JUN 2019

PART B

QUESTION 1

QUESTION C (III)

QUESTION

Eddy died in a road accident in July 2016 and leaves behind his daughter, Betty

ANSWER

Issue

Whether Eddy is entitle for the will of a specific gift made by Dato Mark

Law

Specific legacy is defined as a specific gift of money or personal property.

This can be refer to the case of Castle v Fox. The case stated that however, if the words which he
uses are suited to pass property acquired by him after the date of the will, such property will pass.
Example given is where a testator devises “ all my houses in the same street, the newly acquired
houses will pass under the devise.

Gift of specific or particular item or property can be easily identified and distinguished from all other
property in estate. Example is “ I leave my blue Kancil to my niece Lyna.” Testator’s intention is that
the blue Kancil should pass to niece.

Specific is the of “my” and “the” indicates specific (possessive words). For an example, “I give to E
the gold bracelet which my mother gave me on my 30th birthday.

There are two characteristics of specific gift which are (i) It forms a specified part of testator’s estate
at the time of death and (ii) The specified part can be severed from the rest of the estate.

The condition is as long as beneficiary survives testator, the gift would not lapse. Doctrine of lapse
specified that a beneficiary should survive the testator in order to take the benefit, if not the gift will
lapse.

However, there is an exception where stated that a gift to a predeceased person will not lapse if he
leaves behind an issue who will then be the donee of the gift

Application

Specific legacy is defined as a specific gift of money or personal property.

As mentioned in the case of Castle v Fox, if the property is acquired by the testator after the date of
will, thus the newly acquired property is not consider as one of the item under the will.

Gift of specific or particular item or property can be easily identified and distinguished from all other
property in estate. This is due to certain criteria used in the written of the will comprises of “my” and
“the”. This two words indicates that the item left by the testator is the specific or particular item. As
mentioned in the fact of the question, “ my rolex watch to my brother, Eddy”. Thus, this cleary
indicate that it is specific property by the usage of word “my”.
However, there are two characteristic of specific gift which the first one is it forms a specified part of
the testator’s estate at the time of death. Since there is no additional fact mentioned regarding this
characteristic, thus I strongly belief that the specific gift form as part of testator’s estate at the time
of Dato Mark’s death.

The second characteristic is the specified part can be severed from the rest of the estate. Since the
gift is a rolex watch, thus the property can stand alone and be severe.

Both characteristic of specific gift specified by the specific gift given to Eddy by Dato Mark.

However, the issues arrived when the beneficiary has not survived the testator. As mentioned in the
fact of the question, Dato Mark died of a heart attack early 2017, but Eddy died earlier than Dato
Mark which is on July 2016. Thus, the beneficiary has not survive the testator in order to take the
benefit. Even though Eddy had left behind his daughter, Betty. But, Betty is not applicable since his
name has not been spelled out as one of the beneficiary. Thus, it can be concluded that the gift will
lapse.

Conclusion

Since the beneficiary, Eddy has not survived the testator in order to take the benefit, thus the gift is
lapse.

QUESTION D

QUESTION

Datin Mary converted to Islam last month. Is she entitled to the deceased’s estate? Explain briefly to
Jack on the basic rule of the Islamic law of inheritance.

ANSWER

ISSUE

Whether Datin Mary entitled to the deceased estate since she has been converted to Islam.

LAW

Muslim Wills (Selangor) Enactment 1999 in Section 2 stated that wasiyyah (will) is an ‘iqrar of a
person made during his lifetime with respect to his property.

Rules regarding wills for Muslim under Islamic law are (i) Non muslim are excluded from inheritance,
(ii) testamentary disposition may not exceed one third and (iii) a gift nominating a beneficiary does
not confer on a nominee to take all beneficially.

Non muslim are excluded from inheritance can be mentioned in the case of Re Timah bt Abdullah
where the non muslim next of kin of a deceased Japanese woman who had converted to Islam could
not inherit the property of the deceased.

The general principle of testamentary disposition is it may not exceed 1/3 of the estate of the
deceased. The portion of property that can be bequeathed by a testator under Islamic law is only 1/3
of the total assets available at the time of death, after the subtraction of the amount used for the
testator’s funeral expenses and settlement of debts (if any).
As mentioned in Hadith al-Bukhari, the messenger said to Sa’ad bin Abi Waqqas that he may give
only 1/3 of his property to charity as it is better to leave his offspring wealthy than to leave them
asking for the help of others.

As mentioned in the case of Shaikh Abdul Latif v Shaik Elias Bux, under Muslim law, a testator has
power to dispose of not more than 1/3 of the property belonging to him at the time of his death,
and the remaining 2/3 must descend in fixed proportions to those declared by Muslim law to their
heirs.

In the case of Amanullah Hj Ali v Jamilah, a testamentary disposition purporting to dispose more
than 1/3 of the testator’s estate was deemed as invalid. It was held that the testator’s disposition is
invalid if it purports to dispose more than 1/3 of his estate and the testator’s disposition is invalid if
it purports to benefit any of their heirs above his share as prescribed by the Muslim law of
inheritance.

In the case of Siti bt Yatim v Mohd Noor Bujali, a man died leaving a will and left all his share to his
son and the wife was completely deprived of the share. However, the court held that the will is not
valid and that the wife is entitled to her share as stated in Islamic law.

A will of Muslim which attempts to prefer one heir by giving him a larger of the estate than he is
entitled to by a Muslim law is wholly invalid to such bequest without the consent of the heirs.

The third rules is a gift nominating a beneficiary does not confer on a nominee to take all
beneficially. This has been mentioned in the case of Re Ismail Rentah where the letter of nomination
of the deceased’s daughter to receive the deceased share of interest as a member of the Malay Civil
Servant’s Co-operative Society was governed by the Muslim law on wills and as such was bad and
such bequest was bad as it was made to single heir when the others did not consented to. Such
bequest was confirmed in a fatwa or ruling issued by the National Council of Muslim Religious
Affairs.

APPLICATION

The first rules is regarding the non muslim are excluded from inheritance. This has been mentioned
in the case of Re Timah bt Abdullah. This case is regarding the non muslim next of kin of a deceased
Japanese woman who had converted to Islam could not inherit the property of deceased. In applying
to the fact of the question, it has been mentioned that Datin Mary is the wife of the deceased, Dato
Mark. However, Datin Mary had converted to Islam last month. As mention in the will, it has been
stated that the rest of Dato Mark estate will be given to his wife, Datin Mary. By referring to the case
of Timah bt Abdullah, Datin Mary could not inherit the property of the deceased since she has been
converted to Islam.

CONCLUSION

Datin Mary could not inherit the property of the deceased since she has been converted to Islam.