to the Df to do work to prevent or
lessen the probability of the injury, also depending whether Df had
acted reasonably.
o The order must define precisely what the Df is required to do.
In this case, Lord Diplock held that 3rd and 4th principle are not fulfilled
as the Df had acted reasonably, and there is no indication to Df what
they should do.
1.5.2 Interlocutory mandatory injunction

Although the courts have the discretion to grant mandatory injunctions before trial,
the courts have been careful that it is granted only in exceptional cases.
 Gibb & Co v Malaysian Building Society [1982] 1 MLJ 271, FC.

Facts: Rsp had applied for an interlocutory mandatory injunction that the Ap
do deliver to it the IDT and the charge documents pertaining to several units of
a housing project, and HC granted it. Ap appealed against the order.
Held: Although interim mandatory injunction is never granted before trial save
in exceptional and extremely rare cases, there is no reason why it cannot be
granted in proper and appropriate cases.
o Per Abdoolcadeer J: “the case however must be ‘unusually sharp and
clear’…high degree of assurance that at the trial a similar injunction
would probably be granted…how the interest of the parties may best be
protected (right of both parties)…questions of hardship and
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inconvenience at the meantime (balance of inconvenience)…any other
relevant discretionary considerations…”
o The court granted the injunction and stated that on the facts, Rsp had
expended a very large sum of money to provide finance for the
purchasers and thus must necessarily have security by way of charges
over the said units.
 MBF Holdings v East Asiatic Co (Malaysia) Bhd [1995] 3 MLJ 49

Facts: MBF had purchased a land from EAC by issuing its shares, but later it
was discovered that part of the land was occupied by EAC’s workers. MBF
applied for interlocutory prohibitory injunction (to restrain EAC from dealing
with its shares) and interlocutory mandatory injunction (for EAC to deliver
vacant possession).
Held: Interlocutory prohibitory injunction granted, applied American

Cyanamid. However, for interlocutory mandatory injunction, principles in
American Cyanamid were not applicable.
o For the injunction to be granted, the case must be very clear and must
be decided urgently.
o The court must be very satisfied that an injunction would also be
granted during the trial.
o No existence of special circumstances
1.8 Quia Timet Injunction

To prevent a threatened infringement of the Pf’s right which has yet to take place.
Principles – i) The applicant must prove the high probability of substantial damages
as result of the Df’s action
ii) The harm and injury suffered is irreplaceable.
 Redland Bricks Ltd v Morris & Anor supra

Lord Upjohn observed that a quia timet injunction arises in the following two
types of case:
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(i) where, as yet, no harm to the defendant has occurred but it is
threatened or intended
(ii) where harm has been done by the earlier actions of the defendant,
and the plaintiff has been compensated, but the plaintiff fears that
future wrongs may be committed by the defendant
1.9 Mareva Injunction

An ex-parte injunction that seeks to prevent Df from removing assets from the court’s
jurisdiction or from disposing of or dealing with them within the jurisdiction in such a
way as to defeat the judgment obtained against him.
 Mareva Compania Naviera SA v International Bulk Carriers SA [1980] 1

All ER 213
Facts: Df (charterers) had failed to pay rental to the Pf (shipowners) although
they had received the money from the sub-charters and had kept the said
money in a bank in London.
Held: The court held that it is appropriate to grant an injunction to prevent Df
from disposing of moneys then in the bank of London.
1.9.1 Pre-conditions/Element
 Ninemia Maritime Corp v Trave Schiffahrts [1984] 1 All ER 398
o Strength of the claim – good arguable case to be tried (“…more than
barely capable of serious argument, and yet not necessarily one which
the judge believes to have a better than 50% chance of success”)
o Dissipation of the assets – real risk that the Df’s assets will be moved
out from the jurisdiction before the judgment
 In Prof. Ramy’s note, she listed down “Pf has evidence that Df
has assets within the jurisdiction” as another element. Which
makes sense, since you need to prove the existence before the
dissipation, but I think just make it into one element?
 The risk depends of facts of each case.
 Creative Furnishing v Wong Koi [1989] 2 MLJ 153 -
Mere refusal to pay a disputed debt and the issuing of a
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dishonoured personal cheque by the director of the 2nd
Df does not amount to a real risk of dissipation.
 Seema Development v Mah Kim Chye & Anor [1998] 1
CLJ 174 – risk of dissipation must not be just mere
belief of possibility, but almost a certainty. The fact that
Df resides in Australia is insufficient to show such risk.
1.9.2 Guidelines in application

 Third Chandris Shipping Corporation v Unimarine SA [1979] 2 All ER 972
The Pf should (per Lord Denning):
o Make full and frank disclosure of all matters which are material for the
judge to know
o Give particulars of his claim stating the grounds, amount and the points
made against the Df
o Give grounds for believing that the defendant has assets within the
jurisdiction
o Give grounds for believing that there is a risk of the assets being
removed before the judgment or award is satisfied
o Give an undertaking in damages
1.9.3 Jurisdiction to grant in Malaysia

 Aspatra Sdn Bhd & 21 Ors v Bank Bumiputera Malaysia supra
“ We are of the opinion that our para 6 of the Schedule to the Courts of
Judicature Act, read with Order 29 RHC and section 50 of the Specific
Relief Act, is wide enough to confer the necessary jurisdiction to issue the
Mareva injunction…”
 Para 6, Schedule to CJA – power to provide for interim preservation of
property
 Order 29, RHC – procedures in applying for injunctions
 S 50 of SRA – preventive relief for injunction to be granted at court’s
discretion
* Note: For Rules of Court 2012, I’m not that sure, but it should be Order 29, Rule 2.
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1.10 Anton Piller Order
An exparte injunction designed to prevent destruction of articles/documents in one
party’s possession which are prejudicial to his case.
 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55

Facts: Df in his capacity as an agent receives some confidential information. Pf
suspects D had sold information to P’s competitor, but is unable to prove it
without access to documents which are in Df’s possession.
Held: AP order is not a search warrant, but an order on the Df in personam to
permit the Pf’s entry.
1.10.1 Pre Conditions

As stated by Omrod J in the case of Anton Piller:
 An extremely strong prima facie case against the Df

 The actual and potential damage must be very serious if the order is not
granted
 Clear evidence that Df has incriminating articles in his possession
 Real possibility that Df may destroy such material before an application inter
partes can be made.
1.10.2 Application in Malaysia

 Lian Keow Sdn Bhd v C Paramjothy & Anor [1982] 1 MLJ 217
Facts: Pf claimed they are the beneficial owners of a piece of land, and that
Df held the said land in trust for the benefit of the plaintiffs. Pf applied for
"Anton Piller" order to take into custody the documents in Df’s premise.
Held: There was a serious danger of the Df destroying the trust deed and
files relating to the said land, and he is in possession of such trust deed and
files.
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TRACING
Tracing is NOT a remedy so, don’t make the mistake of saying that it is. Instead, it is a
means by which one can identify their property of which will be his remedy.
Tracing in Common Law
Tracing by way of CL is a limited process. Essentially, this method allows the Court to
pursue a claim against property that has transferred hands and then allow the original owner
to enforce his rights over that particular property. However, tracing in common law only
allows the claimant to reclaim property to which he had a right under Common Law i.e. a
transfer of physical possession but not legal ownership.
There are essentially three elements:
1) There exists a pre-existing CL cause of action. (as mentioned above i.e. shift in
possession);
2) Clear succession to the property followed; and
3) The property in question at all times remained identifiable.
This is what is summarized from the cases below.
Taylor v Plumer
Facts: An investor gave a sum of money to Walsh his stockbrocker, expressly to be invested
in Exchequer bonds. Instead, Walsh used the money to purchase American bonds and bullion.
The investor pursued the stockbroker and was able to seize the investments. Eventually, the
Stockbroker went bankrupt and the trustee of the bankruptcy the investors claim over bonds
and bullion and sought order that proceeds of sale belong to the trustee of the bankruptcy.
Held: The investor-defendant was entitled to retain the proceeds of sale as the property in
them had not passed and was identifiable.
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Banque Belge v Hambrouk
Facts: A man unlawfully obtained cheques from employer and paid them into his bank
account. The money was then passed to his mistress who in turn transferred it into to her own
bank account.
Held: The money could be traced at common law to her account.
It should be noted that no other moneys were paid into that account apart from the fraud in
which she was a volunteer. If other moneys were indeed mixed into that account, then suffice
to say that tracing would not have been applicable.
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Tracing in Equity
Equitable Tracing extends the reach of the Common Law. This is because the Court may
dive into mix funds to identify the beneficiary’s property. However it has its prerequisites:
1) There must be a fiduciary relationship;
2) The property must be identifiable;
3) There are no exceptions that bar the use of this method.
Also note: That when it comes to equitable tracing, since it lets the Court dig into mixed
funds, certain rules apply.
Re Diplock
Facts: Diplock left some money on trust in his will for charity. His executor was given
absolute discretion to decide on the distribution of the gift, which he distributed to a number
of welfare homes. When the will was found to be invalid (on ground -not wholly and
exclusively charitable- a must for charities), the heirs of Diplock’s estate brought an action
for the return of the gifts by the welfare institutions. Some of the monies were used to pay
loans and for improvements or alteration of asset of charities. So, can the beneficiaries trace
and claim back the money?
Held: Where money not mixed with charities monies, charities hold in trust for true owner as
the application of the remedy should not result in injustice. In addition, claim by next of kin
to trace money into charities can succeed notwithstanding that the charities had mixed the
money with own monies. However, the charities are entitled to assert their own claim to
mixed funds so that charities and claimant would share pari passu in the mixed fund.
Note the Court also mentioned a few important details:
- In common law tracing: in order for you to trace the money, the property must be
physically identifiable.
- Lord Greene MR held that common law takes a materialistic approach to mixed funds
and looks at the physical identity of the property.
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- The Court also referred to Sinclair v Brougham in affirming that to justify a claim in
equitable tracing, there must be a fiduciary relationship between the parties.
Foskett v McKeown
Facts: X was entrusted certain sum of money by the Company (of which the claimant was
also a part) to purchase land in Portugal. Eventually, X misappropriated that money so that he
could pay off the 4th and 5th instalment of the premium on his life insurance policy (while the
first three instalments were paid using his own money). Subsequently, X committed suicide
and upon his death the beneficiaries of the policy were entitled to the insurance payment. The
claimants, who later found out about the policy, intervened claiming that since part of the
premium paid was using the company’s money, the Company was also entitled to a prorated
share of the insurance policy.
Held: The lower Courts held in favour of the defendants (the actual beneficiaries of the
policy) that only an equitable lien was created in favour of the claimants and as such they
were only entitled to the amount that was used to pay of the premium.
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Exceptions – Instances Where Equitable Tracing Is Not Allowed
Even though equity extends the reach of common law tracing, the remedy is nonetheless,
bound by certain limitations. It is inapplicable if:
1. If it involves a bona fide purchaser for value (BFPV);
Dr Usha identifies Re Diplock as the case. The charities were volunteers and hence tracing
allowed. Bona fides are “equities darlings” and thus in the absence of fraud or any other such
factors, equitable relief cannot be granted against BFPV. Bachan Singh v Mahinder Kaur
that mentions that equity applies so long as it does not affect the rights to innocent third
parties. Since equitable tracing is a creature of equity, thus, the general rules of BFVP
relating to equity in general would also, logically apply to Equitable Tracing as well.
2. If the property can no longer be identified;
The property must, at all times be identifiable. It can be metaphysical (non-corporeal), but it
must be identifiable. Property that has dissipated would cease to be traceable.
Re Diplock – the money used by the charities to pay of loans was found to have been
dissipated. The funds used to erect buildings on the land could not be disentangled from the
asset or land as the money in that aspect ceased to be identifiable.
Re Hallet
Facts: The trustee, a solicitor, mixed moneys held on trust for a client with his own
money. The trustee subsequently died insolvent.
Held: The client was allowed to trace her money into the bank account and claim the balance
remaining as trust moneys thereby removing those moneys from the pool to be distributed
among the trustees general body of creditors. Thus, this shows that money must be severable
and not mixed beyond the scope of identification.
Re Goldcorp Exchange
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Facts: Goldcorp Exchange Ltd had a business of holding gold reserves in coins and ingots for
customers wishing to invest in gold. Some gold was held for customers, but the levels varied
from time to time. The company's employees also told customers that the company would
maintain a separate and sufficient stock of each type of bullion to meet their demands, but in
fact it did not.
Held: The Privy Council advised that it was impossible to say what each customer owned,
and also impossible to know the customer’s fraction of the total. The total amount purchased
by individual customers exceeded the total amount of gold bullion that was stored.
The point here is that the property was not discernible and hence there was no way to trace
something that cannot be identified.
3. If tracing would cause hardship or result in injustice; or
Re Diplock – the Court held that the money that was already entangled with the land and the
funds used to pay off the loan and that tracing that property would result in hardship and
injustice.
4. If the account would be overdrawn;
Bishopsgate Investment
Facts: Y owned a certain company that later went into insolvency. Before that, Y in breach of
trust, put the pensions of his employees into certain overdrawn accounts. X, the accounts
from whom the pension money was withdrawn, claimed he was entitled to trace the pension
funds from Y’s overdrawn accounts over the unsecured creditors.
Held by CoA: Tracing chain between the misappropriated money and the present assets of Y
could not be established. The misappropriated money was paid into an overdrawn
account. At that point the mixed fund was exhausted. Unless there was evidence that
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payments were made to the overdrawn account with the intention of benefiting the trust
fund from which monies had been withdrawn, which in Y’s case appeared highly unlikely,
no equitable charge could be imputed against the credit balance. X could therefore not
recover any of the misappropriated pension fund monies from Yin priority to the unsecured
creditors.
Dillon LJ held there was no particular asset into which property could be traced, if an
account were overdrawn.
Relief Through Tracing – How Courts Apply It
The General rule is pari passu – divide equally
Refer Re Diplock and Foskett v McKeown. This is usually applied if the other party is not
guilty of any breach i.e. in Re Diplock’s case the other party was a charity and in Foskett the
defendants were the deceased’s beneficiaries. However, there are certain situations in which
pari passu is not applicable. In those kind of circumstances, the Court will apply Clayton’s
rule aka the ‘first in, first out’ rule. This rule essentially states that when money is mixed into
accounts, the money first withdrawn belongs to the withdrawer and the remainder pool of
money is the beneficiaries share. This is on the presumption that the money that was first
deposited belonged to the defendant and that when he withdraws the mixed money later, he is
deemed to have withdrawn his own money first. Thus the remainder is the beneficiary’s.
Refer and remember e.g. Re Hallet’s Estate above.
However, in some cases the Clayton rule is not fair and becomes a presumption that can be
displaced.
Barlow Clowes
Facts: Many investors had invested in a certain company’s collective fund and company
subsequently went into liquidation. The liquidator applied to Court to assess in what order
the investors would get their money back because it was not certain as to the order in which
the investments were made. The question was whether the Clayton Rule (first in first out) was
applicable.
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Held: The Court of Appeal held that when the Clayton Rule causes hardship, it can be
avoided i.e. it is a rebuttable presumption. In this case, the order of the investments were not
clear and it would be complicated to use Clayton’s Rule. Thus, the money was distributed to
the general rule i.e. pari passu.
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ADMINSTRATION OF ESTATES AND INTESTACY
1.1 Introduction
The term “estate” refers to the property of the deceased, both real and personal. Thus
“administration of estate’ basically means how to deal with the property of the
deceased. The administration process is carried out by the personal representative
(executor/administrator).
Probate
Section 2 of PAA defines “probate” as a grant under the seal of the Court
authorizing the executor named to administer the testator’s estate. Section 3
further states that probate may be granted to the executor appointed by a will.
Letters of Administration (LOA)
LOA is granted when a person died without a will or in situations of failure of

executors as provided under s 16 of PAA.
Who can apply for LOA - Normally, the petition for a Letter of
Administration is filed by a beneficiary who has priority over other
beneficiaries. Every other beneficiary must agree to the appointment and
renounce their rights to petition.
Regardless of the priority, the court has the discretion on to whom LOA will
be granted.
 Section 30 of PAA - Discretion of Court as to persons to whom

administration is to be granted
In granting administration the Court shall have regard to the
rights of all persons interested in the estate of the deceased
person or in the proceeds of sale thereof, and, in particular,
administration with the will annexed may be granted to a devisee
or legatee; and in regard to land settled previously to the death of
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the deceased, and not by his will, administration may be granted
to the trustees of the settlement; and any such administration may
be limited in any way the Court thinks fit:
Provided that, where the deceased died wholly intestate as to his

estate, administration shall, if application is made for the
purpose, be granted to some one or more of the persons interested
in the residuary estate of the deceased, unless by reason of the
insolvency of the estate or other special circumstances the Court
thinks it expedient to grant administration to some other person.
 Yap Kee Par V Molly Yap & Ors [1996] 4 MLJ 219
Facts: The deceased died intestate, leaving behind his second
wife and four children. One of the four children was the
petitioner. The petitioner applied for LOA of the estate of the
deceased cited the other beneficiaries (L and the other children)
who resisted his application. The reason for the opposition was
that L has priority over the petitioner to file for LOA.
Held: A female spouse does not enjoy priority over the children.
Nevertheless, s 30 of PAA gives the court a wide discretion as to
persons to whom administration is to be granted, enabling the
court to pass over a person otherwise entitled to a grant, and any
such administration may be limited in any way the court thinks fit.
In granting general or limited administration of estates, the court
must have regard to the rights of all persons interested in the
estate or to the proceeds of its sale.
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LOA with will annexed
A will exists but the executor is dead or has no capacity or refuses to act. See
section 16 and 17 of PAA.
 Re Ramanathan S/O Ar A Nachiappan [1998] 2 MLJ 90

Facts: The testator named his adopted son ('Ramasamy') as the sole
executor. The probate was granted in 1956 but Ramasamy died before
completing the administration. Hwever, by his will, he appointed his
wife as the executrix of the estate of the testator.
The wife subsequently appointed two lawyers in year 1978 and 1995
respectively to apply LOA de bonis non for the testator’s estate. Yet,
though LOA was obtained by both lawyers, they died before
completing the administration (cursed will?? LOL). In 1996, the wife
appointed another lawyer Ramanathan to obtain the LOA for the
testator’s estate. During the trial, the court examined the validity of
the grant of LOA.
Held: Must first be established that there is no chain of executorship

and all executors named in the will of the deceased must have been
cleared off by reciting their death or renunciation. (Must prove no
executors already) The manner in which the chain or representation is
broken must be shown in the oath.
LOA de bonis non

De bonis non refers to the goods of a deceased person which has not been
administered.
This happens when probate has been extracted or letters of administration

granted previously, but administration incomplete at the time of the death of
the executor or administration.
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1.4 Executor vs Administrator
 Re Yap Boon Eng & Anor [2001] 6 MLJ 442

ADMINISTRATOR EXECUTOR
o A person who obtains his authority o The person appointed by the testator
solely from the grant of letters of to execute the will.
administration. o Not required to give a bond or to
o Required to give administration bond – provide sureties for the due
s35 of PAA performance of his duties.
o As he derives his authority and powers o As he takes his powers from the
from the court, s 60(4) of the PAA, testator himself, s 60(3) of the PAA
provides that he cannot without provides that he may, without the
previous permission of the court: leave of the court, charge, mortgage or
a) mortgage, charge or transfer by otherwise dispose of all or any
sale, gift, exchange or property of the deceased as he may
otherwise any immovable think proper, subject to any restriction
property situated in any State in the will of the deceased…
and for the time being vested in
him;
b) lease any such property for a
term exceeding five years.
 Meyappa Chetty v Subramaniam [1916] AC 603

o “It is quite clear that executor derives his title and authority from the will of his
testator and not from any grant of probate….He cannot, it is true, obtain a decree
before the probate, but this is not because his title depends on the probate, but
because the production of probate…he is allowed to prove his title.”
o The rights of action of the testator also vests in the executor upon the testator’s death
– can take action on behalf of testator
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 S 39(1) of PAA - provides that prior to the grant of administration, the property of an
intestate shall vest in the Corporation (s2 of PAA defines this as Amanah Raya Berhad,
pursuant to Public Trustee Public Trust Corporation Act 1995).
 S 39(2) of PAA On the making of an order for a grant of administration by the Court all
such property shall vest in the administrator. (Means only upon granting LOA, the estate
of the deceased will vest in the administrator. Before that, it’s under ARB)
Relation Back Doctrine
This doctrine can be invoked to protect the deceased’s estate from wrongful injury in
the interval between his death and the grant of LOA to his estate.
 Foster v Bates (1843)12 M & W 226

"It is clear that the title of an administrator, though it does not exist until the
grant of administration, relates back to the time of the death of the intestate;
and that he may recover against a wrong doer who has seized or converted the
goods of the intestate after his death, in an action of trespass or trover. The
relation being established for the benefit of the intestate's estate, against a
wrong doer, we do not see why it should not be equally available to enable the
administrator to obtain the benefit of a contract intermediately made by suing
the contracting party;"
 Kechik & Ors V Habeeb Mohamed & Anor [1963] 1 MLJ 127
Facts: The first Df (widow of a deceased Mr.Ghany) was granted LOA for her
husband’s estate on December 1958, but she only extracted the LOA on May
1960. Prior to the grant of LOA, she granted sub-tenancies of portions of a
premise (of which Mr.Ghany was a tenant) to the 2nd and 3rd Df.
Pf (owner of the premise) found the 2nd & 3rd Df in occupation of the premises
and sent a notice to quit to them. Subsequently, the Pf sued all 3 Df to claim
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possession of the premise. The issue raised was whether the 1st Df can grant
sub-tenancies as LOA has yet to be granted, and how doctrine of relation back
may be applicable.
Held: The court held that when the 1st Df subsequently became administratrix,
her previous actions is protected by the doctrine of relation back.
Referring to Foster v Bates, the judge stated that the contracts of tenancy made
between the 1st Df and the 2nd & 3rd Df was for the benefit of the estate. Upon
extraction of the LOA, the 1st Df would have been able to sue for the rents if
they had not been paid. Thus, the court held that her appointment can relate
back to give the 2nd and 3rd Df a good title as they would have had if LOA had
been obtained prior to the tenancy contract.
Administration of Estates / Small Estates

What is deemed as “small estate”?
See: Small Estates (Distribution) Act 1955 and Regulations
 Section 3(2) includes both immovable and movable property above

RM2 million (pre 2008 - RM 600k)
 The debts of the deceased are not to be deducted when ascertaining the
value of a small estate. A trust property is not to be included either in
the small estate.
 A small estate must include some immovable property for example, a
piece of land, a house or a shop. Without immovable roperty, it cannot
be a small estate.
1.6.2 Jurisdiction
Exclusive jurisdiction of Land Administrator - Section 4, 5 and 7 of Small Estates
(Distribution) Act 1955
 Fatimah bt Mat Akir v Sharifah bt Haji Ahmad [1977] 1 MLJ 106:
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The court made it clear that in a small estate the jurisdiction belongs to
the administrator.
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Intestacy
Basically, apply the Distribution Act. Easy-peasy… 
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WILLS
NATURE OF WILLS AND FORMALITIES IN THE CREATION OF A WILL
Types of Estates and Administration
(a) Testate - deceased died leaving a will
(b) Intestate - deceased died without leaving a will
(c) Partial intestacy - wherein a will exists wherein only part of the property is to be
disposed of under his will (Wills Act) – other property not in will (disposed- under
Distribution Act).
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Formalities
Sections 3 - 5 Wills Act 1959
Capacity
(a) Wills Act 1959 s 4 – testator must be at least 18 years of age.
(b) Soundness of mind
Cockburn J in Banks v Goodfellow [1874-80] All ER 999 on “soundness of mind”
The testator must know that he is making a will
Directs his mind to the property
Knows or understands how the property is disposed
(c) Unsoundness of mind after execution of the will is immaterial. However a will
made during lucid intervals is valid.
(d) Where a testator is ill, incapacitated, blind or illiterate, a will may still be made
and read to him. It would be prudent tohave a doctor attest to his condition.
2 sets of wills were made for the estates of Khaw Bian Cheng: 1990 Will, and 1992 Will.
1990 Will – Drafted by the deceased’s friend, on instructions given by the deceased, all
the formal requirements had been attended to. (No problem, close friendship)
About the time when the 1990 Will were made, the deceased had some psychiatric
problems. Immediately prior to the making of the 1990 Will, the deceased visited his
regular doctor, as he wanted to be satisfied that he was mentally fit to make a will.
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Later, after the will was prepared, he went to the office of a senior lawyer, who
ascertained that the wills had been read and understood.
Held: No undue influence and that there were no circumstances that should excite its
suspicion and vigilance. There was no question of fraud, and the fact that the 1990 Wills
were read by the capable deceased was conclusive evidence that he knew and approved
of the contents, and that presumption had not been rebutted.
1992 Will - failed the test of formal validity, as it was witnessed in the absence of the
deceased, non-compliance with requirement of s5 of the Wills Act. Next, the judge also
considered the issue of undue influence.
Held: There is undue influence, and the 1992 will is thus not valid.
The fact that the deceased had no independent advice, legal or otherwise, and that his
other children were kept away was not satisfactorily explained.
The radical departure from the 1990 Wills (all changes solely favoured the nuclear
family of the person who prepared the 1992 Wills which obviously possessed great
influence with the deceased) was not explained. The strong suspicion that the radical
changes were not the result of the free volition of the deceased was not removed.
Even if there was no direct evidence of undue influence, there was more than ample
evidence that the deceased was so far under the undue influence of Cheng Poon and his
family that a conclusion is warranted that undue influence was exercised in relation to
the 1992 Wills.
Howard who prepared the Wills under which he and his family took their
extraordinary bounty and assumed all power failed to substantiate the truth, honesty
and righteousness of the 1992 Wills.
Howard failed to give clear proof that the deceased knew and approved of that part
under which he and his family took their extraordinary benefits.
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Thus, the issue (substantial validity) must be found against (Cheng Poon, Richard and
Howard).
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Section 5 of the Wills Act 1959
A valid will :
Must be written
Signed by the testator with animotestandi – with intention to give effect to the will
Signed at the foot of the document
Signed by the testator or another person in his presence or at his direction
Signature must be made in the presence of two or more witnesses
Witnesses to attest to the signature in the presence of the testator
Cases
Banks v Goodfellow (1874-80) All ER 999
Facts: John Banks made a will in which he left his estate to a niece, who was also his
heir-in-law, and who died intestate after Mr. Banks. Her heir would, therefore, receive
his estate. Mr. Banks had for some time both before and after he gave instructions for,
and executed, his will, believed that he was pursued and molested by devils and evil
spirits. He also believed that a man named Featherstone Alexander pursued and
molested, and he held this belief even after Mr. Alexander died.
There was a medical opinion that he was insane and incapable of managing his affairs,
but there was also evidence that he did manage his own funds and financial interests.
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Held: Chief Justice Cockburn reasoned that if the delusions did not have an impact on
Mr. Bank’s decisions about his will, he should not be deprived of his testamentary
autonomy. Will valid.
Re Jenkins [1931] 2 Ch 218
“a rubber stamp – is a valid signature”
Re Finn [1935] All ER 419
A testator who put his thumb in the ink bottle and places a ‘blot’ in the will, is valid.
In the Goods of Chalcraft [1948] 1 All ER 700
The initials of the testator accepted as a valid signature.
In the Estate of Cook [1960] 1 WLR 353 the will began with the name of the testatrix and
ended with words “Your loving mother”. Accepted as valid.
At the end of’ – what does this mean?
Re Hornby [1946] 2 All ER 150
Signature in a box at the side of the will – valid signature.
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Re Roberts (1881) 19 Ch D 520
In the intention of the testator, the signature was at the end of the will.
The courts gave very liberal interpretation to the above situations.
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Witnesses
Signing “in the presence of”
Case: Casson v Dade [1781] 1 Bro CC 99
Testatrix would have been able to see the will being signed through a window – said to
be “in her presence”.
Attestation
Testator to sign the will or attest the signature on the will in the presence of two
witnesses.
Betts v Gannel
Both witnesses who attest the will must sign in front of the testator
Moon v King
Not necessary for the witnesses to sign in the presence of each other
Incompetent witness
Section 8 Wills Act - the incompetence of the witnesses does not affect the validity of the
will. (e.g. at the time the will was created, a person was of sound mind. But he later
became of unsound mind. This will not invalidate the will.). Similarly, under s 9, a gift
to a witness or to the spouse of such witness is void. However, this will not affect the
validity of the will but only the gift.
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Privileged Will
Section 26 Wills Act 1959 – the will is valid even though
It is made by a minor
It is not in writing
Who qualifies to make a privileged will
(a) members of the armed forces who are “in actual military service”.
Re Wingham [1948] 2 All ER 908
Includes not only the fighting men but also those who serve in the Forces i.e. doctors,
nurses etc. Depends on facts of case.
In times of peace, police is not in “actual military service”.
In the Estate of Yates [1919] 933
An officer of the Royal Navy was entitled to the privilege when, under orders to join his
ship, he told his son on bidding farewell at the railway station that if anything happened
to him, he wanted everything to go to his wife.
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(b) A ‘mariner’ – or seaman
In the Goods of Hale [1915] 2 IR 361
Sarah Hale- (17 yrs) who worked as a clerk in a German vessel – her will was held valid
as a privileged will
Re Estate of Knibbs [1962] 2 All ER 829
Barman on a liner – statement x informal will in favour of his sister, merely imparted as
a matter of interest in an exchange of family gossip.
When does a priviledged will lapse?
Section 26(5) Wills Act 1959 - One month after termination of the position.
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REVOCATION, ALTERATION, REVIVAL AND REPUBLICATION OF A WILL
Introduction
A will is valid until revoked. The will may be revoked any time before the death of the
testator.
Revocation of a will also requires intention; i.e. he must know what he is doing.
A will is valid until it is revoked; it will stand and will take effect on the death of the person
and so he can revoke the will before his or her death.
Until such time, the will immediately take effect upon his or her death.
Methods of Revocation
Through a valid marriage
Section 12 - Wills Act 1959
A valid marriage revoke any will testator makes before marriage – Purpose to benefit widow
if testator fails to change will made before marriage.
Exceptions:
(a) a will made under a power of appointment.
(b) a will made in contemplation of marriage.
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Cases
Sallis v Jones [1936] P 43 :
After the death of his first wife, the testator was very keen to get remarried. He then made a
will. He got married. He died without changing the terms of the will. Did the marriage
revoked the will in 1977? Court said yes.
This will was made without no specific reference to the woman. At the time of the making of
the will, he had the intention to propose but he only proposed after the making of the will.
Re Knight [1944] unreported
If the testator makes a will giving his entire estate to a named beneficiary referred to in the
will as “my fiancée” X or X “my future fiancée”, this suffices – will not revoked by his
subsequent marriage to her.
In Pilot v Gainfort [1931] P 103
The testator makes a will by which he gave to “Diana Featherstone my wife all my worldly
goods” – at the time he was living with her and later he married her. Lord Merrivale P
decided – will inc contemplation of marriage and it is valid.
Revocation through destruction of a will
Section 14 - Wills Act 1959
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All or part of the will is revoked when it is burnt or torn by the testator or by another party in
his presence, and at the direction of the testator, with intention to revoke the will.
Total destruction; burning or tearing. Tearing can be done by another person provided it is
done with the instruction of the testator.
Two elements of destruction
(a) The act of destroying the will
Merely writing cancelled or revoked across the will not enough.
Not even putting a line through parts of will or signature. Only if it is rendered illegible
Cases:
Cheese v Lovejoy (1877) 2 PD 251
“All these are revoked” written on the will and the will thrown in the waste paper basket,
maid retrieved it and kept it in the kitchen – the act of destruction is not complete.
Hobbs v Knights (1838) 1 Curt 768, 778
The signature is burnt or cut off so that the witness’ signature no longer visible = destroyed.
Since the signature is the most important part of the will (s 5), cutting the signature was held
to be a significant act of destruction
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In the Woods of Morton (1887) 12 PD 141
Signatures of testatrix and attesting witnesses scratched away with penknife = destroyed
Re Adams [1990] 1 Ch 601
Signatures scored out with a ballpoint pen.
Testator called the firm and told the firm to destroy her will. The firm sent the will to her,
asking her to destroy it herself. After she died, the will was found to be heavily scribbled. The
signatures of the will were heavily scribbled to the extent that it was almost impossible to
infer whether the signatures were of the testator’s or witnesses’.
The court held that the attempted obliteration of the will showed her intention to revoke the
will, but the question was whether the act of destruction had been completed.
This depends on whether the original words of the material parts of the will are still apparent.
Since the signatures were no longer apparent, the act of scribbling on material parts of the
will had sufficiently destroyed the will.
Doe d Perkes v Perkes (1820) 3 B & Ad 489
The testator must complete the act of destruction. In this case, tore will into four pieces
before he was stopped, partly by the apologies of the devisee. Calmed down and fit the pieces
together, said “good job it is no worse.” Held that testator had not completed all that he
originally intended to do by way of destruction.
See also
In the Goods of Dadds (1857)
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Act of destruction must be carried out by the testator himself or by another person in his
presence.
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.
Wills v Wills [1909] P 157 (at the direction of the testator) Compare with
In the Estate of de Kremer (1965) 110 SJ 18
If a testator instructs his solicitor by telephone to destroy his will as he wishes to make a new
one, and the solicitor does so in the testator’s absence, the will is not revoked.
(b) Intention to revoke
Even though something has been done to revoke the will but there was no intention, then it
would not amount to a revocation. Intention is a prerequisite element for revocation.
(i) Must be possessed of mental capacity
Brunt v Brunt (1873) 3 P & D 37 (delirium tremens)
When testator tore his will, he was suffering from delirium. After the testator had recovered,
he regretted his actions and said that he would make another will, but failed to do so before
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he died. The court held that there was no revocation because since the testator was out of his
mind, he could not be responsible for his act.
In the Woods of Brassington [1902] P 1 (drunk)
(ii) Not by mistake
Re Jones [1976] Ch 200 per Buckley J at 205
“The testator may have merely torn it up, thinking that it was no longer worth the paper it
was written upon. For myself, in those circumstances, I should have thought the right
inference to draw was that he did not intend to revoke it at all; he was merely disposing of
what he thought was rubbish.”
There must be a distinction between an intention to destroy and an intention to revoke.

Because sometimes in the passion of anger there is only an intention to destroy but not to
revoke. Normally, if there is a destruction, the court will impute an intention to revoke unless
there is some other matters which rebut such intention.
(iii) There must be intention to destroy the whole will
Hobbs v Knight (supra)
In the Estate of Nunn (1936) 154 LJ 498
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Part of the will was cut out and the remaining part was stitched together. It was held that
there was a partial revocation. Probate was granted to the remaining part.
Leonard v Leonard [1902] p 243
Revocation through a new will or codicil
Wills Act 1959, section 14
A revocation clause that states “ all wills, codicils, and disposition by will made by me“ have
the effect of revoking an earlier will, but ‘this is my last will and testament’ is not an
express revocation clause.
Cases:
Lemage v Goodban (1865) LR 1 P & D 57
The will of a man is an aggregate of his testamentary intentions. If a few papers are involved,
revocation depends on the language of all papers, indicating what the testator intended to
retain or revoke.
Revocation does not depend on which paper supersedes another
Kitcat v King [1930] p 266
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“This is my last will” was interpreted as a testamentary paper read with the will, and not
revoking the will.
In the Estate of Wayland [1951] 2 All ER 1041
Two wills – one in England and one in Belgium – the revocation clause was said to have
covered the property in England only.
Re Howard [1944] P 39, 60 TLR 248
The father left a property to his son in 1930. He made two more wills in 1940 just before the
war.
In one will he gave all his property and in another he gave to his wife.
Issue: which will is executed? Soon after that, the war came and the question was did this two
wills revoked the earlier 1930 wills?
The court said yes. But that does not answer the Q on who owns the property.
Alteration of a Will
Re White
A testator dictated he wants to alter certain terms of the will. He said alterations of this will.
He did not sign, and therefore the declaration did not take effect.
You need to follow the same steps that you took when you were creating the will.
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Section 15 Wills Act 1959
(a) Was the alteration done before execution of the will?
(b) Is the alteration complete?
(c) Does the alteration render the provisions of the will unclear?
In Cooper v Bockett (1846) 4 Moo PC 419 held that it is a rebuttable presumption that that all
alteration were made after will is executed.
Any alteration after the execution of the will must be signed by the testator and
two witnesses.
Consequences of Alteration
This will depend on whether the original wording is “apparent” or not. The wording is
apparent if it can be deciphered by “natural means” (such as holding up to the light or using a
magnifying glass) without resort to “forbidden “means (such as the use of chemicals, infra-
red photography or extrinsic evidence).
If the original wording is apparent, then it will be admitted to probate. If it not so apparent,
the will is prima facie admitted to probate with a blank space where the obliteration has
occurred.
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Codicil
A document that is executed in the same manner as the will becomes a supplement to the
existing will, and is subject to the same conditions as the creation of a will.
The codicil may (i) add to (ii) alter, or (iii) revoke a previous will.
Revival and Republication of a Will
Revival is the other side of the point of revocation. To revive a will means that you resurrect
a will that has been revoked.
A will can be resurrected and thereby becomes operative again by republication of the will or
by codicil showing an intention that you want the will to be revived.
A revoked will may be revived through the republication of the will or by way of a codicil to
the will - showing an intention to that effect.
The revival may be done through the ordinary formalities or through the codicil.
(b) The execution of a codicil to a will republishes the will so that it takes effect from the
date of republication and with the insertion of the changes introduced by the codicil.
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*Revocation: s 14 (to totally withdraw the will and make it absolutely ineffective.)
*Alteration: s 15 (to add/remove certain terms of the will, but the will is still effective.)
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CONSTRUCTION OF WILLS
General rules of construction
If looks outside will for meaning then requirement will need to be in writing can be
threatened.
So the rule- deduce the intent of testator from the will itself. If unable then use rules of
construction.
So if meaning is clear on face of it – court gives it the meaning either assigned to it by given
definition/ dictionary meaning given by testator or ordinary meaning.
Problem can arise – if meaning clear but there is latent ambiguity – gift to nephew (but have
2 nephews)
The aim: to determine the expressed intention of the testator
Cases:
Perrin v Morgan [1943] AC 399 at 406
The fundamental rule in construing the language of a will is to put on the words used the
meaning which having regard to the terms of the will, the testator intended.
The question is not … what the testator meant to do when he made his will, but what the
written words he uses mean in the particular case – what are the “expressed intentions” of
the testator.
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Chong Peng Han v Chong To Jin [1990] 1 MLJ 419:
The court said that the object of the court in construing a will is to ascertain the intention of
the testator as expressed in his will. As expressed in his will when it is read as a whole in the
like of surrounding circumstances in which it was made.
Another document in Chinese which was executed on the same day. This was submitted as an
exhibit in court and he wrote this on the same day and in this particular document he
expressed his thoughts that “… it is troublesome to compel with the law … I write this will to
clarify what my intentions are …”
The court will not rewrite the testator’s will
If words used are clear – then give effect to it even though court may suspect that the result is
not what the testator intended.
Re Bailey [1951] Ch 407, 421
Will – construction- gift of residuary estate to beneficiary- “if she shall be living at the death
of my daughter “- Gift over in the event of death before daughter to nephew – Beneficiary
survives daughter but predecease the testatrix. – gift over fails .
Action by nephew to ascertain if entitled to residuary estate.
Held not to be entitled – gift lapsed and back to residue estate to next of kin.
“We will not repair the imperfection in the deposition of the estate…”
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If there is a gift to take effect on a certain condition, plus a gift over on non-fulfilment of the
condition, and the first gift lapses for reasons independent of the condition, the court,
generally speaking, cannot by inserting some new passage in the will get rid of the effect of
the lapse and fill the gap which it has created.
The court will not guess the meaning of the words used by the testator
Abbot v Middleton (1858) 7 HLC 68:
The T left some ambiguous provisions about the destination of the remainder in annuity of
life interests. Once again the court said we are not really going to perfect an imperfect gift.
Not looking at what the T meant, rather look at the words and construe from it what do the
words mean.
You must adhere to the words of testator unless some inconsistency would result from doing
so, but that rule is of so much importance that it ought not to be departed from on slight
grounds, not even upon the ground of strong probability that testator meant something
different from what he had actually said.
Re Rowland [1963] Ch 1 11-12
Spouses made wills in each other’s favour with contingent gifts in the event of their deaths
coinciding. This was construed in the strict sense of simultaneous. Consequently, the
contingent gifts did not take effect when the spouses died at sea when there would have been
a time lag between their deaths.
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The words used must be given the ordinary meaning
Prima facie the words and phrases used in a will are to be given their ordinary meaning – “the
strict, plain, common meaning of the words themselves”
Scale v Rawling [1892] AC 342
T in this case gives 3 houses to his niece for life. After her death (she leaving on child nor
children, the houses were to be passed to the nephews) so the niece died leaving of her own.
Did the T intend the houses to go to the niece or only to the nephews? Can we imply that she
wanted the niece’s children to have the property?
The court said it is not at liberty to speculate what the testator had intended to do or may have
thought that they have actually done. Where the ordinary meaning is clear – and the court
will give it that ordinary meaning.
Re James’s Will Trusts [1962] Ch 226
“My surviving children” – upon the death of one of the children, his share may be distributed
among the surviving siblings.
The question must in every case be answered by applying ordinary principles of construction
to the particular language used, and having regard to any relevant surrounding circumstances;
the language used must be construed in its natural sense unless the context shows that this
would defeat the testator's intention.
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Some words may change their meaning from time to time and some words have more than
one ordinary meaning. Thus, the presumption that a word is to be given its ordinary meaning
cannot be applied.
Perrin v Morgan (supra) - not use ordinary meaning but dictionary meaning of testator
Will drafted by layperson. Case concerned a will wherein a woman directed that “all moneys
of which I die possessed shall be shared by my nephews and nieces now living. “ Her estate
was worth more than 30,000 pounds and consist almost entirely of stock and shares.
Previous cases – word money –meant money held in cash, money in bank , debts due to
testatrix but not net residuary personalty.
Money can be given multiple meanings, the court said. The ordinary meaning can have more
than one meaning and the court will give a broader interpretation here. The facts of this case
is that there was a wealthy lady made a home-made will to certain names relations. The will
that she left also divies realty and give some other names of beneficiaries. Issue: what does
she means by “all monies” here?
The court said money does not have a fixed meaning, the court may choose several meanings.
“Money” can mean “shilling” or “real property”.
Meaning of words may change or they may have multiple meanings.
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Technical words are given technical meaning
Re Harcourt [1921] 2 Ch 491, 503
Falkiner v Commissioner of Stamp Duties [1973] AC 565; 577-578
Re Cook [1948] Ch 212
T made her will on a printed will form and gave “all my personal estate whatsoever” to her
named nephew and nieces. T’s estate consisted mainly of realty (real, fixed property).
Court held that T’s realty was not disposed of by her will, and devolved as on her intestacy:
“It seems unlikely that she intended to dispose only of the personal estate in the lawyer’s
sense of the word... but this is a case where a layman has chosen to use a term of art.
The words ‘all my personal estate’ are words so well-known to lawyers that it must take a
very strong context to make them include real estate.
Testators can make black mean white if they make the dictionary sufficiently clear, but the T
has not done so.
It may well be that she thought ‘personal estate’ meant ‘all my worldly goods’; I do not
know. In the absence of something to show that the phrase ought not be so construed, I must
suppose that the term ‘personal estate’ in its ordinary meaning as a term of art.”
Note:
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The presumption that technical words be given technical meaning may be rebutted by the
dictionary principle (a testator is free to use technical legal words and expressions to mean
whatever he wants, provided he makes the sense in which he is using them clear in his will –
i.e. Perrin v Morgan)
The will must be construed as a whole
Re MacAndrew’s WT
The fundamental duty of the court is to ascertain the fundamental intention of the T as
expressed in his will as a whole.
(a) Uncertainty
The court looks to the general meaning of the will using extrinsic evidence that is permitted
by the court. So you can look what is outside e.g. “who are his relatives? Kinship?
Relationship? Or whatever.
(b) The dictionary principle
It may be used to rebut the presumption of ordinary meaning. This means the testator has, in
his will, supplied his own dictionary.
Thus, where a testator explains the use of certain words, the courts must give it that particular
interpretation.
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Re Davidson [1949] Ch 670
A testatrix by her will made specific bequests to "my son John Foster Davidson" and "my
granddaughter Nora Margaret Davidson.
The testatrix married the husband of her deceased sister. The beneficiary of her will, John
Foster Davidson was the son of her husband and her deceased sister while the granddaughter
is the daughter of John Foster Davidson.
The question was whether John Foster Davidson though not the son of the testatrix was
entitled to the gift and whether the children of John Foster Davidson were to be regarded as
grandchildren for the purposes of the will.
The court held:
The testatrix had not made any mistake in her use of language but had plainly, deliberately
and well knowing the facts to be otherwise described John Foster Davidson as her son and
Nora Margaret Davidson as her granddaughter and had used the word "grandchildren" in a
sense peculiar to herself but plainly indicated in the will.
Re Lynch [1943] 1 All ER 168
The testator appointed "my wife Annie Ethel Lynch" to be one of the executors of his will.
Annie Ethel Lynch was the daughter of the testator’s brother, she was not and could never be
legally married to the testator.
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On the true construction of this will, the testator had provided his own dictionary; it was clear
that he intended Annie Ethel Lynch when he said "my wife" and until "her remarriage" must
in the context mean until her marriage. Therefore the gift did not fail and she was entitled to
her life interest until her death or marriage.
(c) The courts may insert, delete and change the words that are used
However, the scope for this is limited and must be used with caution. This may be done in the
circumstances where:
(i) certain words or provisions are omitted; and
(ii) there are mistakes in the words used
Re Whitrick [1957] 1 WLR 884:
A lady left her property by will she gave her entire estate to her husband. And then she
added” in the event my husband and I die at the same time, then give my estate to 3 people
who are my relatives”.
The court said that the words in the will did not express the contingency which she intended
to provide either her husband first or they die at the same time. Therefore appropriate words
should be supplied.
She didn’t think about it as a matter of necessary implication the court will not rewrite the
testamentary will but at the same time they look at the four corners of the will to look at what
this lady actually intended to provide.
(d) In situations where two provisions in the will cannot be reconciled:
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Re Isaac [1905] 1 Ch 427
The question to be determined was what is the destination of the legacies which have lapsed
by the deaths of the two legatees in the lifetime of the testator, whether to the first residue or
the second?
Held, that the lapsed legacies fell into the first residue and did not go to H.
Because if the prior gift of one or more of the shares of "the remainder" were to fail, owing to
a lapse by the death of the legatee in the lifetime of the testator, the subsequent disposition
appointing a residuary legatee would take effect.
If some person entitled to a share of the remainder died in the lifetime of the testator, there
would be a lapse of a part of the first disposed of residue, and under the second disposition
the residuary legatee would take something.
The second residuary legatee would only be entitled to something if there is lapse in part of
the first residue.
Re Gare [1952] Ch 80
Re Alexander’s WT [1948] 2 All ER 111
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By a clause of her will the testatrix bequeathed "my five row diamond bracelet" to a
beneficiary and by a subsequent clause she bequeathed "my diamond chain bracelet" to
another beneficiary. The testatrix possessed only one diamond bracelet containing eight rows
of diamonds, which, according to extrinsic evidence, she generally referred to as "my five
row bracelet," sometimes as "my chain bracelet" and sometimes as "my diamond bracelet."
The court held:
(i) The existence of only one article available to answer two bequests framed in different
language was a latent ambiguity, so that extrinsic evidence was admissible.
(ii) as there was good ground for concluding that the testatrix had directed her mind to the
earlier gift at the date of execution of the will, the rule that a later disposition prevails over an
earlier had no application, and, the article being divisible, each beneficiary was entitled to a
moiety (each of two parts of which a thing can be divided)
(e) Rule of despair
Where there are two conflicting provisions – the later provision is given preeminence because
it was deemed to be the testator’s last thought.
E.g. I give 1 thousand dollars to my son but in bracket: 100 dollars. The court said just gives
eminence to the last sentence because it is the testator’s last word.
Re Potter’s WT
The testator gave a share of his residuary estate to his daughter and she would be entitled to
such gift when she get married. There was also provisions given to the daughter’s children.
She got married to T and subsequently to B.
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The question that arose was whether the children from the second marriage was entitled to
the settlement as the settlement ought to have provided for them equally with the children of
the first marriage.
The court held:
(1) That the clause of the will dealing with the event of the daughter "leaving any child
children or issue of any child or children whether married with her guardians' consent or
otherwise" was reconcilable with the direction for a settlement in favour of the daughter and
any children she might have;
(2) That the settlement ought to have been made in conformity with the clause; and
(3) That in the clause the word "any" must be given its full meaning, with the result that the
daughter's share was distributable among the children of both marriages who survived their
mother.
The intention to revoke must be clear
Re Freeman [1910] 1 Ch 681, Per Buckley LJ:
The principle is that a clear gift in a will is not to be cut down by anything subsequent which
does not with reasonable certainty indicate the intention of the testator to cut it down. If
there be a plain gift in a will the court will not say it is defeated by something ambiguous in a
codicil which does not plainly cut down the previous gift.
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Admissibility of extrinsic evidence
What kind of evidence that can be used to prove contrary intention of the parties) normally no
other evidence can be used outside the will. However, there are some situations which are
permissible (see below)
General rule“ A gift admitted to probate is absolute
It shall be construed ccording to the terms of the will. No extrinsic evidence is allowed in the
construction of a will.
Case: Baylis v Att Gen (1741) 2 Atk. 239
Extrinsic evidence is not admissible in a court of construction to fill up

total blanks in the will.
However, extrinsic evidence may be allowed in a number of situations:
(a) to prove the existence of a condition
(b) to prove the existence of the object or subject matter of a gift.
Use of extrinsic evidence after the death of the testator
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Armchair principle
Per James LJ in Boyes v Cook (1880) 14 Ch D 53, 56
You may place yourself so to speak in [the testator’s’] armchair, and consider the
circumstances by which he was surrounded when he made his will to assist you in arriving at
his intention.
By his will, the testator devised and bequeathed all his property to trustees upon trusts for his
wife and children.
He subsequently drew a separation deed without altering or revoking his will.
Question arose as to the execution of power whether in accordance to the will or the
separation deed.
The court held that the will was a good execution of the power: and that the settlement and
the circumstances under which it was executed could not be looked at to shew a contrary
intention.
Court further held that the surrounding circumstances could be looked at in construing the
will.
But when it is said that surrounding circumstances may be looked at, that only means that the
circumstances existing at the time when the testator made his will may be looked at.
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You may place yourself, so to speak, in his arm-chair, and consider the circumstances by
which he was surrounded when he made his will to assist you in arriving at his intention.
But to look at a settlement subsequently executed is not to look at the surrounding

circumstances which existed when the will was made.
See also the following cases:
Charter v Charter [1874] LR 7 HL 364
Extrinsic evidence is admissible when:
i) The description of the legatee, or of the thing bequeathed, is equally applicable, in all its
parts, to two persons or to two things.
ii) As to put the court in the position of testator in order to ascertain the bearing and
application of the language which he uses
"It is only where in a written instrument the description of the person or thing intended is
applicable, with legal certainty, to each of several subjects that extrinsic evidence, including
proof of declarations of intention, is admissible to establish which of such subjects was
intended by the testator.”
Kelly v Chalmer [1856] 23 Beau 195:
Related to jewelry business, the words IXX and OXX, symbols used by the testator to denote
the meaning of 100 pounds and 200 pounds.
Court held, who is the guy who actually made this will?
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The fact that he is a jeweler he knows the symbol; this is common practice in jewelry
business
(to ascertain the identity of the subject matter)
(b) Where the words used are nonsensical when given the ordinary meaning
Re Smalley [1929] 2 Ch 112
A testator by his will gave all his property to "my wife E. A. S." The testator left a lawful
wife M. A. S., but about five years before his death had contracted a bigamous marriage with
a widow E. A. M. who lived with him and was known as E. A. S., and believed she was, and
was reputed to be, his wife.
The question arose as to whom did he really intended to benefit under this gift.
The court held that the will, taken in connection with the surrounding circumstances,
indicated that the testator intended to benefit E. A. M., she being in a secondary sense and by
repute his "wife," and therefore she was entitled, although not his wife nor bearing his
surname.
Court allowed extrinsic evidence to clarify who was the intended beneficiary, the court
allowed evidence that the testator was living with EAM, the widow and that she was by
repute considered to be his wife, and it is difficult to believe he would make a mistake in his
wife's name, and the word "wife" can be used in a secondary sense.
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The court held that the construction of the testator's will least open to error is to say that he
meant to indicate the person with whom he was living as his wife at the time of his death,
EAM.
Re Bailey [1945] Ch 191
“Residuary legatee” read as “residuary beneficiary”.
The term residuary legatee," strictly speaking, refers only to personal estate. The question
was whether the testratix intended M.J to be the residuary beneficiary who will be entitled to
both the personal estate and real estate of the testratix or mere residuary legatee.
The court held that the words "residuary legatee" have only one natural meaning and prima
facie refer to personalty.
The only question is whether there is sufficient context in this will to extend the natural
meaning of the phrase.
The mind of the testatrix was directed to both her real and her personal estate, and when it
appears that her personal estate was worth less than 300l, while her real estate was worth
about 3,000l.
It seems to me that she intended Marjorie James to be her residuary beneficiary
(c) Equivocations
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Where gift is given to a named person but there is more than one person or object that fits
that description
Doe d Gord v Needs (1836) 2 M & W 129:
The testator made various gifts to various people, includes a gift made to John Gord, the son
of John Gord, George Gord, the son of George Gord.
The issue was which George was he talking about and is entitled to the benefits under the last
mentioned gift?
In this case, evidence of the T’s declaration was allowed, to show the T’s intention.
What this case shows is that in situations there are ambiguities on the face of the will, perhaps
it is necessary to look at the extrinsic of the surrounding circumstances to know what it
exactly means.
Re Jackson [1933] Ch 237
Testatrix devised and bequeathed all her real and personal estate to her trustees upon trust for
sale and conversion, and to hold the net proceeds upon trust for her two brothers, two sisters
and ‘my nephew Arthur Murphy’ in equal shares.
Testatrix had three nephews named Arthur Murphy, two of whom were legitimate sons of
two of her brothers and the other was an illegitimate son of a sister.
The illegitimate nephew had married a legitimate niece of testatrix and was well known to
testatrix, whose affairs he had managed before her death for some time.
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Held:
(1) if there had been only the two legitimate nephews it would have been impossible to tell
which of them was intended, and the ambiguity would have caused an intestacy;
(2) Although as against legitimate claimant evidence could not be admitted in favour of an
illegitimate claimant, the court was entitled in the circumstances to look at evidence as to the
family;
(3) If from such evidence it appeared that testatrix did not intend to describe either of the
legitimate nephews, but did intend to describe the illegitimate nephew, the court could not
disregard such evidence;
(4) In order to avoid ambiguity the court was entitled to consider the claim of the illegitimate
nephew;
The court allowed extrinsic evidence to prove that the person who had married a niece of
testatrix, and so was in a sense a nephew, was clearly intended by the words used in the will;
and the illegitimate nephew took a share of the residuary estate.
Asten v Asten [1894] 3 Ch 261
The testator had 4 houses to be given to his 4 sons. But houses were not numbered in the will.
The court held:
It appears to me clear from the will that what the testator intended was to give a particular
house to each son, and not to give any right of selection or election to any son.
Owing unfortunately to the houses not being numbered at the date of the will, and their
descriptions as given in the will being undistinguishable, I cannot tell from the will which
house the testator intended to give to any of the sons.
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And it is admitted that no extrinsic evidence will supply the deficiency of description, or
enable the Court, on inquiry, to ascertain which house was intended by the description of it
in the will.
Re Ray [1916] 1 Ch 4
A testatrix gave "No. 83 Cambridge Road to my great nephew Frederick Johnson." In an

earlier part of her will she had given another house "to my great nephew Richard Johnson."
She had no relations of the name of "Johnson," but had a niece Elizabeth Johnstone, who had
three sons, Robert William Johnstone, Joseph Francomb Johnstone (known as "Frank"), and
Richard Johnstone.
The question was whether extrinsic evidence is admissible to ascertain whether Joseph
Francomb Johnstone (the great-nephew) or any and which other person, was the legatee
meant and intended by the testatrix under the description "Frederick Johnson”.
The court held that:
Evidence of intention is admissible where the description of the legatee, or of the thing
bequeathed, is equally applicable in all its parts to two persons, or to two things. Here the
description of the legatee, viz., "my great nephew, Frederick Johnson," is equally applicable
in all its parts to "Robert William Johnstone" and to "Joseph Francomb Johnstone," though
not completely applicable to either of them.
Thus, the evidence of intention must, therefore, be admitted.
Other Rules
The Golden Rule
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Esher MR – Re Harrison Turner v Hellard ( 1885) 30 Ch D 370
Where a testator has executed a will in solemn form you must assume that he did not intend
to die intestate when he had gone through the form of making a will. You ought if possible to
read the will so as to lead to a testacy not an intestacy.
Ejusdem Generis
Rule provides that where a wide word is used in conjunction with several narrow word then
the scope of wide words will be controlled by the narrow words.
In Re Miller Daniel v Daniel (1889) 61 LT 365 the testator made specific bequest of his
books , wine and his plate and then made a residuary gift of all the rest of the furniture and
effect at my residence.
Held by itself effect will include all personal property but in this case held that words must be
construed ejudem generis with the preceding words and not include share certificates and
bank notes.
However rule may be rebutted by contrary expression of intent of testator. Again it is for the
court to decide if there is that contrary intent.
Re Fitzpatrick ( 1934) 78 Sol Jo 735 – where there was a gift of “my house and all my
furniture and effects the word effects was not construed ejusdem generis and was held to
include all the personalty of the testatrix.
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Falsa Demonstratio non nocet cum de corpore constat
Where the description of a person or property is made up of more than one part , and one part
if true and the other false , then if the part which is true describes the person or property with
sufficient certainty , the untrue part will be rejected and not vitiate the gift.
Pratt v Matthew ( 1856) 22 Beav 328 - where there was a gift to “my wife Caroline” and the
testator had a wife Mary but lived with a woman Caroline with whom he had gone through an
invalid ceremony of marriage, the word wife was held not to invalidate the gift and Caroline
took.
Where Testator devised all freehold houses in a named place and it appeared that the testator
had no freehold houses there but leasehold houses the gift was sufficient to pass the
leaseholds – Day v Trigg ( 1715) 1 P Wms 286
SPECIFIC RULES
Failure of a gift under the will
4.1.1 ‘Disclaimer’ by a beneficiary
Case: Townson v Tickell (1819) 3 B & Ald 31
“The law is not so absurd as to force a man to take an estate against his will”
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However:
(i) when a person has accepted the gift – he cannot afterwards

disclaim it;
(ii) he cannot accept part of the gift and disclaim the other.
Lapse
Where a testator predeceases a beneficiary, or a corporation is dissolved, the gift lapses and
becomes part of the residue.
S 19 Will Acts
4.1.2.1 Exceptions
(a) Gifts that are given to fulfill a moral obligation
Williamson v Naylor (1838) 3 Y & C 208
To settle own debt:
A father gave a gift to settle his debt, so even though the beneficiary will predeceases the
testator, the gift will not lapse.
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Re Leach’s WT [1904] 2 Ch 232
To settle the son’s debt:
That gift will not lapse even if the B predeceases the T.
Steven v King [1904] 2 Ch 30, 33 Per Farwell J:
I think that the cases… have established the rule that, if the Court finds, upon the
construction of the will, that the testator clearly intended not to give a mere bounty to the
legatee, but to discharge what he regarded as a moral obligation, whether it were legally
binding or not, and if that obligation still exists at the testator’s death, there is no necessary
failure of the testator’s object merely because the legatee (beneficiary; it indicates the type of
gift i.e. legacy e.g. money instead of immovable property) dies in his lifetime; and therefore
death in such a case does not cause a lapse.
(b) Gifts to issue under s 25 Wills Act 1959:
If the beneficiary dies leaving issues (children or grandchildren), the gift is saved from lapse.
The presence of those issues will save the lapse.
But that does not mean the issues will automatically get those gifts, you will still need to
go back to the will to see what was provided for in the will.
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Re Meredith [1924] 2 Ch 552:
A contrary intention in the will may exclude the application of s 25 if the testator makes it
clear.
The T made a legacy of 100 pounds to his son, and he left the residue to his 5 children and
those children included the son.
The son died before the T, and he himself left 2 children behind. Because he had 2 children,
those 2 children saved the gift from lapse.
But the T, not realizing this, made a codicil, and said ‘if in the event there is any lapse, then
I will give 100 pounds to each of the son’s children.
So there is a clear intention or contrary intention, in which the effect is s 25’s application
is excluded. The gift is not saved by lapse by s 25.
Elliot v Joicey [1935] AC 209 – at 229-233
Do not include issues en ventre sa mere i.e born after the death of the testator
(c) Charity – general charitable intention – gift may be used cypre´s.
(d) Substitutionary gift
If there is a substitution to a gift, then the words in the will will apply.
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Re Greenwood [1912] 1 Ch 393, 396
To A “but if he shall die in my lifetime to his legal personal representatives”.
(e) Gift to joint owners (except where both predecease the testator)
4.2 Commorientes (provided by statute)
Normally, if 2 people die together, don’t know who dies first, it is presumed the older
predeceased the younger and therefore the will that the T made will remain valid. (the
younger is deemed to have survived the older)
See: Presumption of Survivorship Act 1950
In all cases where, after the commencement of this Act, two or more persons have died in the
circumstances rendering it uncertain which if them survived the other or others, such
deaths shall (subject to any order of the court), for all purposes affecting the title to property,
be presumed to have occurred in order of seniority, and accordingly the younger shall be
deemed to have survived the elder.
Case: Hickman v Peacey [1945] AC 304
119
2015/2016
(bomb explosion – it is not known who died first)
Can you say for certain which of these two dead persons died first? If you cannot say for
certain, then you must presume the older to have died first.
It is immaterial that the reason for your inability to say for certain which dies first is either
because you think they both died simultaneously or because you think they consecutively
but you do not know in what sequence.
Exceptions
Husband and wife (intestacy)
See S 6 (3) Distribution Act
When the intestate and the intestate’s husband or wife have died in circumstances rendering
it uncertain which of them survived the other, this section shall, notwithstanding any rule of
law to the contrary, have effect as regards the intestate as if the husband or wife had not
survived the intestate
4.3 Date from which the will speaks
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As to property – will takes effect as if it had been executed immediately before the death
of testator
Section 18 Wills Act 1959
Every will shall be construed, with reference to the property comprised in it, to speak and
take effect as if it had been executed immediately before the death of the testator, unless a
contrary intention shall appear by the will.
Cases:
Trinder v Trinder (1866) LR 1 Eq 695
A provision for “all my shares in Marks & Spencer Ltd“ refers to T’s property at the time
of death subject to any contrary intention.
Re Evans [1909] 1 Ch 784
‘...all my lands in the country of Kent’ Re Willis [1911] 2 Ch 563
“all that my freehold house and premises situate at Oakleigh Park, Whetstone ... in which I
now reside.” Was devised to wife .
Between the date of will and death testator acquired 2 more plots that he enjoyed with the
house
Eve J asked question – “in which I now reside “ was an essential part of the gift or was
simply added as an additional description , inaccurate at the date when the will came into
operation “
Held the latter so 2 additional lots passed to wife
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The statement “in which I now reside” – refers to the time of his death.
Re Willis [1911] 2 Ch 563
“all that my freehold house and premises situate at Oakleigh Park, Whetstone ... in which I
now reside.” Was devised to wife .
Between the date of will and death testator acquired 2 more plots that he enjoyed with the
house
Eve J asked question – “in which I now reside “ was an essential part of the gift or was
simply added as an additional description , inaccurate at the date when the will came into
operation “
Held the latter so 2 additional lots passed to wife
The statement “in which I now reside” – refers to the time of his death.
As to person – at the time of will
Person fulfilling the name or description at the time of will
Re Whorwood Ogle v Lord Sherborne (1887) 34 Ch D 446
122
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The testator bequeath a cup to “Lord Shelborne” . Lord Shelborne was alive at the time of
will but predeceased the testator. Held gift was the Lord Shelborne who was alive at the time
of will ( not successor) and gift lapsed upon his death .
So a gift to the wife of A means A wife at the time of will.
4.3.3 Doctrine of ademption
The gift must exist at the time the will was executed.
Ademption is a term used in the law of wills to determine what happens when property

bequeathed under a will is no longer in the testator's estate at the time of the testator's death.
For a devise (bequest) of a specific item of property, such property is considered adeemed,

and the gift fails. For example, if a will bequeathed the testator's car to a specific beneficiary,
but the testator owned no car at the time of his or her death, the gift would be adeemed and
the aforementioned beneficiary would receive no gift at all.
Can occur where the testator sold the property or given it away. Then gift fails.
123
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Harrison v Jackson
Ademption occurs when no property that meets the description of the subject matter of a
specific bequest is found amongst the property of the deceased at the time of his or her death.
But what happens if there is has been a change of name or form rather than a change in
substance .
Note : if there is a change in substance the gift fails but not if there is a change of form.
Compare :
Re Slater [1907] 1 Ch 665
The testator made a specific bequest of shares in the Lambeth Waterworks Company. The
undertaking of this company was transferred to the Metropolitan Water Board and stock was
issued by the Board to replace the original shares. The CA held this was a change of
substance and the gift failed .
Re Clifford [1912] 1 Ch 29, the testator will contained a gift of twenty three of the shares
belonging to me in a particular company. Subsequently the company changed its name and
each of the original shares was subdivided into four new ones. It was held that the original
subject matter of the gift remained though changed in name and form . It was not therefore
adeemed and took as a gift .
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4.3.4 Interests acquired after the execution of the will
Re Russell [1882] 18 Ch D 432
T by his will made a gift of his share of the partnership which at the time amounted to
1/3.
Later, he acquired all the shares and became a sole proprietor – the gift included the
whole of his interests.
4.4 Public policy
A beneficiary will not be allowed to receive an interest under a will of a deceased against
whom that beneficiary had committed a wrong – eg, where he murdered the testator.
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Here a beneficiary who had murdered the spouse was denied the right to claim the payout
under a life insurance policy, on the basis that the wrongdoer should not be allowed to
profit from the crime.
Affect also dependent gifts
125
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Re Crippen [1911] P 108 - Dr Crippen murdered his wife who died intestate. If had not
murdered her he would be the beneficiary of her estate. Dr Crippen was subsequently
executed having made a will in favour of his mistress. Court held mistress could not take
through Dr Crippen estate the property which devolved to intestacy of wife.
126

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LXEB 3110 Equity Exam Notes

EQUITABLE INTERESTS IN PROPERTY......................................................................28

EQUITABLE REMEDIES: INJUNCTION........................................................................65

ADMINSTRATION OF ESTATES AND INTESTACY...................................................86

A good example is Walsh v Lonsdale (Foreign/English case) vs Law Tanggie (Malaysia) –

1. Equity will not suffer a wrong to be without a remedy

2. Equity follows the law

3. Equity acts in personam

 Penn v Lord Baltimore

4. He who seeks equity must do equity (future conduct)

 Lodge v National Union Investment

Facts: B borrowed money from M, unregistered moneylender and mortgaged certain

 The parties cannot by agreement exclude the application of the maxim.

CONTRAST these 2 cases:

 Palaniappa Chettiar v Arunaselam Chettiar (Unclean Hands) – Malaysian case

This statement is summarized below:

6. Delay defeats equity

 Erlanger v New Sombrero

Facts: Erlanger (respondent-defendant) bought the lease of the Anguilla island

Held: promoters of a company stand in a fiduciary relationship to investors, meaning they

 Re Len Chee Omnibus v Lee Chee Omnibus (Malaysia)

 Goh Kheng How v Raja Zainal Abidin (Malaysia)

7. Equity looks to the substance rather than the form

 Wan Naimah v Wan Mohd Nawawai (Federal Court)

8. Equity regards as done that which ought to be done

 Walsh v Lonsdale (see above)

 Margaret Chua v Ho Swee Kiew & Ors [1961] MLJ 173

 Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd

 Vallipuram Sivaguru v Palaniappa

EQUITABLE INTERESTS IN PROPERTY

Characteristic of proprietary right

 National Provincial Bank Ltd v Ainsworth

Recognition of equitable interests in property

 Equitable interests may arise in a number of situations:

1. Beneficial interest under an express trust

(c) Direction by the owner of property, to a 3 rd party in possession, to hold the

 Wan Naimah v Wan Mohd Nawawai

Held: dismissing the appeal:

- Otherwise, every imperfect instrument would be made effectual by being converted

2. Beneficiary’s interest under a deceased’s estate

 Khaw Poh Chuan v Ng Gaik Peng

Chong Fook Sin v Amanah Raya

3. Contract of sale of property

 Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd (FC)

4. Beneficial interests that arise by implication of law

 Law Tanggie v Untong Ak Gantang

5. Equitable interests imposed by the courts

 Court will, by reason of unconscionable conduct of the wrongdoer, impose a

 AG Hong Kong v Reid

6. Assignment of future property in equity

At common law, an assignment of property to be acquired in future is void in that common

Competing Equitable Interests

Representation by conduct or convention

Amalgamated v Texas Commercial Bank

Principle from Brandon LJ : This form of estoppel is founded, not on a representation of

In the case of (amalgamated) it talks about estoppel by convention Estoppel by convention in

Waltons Stores v Maher

 Promisor makes a promise

 Promisee relies on this to his/her detriment; and

 It is unconscionable, having regard to the promisor's conduct, for the promisor to

Case: Guindarajoo v Satgunasingam

s 4 of the Civil Law Act 1956:

- Hence, a statutory assignment must be: