PROBATE NOTES

TERMINOLOGIES
Term Meaning

Will – s 2 Wills Act 1959

– A declaration of intention
– Disposition of property
– Or other matters
– Based on wishes
– Effective after death

Codicil – An appendix or instrument executed by a testator for modifying

or amending or adding to a will previously executed by him. It
should comply with all the formal requirements pertaining to the
execution of the original will

Testate/Testacy – The condition of a person who has left a valid will at the time
of his death

Intestate/Intestacy – The condition of a person who dies without a valid will. Such
a person is also known as an intestate.
– Section 2 PAA 1959

Estate – Refers to the property that is left by the deceased person

Testament/Testamentary disposition – Same as will. Strictly speaking, a will disposes of realty and a
testament of personalty. The word ‘testamentary’ however, refers
to wills generally

Testator/Testatrix – A person who makes a will

Beneficiary – Recipient named in the will

Personal representative – Refers to the executor and the administrator who represents
the deceased in the distribution of property after death

Trustee – A person who holds property in trust for another

Guardian – A person appointed by the testator or the court to look after a

minor child’s assets until he turns 18
Issue – Testacy/will
• Children or other lineal descendants such as grandchildren and
great-grandchildren. It does not mean all heirs, but only the
direct bloodline

– Intestacy
• Children and descendant of deceased children (Sec.3
Distribution Act 1958)

Witness – A person who attests a document or testamentary instrument

Execution – The act of properly signing legal documents and as for will,
the signing done by the testator and witnesses

Testimonium Clause e.g. ‘IN WITNESS of which I have set my hand to this my will this
day of 20.’

Attestation – The term used to describe the act of witnessing a will or

testamentary document

Attestation clause – A statement that refers to the signatures made by witnesses

e.g. ‘Signed by the testator in our presence and attested by us in
the presence of the testator and each other’

Devise – A gift by will of immovable property/realty. The recipient is

known as devisee

Legacy/Bequest – A gift by will of movable property/personalty. The recipient

is known as legatee
– WA 1959 uses the word ‘bequest’

Residue – The part of the estate which remains after the payment of:
• debts, liabilities and expenses
• devises and bequests as set out in the will

Executor/Executrix – A person who is appointed by the testator in his will to collect

assets of the deceased, to pay his debts and other liabilities and
to distribute the property in accordance with the will

Administrator/Administratrix – A person appointed by the High Court to administer the estate

of a deceased intestate
Probate – S 2 PAA 1959: ‘a grant under the seal of the court authorising
the executor/s therein named to administer the testator’s estate.’

Letters of administration – A grant issued by the HC upon application after the death of a
person intestate authorising him to distribute the estate
according to the law. (DA 1958)

TYPES OF WILL
Formal Will
– S 5 WA ‘59 : No will shall be valid unless it is in writing and executed in manner hereinafter
mentioned.
• Informal/Privileged Will
– S 26 WA ’59 - armed force through oral, writing, other dispose for him
• Foreign Will
– S 27 WA ‘59 - executed abroad

REQUIREMENTS FOR A VALID WILL

1.​ AGE
2.​ TESTAMENTARY CAPACITY
3.​ FORMALITIES

A. AGE
-​ Age of majority
-​ S4 WA 59 : will of infant invalid
-​ S2 Age of Majority Act 1971 : 18 y/o

B. TESTAMENTARY CAPACITY / ANIMUS TESTANDI

1.​ Mental capacity - S3 WA : every person of sound mind

●​ Marquis of Winchester - the testator should possess disposing memory
●​ Banks v Good Fellow : testator shall understand (nature of acts and its effect &
extend of property disposed & able to comprehend and appreciate the claims
which he want to bring effect)
●​ Re Ng Toh Piew - the second will made when extremely ill was invalid, he told he
had no son when he actually had. The first will is valid
●​ Lee Ah Sin @ Lee Sin Kee v Wasunan Tonrab & Anor - reiterate Banks test to ;
-​ must appreciate the nature and consequences of making a will;
-​ must understand the extent of his or her property;
-​ should consider any moral claims to their estate; and
-​ must not be affected by any disorder of mind or insane delusion.
●​ Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor - sufficient
if, at the time he executed the will, the testator had sufficient mental ability to
 understand that he was making a will, the effect of making the will and the
general nature and extent of his property
●​ Estate of Hew Wai Kwong - followed Banks

Burden of Proof : Barry v Butlin - party propounding will, adopted by Udham Singh v Inder Kaur
​ ​ Tyrrell v Painton - for those to propound to remove suspicions
​ ​ Dr K Shanmuganathan v Periasamy - propounder to prove will duly executed

Situations That May Affect Mental Capacity

a.​ Delusion : irrational belief, cannot be accepted by a sound person, mere delusion does
not invalidate unless it influences the testator in disposing the will
Dew v Clark - Executed a will leaving all property to nephews but nothing to his daughter
whom he believed was “ a fiend, monster and satan’s special property’. - invalid
Banks v Good - testator was competent, neither delusions had influenced

b.​ Lucid Interval : period between 2 insanity, any will made during this period = valid , no
need show final recovery
Chambers & Yatman v The Queen’s Proctor - will during lucid interval valid although next
day killed himself
Angulia v Rahimaboo - testator had been pronounced insane 4 times, during lucid
interval maid will & attested, witness claim that though physically weak he is of sound
mind = will valid

Time for determining mental capacity - at the time of executing

Insanity following will - will not affected,valid

Exception: Rule in Parker Felgate - even not mentally capable at time of execution, still valid if
capable during giving instruction to another person to write his will.
2 Conditions : (cant apply if totally insane/incapable)
​ i. Will prepared in accordance with instructions
​ ii. At time of execution, testator capable of understanding he is executing will
Battan Singh v Amirchand - did not apply because instructions given through intermediary

2. Intention to make will

How to determine ;
-​ Fact that it is in writing
-​ Signed by testator
-​ Attested by 2/more witness
-​ By looking at words used in will : Hsu Yik Chai v Hsu Yaw tang & Anor - no trust
was created since the intention of the testator was the effect of a conditional gift

3. Free choice : free from coercion/force/undue influence. BOP on person alleging

 Subramaniam V Rajaratnam - appellant argued that the son raja induced the testatrix
to execute, but failed to prove the challenge. Valid

C. FORMALITIES
S5 WA :
-​ Writing
-​ Signed by testator
-​ Attested by 2 / more witnesses
Effect of non compliance - void & Distribution Act 1958 applies

# 5(1) - WILL MUST BE IN WRITING

●​ No restriction on the material used - Re Barnes Goods
●​ Can be written by someone else - Christian v Intsiful
●​ Any language - Whiting v Turner

# 5(2) - EXECUTION OF WILL

1.​ 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;
2.​ 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
3.​ Such witnesses shall subscribe the will in the presence of the testator

I.​ Signature of testator

Leong Chee Kong - leaves mark / initial intended to represent signature to will
Eg; thumbprint, rubber stamp, assumed name, descriptive nature, initials
Re cook’s Estate - words ‘your loving mother’ = valid
Re Jenkin - signature by rubber stamp satisfactory
Re Finn - blot on will with inky thumb, illiterate testator
In the goods of Chalcraft - on verge of death only ‘E Chal’ signed (half) - valid

Who may sign? 5(2) - testator/other in his presence

Where to sign? 5(2) - at food / end. Idea is to never put in diff page, at every page

II.​ How to sign? - 5(2) must sign in presence of 2 witnesses

Re colling - will invalid, couldn't complete signature in presence of 2 witnesses
How to acknowledge? - demonstrate recognise - that’s my signature
Blake v Blake - acknowledgement not on the will itself but the sign
Re Groffman - asked friend to witness his will in coat folded, invalid
Savinder Kaur @ Sindo Kaur d/o Fauja Singh v Chamjit Singh s/o Thakar Singh - the
testator failed to acknowledge as required by s.5(2) WA. held invalid.
Attestation of will in the presence of testator
Not required to sign in presence of each other - Dr K Shanmuganathan v Periasamy
 III.​ Concept of presence - mental & physical (mentally higher than physical)
a.​ Mental presence : Brown v Skirrow - witness conscious of the act of writing by
testator
b.​ Physical / conceptual : Test - whether the person whose presence the signature
was made could have seen the other signing had he wished to so - Casson V
Dade
IV.​ Qualification of witness
-​ Mentally capable
-​ Attained age of majority
-​ Visually capable - Hudson v Parker : blind person not qualified

●​ What happens if the witness becomes incompetent at or after attesting a will?

●​ S 8 WA - Will not to be invalidated by reason of incompetency of attesting witness
●​ What if a beneficiary becomes a witness? Would that invalidate a will?
●​ S 9 WA – Gifts to an attesting witness or to wife or husband of attesting witness
to be void
●​ Creditors shall be admitted as a witness for a will charging an estate with debts. S10 -
Being a creditor does not invalidate their status as a witness
●​ Can an executor be a witness? S 11 WA – Executor not incompetent to be a witness

ALTERATION - S15 WA

“No obliteration, interlineation or other alteration made in any will after the execution thereof
shall be valid or have any effect except so far as the words or effect of the will before such
alteration shall not be apparent….”
●​ 1st limb ; no alterations, obliteration (penghapusan), interlineation (putting new words in
already existing will) shall be valid
●​ 2nd limb: except alteration that would give significance changes to the meaning, eg;
alteration to the words to be more clear may be valid
●​ No form alteration can be made after the execution of the will
●​ If made after that, it does not signify the intention of the testator.
●​ But if the testator changes? NOT ALLOWED, possible but through diff means

Alteration which is made after a will is executed is not valid EXCEPT if the words altered are no
more apparent.= Apparent means optically apparent in the face of the will itself.

Test of being apparent

◼ Whether the original words are optically apparent (readable)
◼ The words can be read by looking at the will itself. No physical interference with the
will is allowed.
 ◼ If other means, not satisfied, no physical interference allowed
Re Horsford - a strip of paper pasted over part of will, new part was written over it. Strip
could not be removed = alteration effective
Re Itter - use of infra - red photograph had not been accepted to show ori words still
apparent (need to be identified with normal eyes)

◼ “…unless such alteration shall be executed in like manner as hereinbefore is required

for the execution of a will..”
-​ Even though words before alteration are still apparent, it would still be valid if it's
executed in the same manner as executing a will.
-​ Signed by testator and attested by 2/more witnesses
-​ Need to comply with formalities
​ Re Choo Kim Kiew - made alteration, put his initial & date but no witness = invalid
​ Re White - alteration invalid, non compliance with formalities

THUS, For a valid alteration-

1. The original words must no longer be apparent; or
2. The alteration is executed in the same manner as executing a will

REVOCATION

a) Automatic Revocation/Revocation by Operation of Law

b) Voluntary Revocation

A.​ Automatic/ involuntary revocation

-​ By marriage
-​ S12 WA : every will be revoked by marriage (your previous will)
-​ Marriage must be valid
Re Lee Kim Chye, deceased : had married & made the will and married again.
The marriage with the second wife revoked the previous will.
Re Wan Kee Cheong : subsequent marriages revoked the wills because valid
under chinese customs and solemnised before LRA
-​ Voidable marriages = revokes will, Re Roberts : argued consent in valid due to lack
mental capacity during marriage, held voidable and it automatically revoked will
Grounds : S70 LRA (not consummated, no consent, venereal disease, pregnant)
-​ Void marriage does not revoke will because not valid marriage at the beginning
Mette v Mette : made a will, marries deceased wife’s half sister, marriage not recognised
= will not revoke
Grounds : S69 LRA (monogamous, age, kinship, biologically male & female)

EXCEPTION S12:

A will is not automatically revoked upon marriage in certain situations:

1) Power of appointment​
A will is not revoked if it is made under a power of appointment, where the appointed property
would not otherwise pass to the testator’s heirs, executor, administrator, or persons entitled on
intestacy. exception protects wills dealing with property that the testator only has control over by
permission of a prior legal arrangement, not property they fully own in the usual sense.

2) Will made in contemplation of marriage​

A will is not revoked if it is clearly made in contemplation of a specific marriage that is later
solemnised. The contemplation must be of a particular marriage, not marriage in general.

●​ Sallis v Jones (1936): The will stated “made in contemplation of marriage” generally. The
court held it was revoked upon marriage because it was not tied to a specific marriage.
●​ Pilot v Gainfort [1931]: The will referred to “my future wife” and was made while living
with her. The court held it was not revoked as it was clearly made in contemplation of
that marriage.
●​ Re Grey’s Estate: Although the will referred to the future spouse, the court held it was
revoked upon marriage because there was no clear intention at the time the will was
made to marry that person.

B. Voluntary Revocation

S14 WA :

-​ By another will executed in manner of some writing declaring an intention to revoke and
executed in same manner required
-​ By burning, tearing or destroying by testator/ by some person in his presence with
intention of revoking

Methods (all by testator) :

●​ By a new will or codicil executed following a previous will :

-​ S5 WA - mode of execution
-​ Additional paper
-​ The prior will revoked with inconsistent / repetitive part
Re Howard : The testator made an earlier will in favour of his son, then later
executed two inconsistent wills on the same day (one for his son and one for his
wife), both with revocation clauses, but the order of execution was unclear. Held:
Both later wills were effective to revoke the earlier will, but neither could be
admitted to probate due to inconsistency and uncertainty over which was
executed first. = invalid

●​ By some writing declaring an intention to revoke:

-​ letter/memo
-​ Signed by testator & attested by 2 witnesses
Re Durance : testator sent a letter attested by two witnesses to his brother asking
him to collect the will and to burn it. = valid revocation
 Re Mana Seena Veran : after the testator's death, 2 letters allegedly written by
him to revoke will found but no attestation. Held = mere intention not enough
must follow means

​
●​ By actual destruction burning and tearing and other similar acts :
-​ Physical destruction by himself / some other in his presence
Elements : 1. Act of destruction 2. Intention to revoke by actual destruction
-​ Must be an animus revocandi intention to revoke)
Hobbs v knight : cut ot his signature at foot of will = valid, similar to tearing
Cheese v Lovejoy : The testator tried to revoke his will by crossing parts of it,
writing “revoked” on the back, and throwing it into waste paper, while also
declaring it revoked in front of the housekeeper & maid. However, the document
was later retrieved and still largely intact. Held: The will was not revoked
because there was no sufficient physical destruction. Both intention to
revoke and an act of destruction are required.
Key principle: There must be both intention and destruction; neither alone is
sufficient.
-​ Destruction W/O intention : Brunt v Brunt: testator with mental illness tore will into
pieces = not revoked
-​ Actual destruction by 3rd party ; must be of the direction of testator AND in his
presence
Re Dadd’s Goods : wished to revoke will, executor went to kitchen and burnt it
there = not revoked because no presence

REVIVAL
S16(1) : Revival of will by re- execution / codicil in manner required and showing intention to
revive
Revival of will :
-​ Re execution
-​ Codicil

​ Elements :
a. Formal act of revival
b. Intention that the revived instrument should have testamentary effect
c. Existence of document to be revived

Re Wan Kee Cheong - wife (executrix) pre - deceased testator, he remarried and made 2
codicils “ i confirm my said will..” = codicils revived will, immaterial to know that will revoked by
marriage
In The Goods of Davies - wrote on envelope that the woman is now his wife + writing duly
signed & attested. writing on the envelope was codicil = revived
 -​ A will destroyed by actual destruction under s14 = cannot be revised
-​ Element: existence of the revived document

16(2) : revived will is effective as if it has never been revoked & a revived will operates as it
executed at that time

CIRCUMSTANCES OF FAILURE OF GIFTS

The act of distribution : gift/pemberian
Failure of gift : in relation of distribution of estate/asset to the beneficiaries
Effect of failure : GIFT FAILS, simply fall into residue

1.​ Where the beneficiary/ies or his/her spouse is the attesting witness – Sec 9 of WA
-​ S9. Gifts to an attesting witness or to wife or husband of attesting witness to be
void
-​ To avoid conflict of interest
Thorpe v Bestwick : will to an unmarried woman , of of attesting witness married
her after execution of will. Gift remained effective because witness not her
husband at the time
Kulsome Bee : pff were devisee & legatees under will, signature found on will. If
proven to be attesting witness, gift = fail
-​ Under english law : attestation disregarded if will is executed without
plaintiff signs = if more 2 witness and at least 2 not beneficiaries = valid

2.​ Where there is uncertainty in the will

-​ Subject matter uncertain / ambiguous
-​ Ambiguity in terms, cant determine what testator is talking about
Peck v Holsey : made gift by referring “some of my best linen” = gift failed as to
uncertainty
Asten v Asten : testator owned 4 house, made separate gifts to each four sons,
failed because using similar terms (newly built houses) for each gift = uncertainty
of subject matter
-​ A gift will also fail, if uncertainty is the object of will. Eg; recipient
Re Stephenson : the gift failed for uncertainty as impossible to ascertain which
son intenden, all three sons had surname of Bamber & each had left children

3.​ Where the beneficiary predeceases the testator (Lapse)

A gift in a will lapses if the beneficiary dies before the testator.
●​ Re Whorwood (1887): A gift of a silver cup to Lord Sherborne failed because he had
already died → gift lapsed.

Exception: S25 WA
If a gift is made to a child or issue, and that beneficiary dies before the testator, the gift does not
lapse provided the beneficiary leaves a living issue at the testator’s death.
 ●​ The gift is treated as if the pre-deceased beneficiary survived the testator briefly, and it
goes to the beneficiary’s estate (then to their heirs).
●​ Re Basioli [1953]: Applied similar rule; court held the gift did not lapse as law aims to
preserve benefit within the family.

Limitation (Contrary intention) : This exception does not apply if the will shows a contrary
intention. Re Horton [1979]: Gift to “surviving children” → word “surviving” showed clear
intention to exclude deceased child’s issue → gift failed.

Simultaneous death?
Under s 2 Presumption of Survivorship Act 1950:
●​ Younger person is presumed to survive the elder.
●​ If beneficiary is older → presumed to die first → gift fails.
●​ If beneficiary is younger → presumed to survive → gift may take effect.

4.​ Where the subject matters of the will cease to exist on the death of the testator
(Ademption)
-​ Ademption occurs when the specific gift in a will no longer exists or is no longer
owned by the testator at the time of death, so the gift fails.
●​ Re Sikes (1927): The testatrix left “my piano”, but later sold it and bought another. Held:
the gift referred only to the original piano. Since it was sold, the gift was adeemed
(failed).
●​ Re Slater [1907]: The testator left a benefit from shares in a company, but the company
was later taken over before his death. Held: the subject matter no longer existed in that
form, so the gift was adeemed and failed.
5.​ Where there is conditional gift and failure of that condition
-​ Hsu Yik Chai v. Hsu Yaw Tang : The testator left land to his brothers and wife “to
assist them with the expenses of bringing up and educating my children until they
became mature.” One child (appellant) was adopted by one respondent but later
left to live with his mother. The land was eventually transferred to the
respondents.
Held: The will created a conditional gift. The brothers had fulfilled the condition of
supporting and educating the children. Therefore, the respondents (but not the
widow) were entitled to retain the land.

6.​ Where the beneficiary disclaims the gift in the will

7.​ When the beneficiary commits act contrary to public policy and law
-​ Re Giles : a woman killed husband, disqualifies from taking benefit under will /
intestacy of husband
INTESTATE SUCCESSION
-​ Counterpart of testate
-​ Cases in relation of inheritance without presence of will (no will/void)
-​ Distribution Act 1958 : provides methods of distribution
S6 : elaborates on the entitled heirs & portions

Grounds of inheritance :

a.​ Blood relationship/Adoption

1.​ Issue/s : s3 DA

●​ “Children & descendant of deceased children”

●​ ‘Child’ - a legitimate child and includes any child born from polygamous marriage
solemnised prior to 1st March 1982
●​ Legitimate child : S112 Evidence Act 1950 - born during wedlock, outside = illegitimate
●​ An illegitimate child has no ground of inheritance to inherit from the biological father
and vice versa. He or she can only inherit from the mother IF the mother has no
legitimate child : s 11(1) of the Legitimacy Act 1961.
●​ Being legitimated : s4 LA 1961 = entitled to inherit intestate (can be illegitimate by
subsequent marriage of mother with biological father

Chan Tai Ern Bermillo & Anor v Ketua Pengarah Pendaftaran Negara: an illegitimate child born
outside Malaysia to a Malaysian biological father and a non-Malaysian mother is not
entitled to become a Malaysian citizen

Lew Yee Hong @ Liew Yee Hong v Ketua Setiausaha KDN [2020] 8 MLJ 62: The applicant’s
parents registered their marriage 14 months after his birth. The court held that this legitimated
the child, and therefore no further High Court declaration was needed to confirm legitimacy.

Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583
High Court & Court of Appeal:​
A child born from an unregistered Chinese customary marriage (not registered under LRMDA
1976) was held to be illegitimate and not entitled to inherit under the Distribution Act 1958.

Federal Court:​
Held that s 6 Distribution Act 1958 uses the term “issue”, not “child”, and does not expressly
require legitimacy. Since “issue” and “child” are separately defined, it was wrong to restrict
“issue” to only legitimate children. Therefore, the child could inherit under intestacy

-​ Adoption : s3 DA includes a child adopted under Adoption Act 1952 and not registered
under the Registration of Adoption Act 1952.
-​ Yeap Chan Aik v Yeap Chan Hoe : DA 1958 only acknowledges an adoption of a child
pursuant to the Adoption Act 1952 as a ‘child’ for the purpose of receiving estate.
-​
 2.​ Parent/s : S3 DA
●​ natural mother or father of a child
●​ Or the lawful mother or father of a child under the Adoption Act 1952

b.​ Marriage
-​ Spouse (only valid marriage)
-​ If void, spouse not entitled to inherit : s6(2) LRA
-​ Any child of void marriage = not legitimate = not entitled to inherit on intestacy of
father (can inherit through will)

Simultaneous Death

-​ To inherit under a will or intestacy, a beneficiary must survive the deceased (praepositus)
-​ Where two or more persons die at the same time and it is uncertain who died first, the
Presumption of Survivorship Act 1950 applies.
●​ s 2 PSA 1950: Deaths are presumed to occur in order of seniority. The younger is
deemed to have survived the elder, so property is distributed accordingly.

Limitation:

●​ The PSA 1950 does not apply between husband and wife in intestacy situations.
●​ s 6(3) Distribution Act 1958: If spouses die in uncertain order, the spouse is deemed not
to have survived the intestate.

Inheritance (Family Provision) Act 1971: This Act allows the court to intervene where a
deceased person’s estate (by will or intestacy) does not make reasonable financial provision for
dependants.

●​ s 3: If the court finds the distribution unreasonable for maintenance of dependants, it

may order reasonable provision from the estate
Intestacy Rules (s 6(1) Distribution Act 1958)

Situation Distribution of Estate

Spouse only Spouse takes whole estate

Spouse + Spouse = ½, Parent(s) = ½

Parent(s)

Issue only Issue takes whole estate

Parent(s) only Parent(s) take whole estate

Spouse + Issue Spouse = 1/3, Issue = 2/3

Issue + Parent(s) Issue = 2/3, Parent(s) = 1/3

Spouse + Issue + Spouse = 1/4, Issue = 1/2, Parent(s) = 1/4

Parent(s)

Intestacy Distribution Examples (RM100,000 Estate)

Situation Distribution Example (RM)
Rule

Spouse only Spouse takes Wife: RM100,000

whole estate

Spouse + Parent(s) ½+½ Wife: RM50,000; Parents:

RM50,000

Issue only Issue takes Children: RM100,000

whole estate

Parent(s) only Parents take Parents: RM100,000

whole estate

Spouse + Issue 1/3 + 2/3 Wife: RM33,333; Children:

RM66,667

Issue + Parent(s) 2/3 + 1/3 Children: RM66,667;

Parents: RM33,333

Spouse + Issue + 1/4 + 1/2 + 1/4 Wife: RM25,000; Children:

Parent(s) RM50,000; Parents:
RM25,000