TUTORIAL 3 (1181100348) (NAZARENE EZEKIEL)

After read your email, Mr. Thorn intended to make a will. He managed to list all his current
estates and beneficiaries. Mr. Thorn then informed Ms. Daisy, his attention. Ms. Daisy noted
the instruction of the will by using her laptop. (typing/ computerized)

Mr. Thorn informed Ms. Daisy that he wanted to bequeath his properties to his wife Mdm.
Rose, and to her in equal share. In that will also state that, Delko, Mr. Thorn’s cousin, is
appointed as an executor and receive RM150,000.00. Mr. Thorn also mentioned that the
residue (if any) will be given to Ms. Daisy’s children for an education trust. In the event, Ms.
Daisy has no children, the residue will be distributed according to rule of intestacy.

Ms. Daisy, after confirmed by Mr. Thorn, printed the said will. After perusal, Mr. Thorn then
executed the will at the back of the last page the execution done in front of Ms. Daisy and his
housemaid, Orchid.

When Ms. Daisy attested the will as a witness, Orchid was answering the telephone call at the
living room. Later on, Orchid attested the will but at that time Mr. Thorn was in the washroom.
Orchid, is an illiterate but she can speak well in English. Discuss.

The first issue is whether the will of Mr. Thorn typed-written with laptop is equal to
written form. This can be seen in Section 3 of Interpretations Act 1967 states that “written
includes typewriting printing or any other method of recording information in a form of capable
of being preserved. Section 5(1) of Wills Act 1959, states that no will shall be valid unless it is
in writing and executed in manner hereinafter mentioned. Based on the case, Leong Chi Kong
v Tan 2015 CLJ 408, typewritten, printing, lithography, photography, electronic storage, or
transmission or any other method of recording information or fixing information in a form
capable of being reserved. As long as the content of the will can be preserved until all the
matters are disposed, it falls within the meaning of writing (mode of representation).

By applying to this to the will of Mr Thorn the typed-written with laptop amounts to written
form.The will of Mr Thorn was typed out by Ms Daisy using her laptop. The will is then printed
out by Ms Daisy after the confirmation of the will by Mr Thorn. Although section 5(1) of the
WA 1959 does not define the meaning of in writing, the court in the case of Leong Chi Kong
v Tan defined the meaning of writing according to Interpretation Act as typewritten and
printing or any other method in a form capable of being deserved. Thus, the will of Mr Thorn
which was typewritten and printed out falls within the meaning of writing. Therefore, Section
5(1) of the WA1959 is satisfied.
Attestion (acknowledgement) by signing the will

The second issue is whether the position of the execution of the will is in accordance
with the Section 5(2) of the Wills Act 1959?

Section 5(2) of Wills Act 1959, every will shall be signed at the foot or end thereof by the
Testator or if the signature is signed by the testator, it is sufficient. In the case, Re Robert
(1881), The signature must be at the end of the will creating a presumption that the testator had
gone through the whole document before signing it.
By applying to the situation above, the execution of the will by Mr. Thorn at the back of the
last page. In addition, according to the case of Re Robert, the general rule is that the signature
must be at the end of the will. Moreover, the Mr. thorn ‘s signature is an intention to execute
the will. Now, signature can be anywhere on the will, provided that it appears that it intended
to give effect it. Therefore, the the will is valid.

The third issue is whether the witnesses of the execution of will is in accordance with the
section 5(2) of the Wills Act 1959?

Section 5(2) of Wills Act 1959, Every will shall be signed at the foot or end thereof by the
testator or by some other person in his presence and by his direction; such signature shall be
made or acknowledged by the testator as the signature to his will in the presence of two or more
witnesses present at the same time, and such witnesses shall subscribe the will in the presence
of the testator, but no form of attestation shall be necessary. Based no the case, Dr k
shanmuganathan v periasamy, the will was signed in front of 2 witnesses, the 2 witnesses need
to attest. It is provided that it is not necessary for the witnesses to attest at the same time as
long as the witness attest in front of the testator.

By applying to the situation above, the presence of witness maybe acceptable as the execution
of the Mr Thorn’s will was done in the presence of Ms Daisy and Orchid, his housemaid which
satisfied section 5(2) of the WA 1959 which required two or more witnesses. When Ms. Daisy
attested the will as a witness, Orchid was answering the telephone call at the living room
Similarly, in, the Dr k shanmuganathan v periasamy, the will was executed in the presence of
two witnesses and is not necessary for Orchid and Daisy to attest at the same time as long as
they both as witness attest infront of the Mr. Thorn.

Whether Orchid attestion of the will is valid accordance with Section 5(2) of Wills Act
1959?
As in the Section 5(2) of Wills Act 1959, where there must be a minimum of 2 witnesses to
attest the will. The attestion is required to authenticate the testator’s signature. The witness
need not need to sign in the presence of one another, but must do in the presence of the testator.
Moroever, based on the case Tribe v Tribe, where the testatrix was unable to turn herself in bed
to see the witness, present the will was invalid.
By applying to the above situation, Orchid attested the will but at that time Mr. Thorn was in
the washroom according to Tribe v Tribe, the testator must be physically and mentally present.
If he or she becomes insensible before both witnesses have signed like Mr. Thorn was in
washroom resulted the will is invalid. If a witness signs, the testator must either see the witness
sign or have the opportunity of doing so if he or she had chosen to look. Therfore, the
nonphysical presence of Mr.Thorn at the time of Orchid attestion resulted the will to be invalid.
Whether Orchid has the mental capacity to attest the will signed by Mr Thorn?
Under section 8 of the wills act states that will not to be invalidated by reason of incompetency
of attesting witness. Under the case of Re Gibson states that A blind man cannot be a witness.
A witness must be the one who has the faculty of hearing and seeing for the signing act is a
visible matter. Under the case of Smith v Thompson states that A will is good even though
attested by a minor, but he or she cannot be young child as they will be incapable of
understanding the importance of witnessing the will’s execution.

Under the application, Orchid is an liberate but she understands and speaks English well thus
she would understand the content of the will. this would be different if she was blind as she
cannot see the will but, in this case, she is able to see and understand and this makes valid to
attest the will. In conclusion orchid has the mental capacity to attest the will signed by Mr
Thorn.