Tutorial 4 Week 5 NORAZUAN

UNDER SECTION 5 only???

ISSUE
Whether Baba’s will has all the formalities required for a valid will.

LAW
THE ACT

S5. (1) Wills Act - No will shall be valid unless it is in writing and executed in manner
hereinafter mentioned.

(2) 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.

WRITING

(Leong Chee Kong & Anor v Tan Leng Kee) - S3 of Interpretation Act 1948 and 1967 -
Writing would include typing, printing, lithography, photography and other modes of
representing or reproducing words in a visible form. any other method of recording
information or fixing information in a form capable of being preserved. As long as it can be
preserved, the contents until all matters are disposed, fall within the meaning of WRITING.

Re Berger, The will was written in Hebrew, the question was the WRITING considered to be
decipherable. If it is it would be considered to have satisfied the requirement of the will
needing to be written. Even if the writing does not constitute a language, if decipherable it
can be used.

There are no restrictions as to the material a will must be written with or on, which has led to
some liberal interpretations. Hodson v Barnes, this case concerns the MATERIAL in which
the will was written. The will was written on an egg shell, the will was rejected but not
because it was written on an eggshell, meaning that the material it was written upon is
acceptable.

ATTESTATION

Each witness must either attest and sign the will or acknowledge their signature in the
presence of the testator. There is no requirement for the witnesses to sign in one another’s
presence.

Swinder Kaur @ Sindo Kaur D/O Fauja, The signature has to be in the actual visual
presence of 2 or more WITNESSES. A minimum of 2 witnesses who actually need to see
the Testator signing the document.

Presence of witness
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.

Brown v Skirrow – the witnesses need not sign in the presence of each other. This mean
that the 1 witness can sign on Monday in front of the testator, and another one can did the
same st on the other day without the presence of the 1st witness.

Casson v Dade – the testatrix travelled to his lawyer’s place by carriage, to sign the will.
Due to the hot day, she went back to sit in her carriage. When she was in the carriage, she
could not in fact see the witness through the window of the office, but at the very moment
when the witnesses were signing, she purposely moved to a place that could see the
Witness through the window. Testatrix would have been able to see the will being signed
through a window. The will was valid as the attestation was good.

S4 Wills Act - No will made by any person under the age of majority shall be valid.

S2 Age of Majority Act - The age of majority is 18 years old

S8 of the Wills Act - A will, will not be invalidated by reason of incompetency of attesting
witness

SIGNATURE

In the Goods of Clark – the court said that a third party SIGNED on behalf of the testator is
accepted as it has been signed in the testator's direction. The burden of proof is on the
propounder of will to prove that the will is valid.

Smith v Harris – it was held that an attesting witness can sign on behalf of the testator.

Barrett v Bem – Lewison LJ held that the court should not find that a will has been signed
by a 3 party at the direction of the testator unless there is positive and discernible rd
communication by the testator that he wishes the will to be signed on his behalf by the 3rd
party.

APPLICATION

The general rule is that the will is invalid if it is not executed according to the formalities
stated in section 5 of Wills Act 1959. There are 3 requirements under s.5 of WA 1959, which
are the will must be in writing, signature and attestation.

WRITING

As according to S5(1) of the Wills Act, no will shall be valid unless it is in writing. According
to the case of Leong Chee Kong & Anor v Tan Leng Ke, it follows S3 of Interpretation
Act 1948 and 1967 in which it states that writing would include a wide variety of methods
that are able to create words in a visible form. Any method of recording information in a form
capable of being preserved falls within the meaning of writing. According to Re Berger,
since it was never raised as an issue, the will’s writing can be considered to be decipherable
and understandable. We can see that the will Baba wrote was indeed written in a visible and
capable of being preserved form of writing, can be understood, and it was done so on a
small piece of present wrapper. The material in which the will was written is also not an
issue, as can be seen in the case of Hodson v Barnes. There are no restrictions as to the
material a will must be written with or on, which means a present wrapper is perfectly fine.

ATTESTATION

The signature must be made or acknowledged by the testator in the presence of two or more
witnesses present at the same time. This can be seen in the case of Swinder Kaur @
Sindo Kaur D/O Fauja, where the signature has to be in the actual visual presence of 2 or
more WITNESSES, who actually see the Testator signing the document. We can see from
the situation that since Agogo was the one who is signing on behalf of Baba, her signing the
will would have to be witnessed by the two witnesses Ah Kau and Ah Beng. However, Ah
Kau was so engrossed in a television programme that he did not actually see Agogo sign the
will. The will was signed in the presence of the two but one of them did not actually see the
will being signed. This would mean that the element of attestation has not been fulfilled, as
Ah Kau did not actually witness the signing of the will, and could not attest to it.

Each witness must either attest and sign the will or acknowledge their signature in the
presence of the testator. However, there is no requirement for the witnesses to sign in one
another’s presence.

In the case of Dr k shanmuganathan v periasamy, it was stated 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.
Another supporting case is the case of Brown v Skirrow. In this case, the witnesses need
not sign in the presence of each other. This means that the 1st witness can sign on Monday
in front of the testator, and another one can do the same on the other day without the
presence of the 1st witness. This can be seen from the situation where Ah Kau added his
signature, without Agogo and Ah Beng, the other witness in the room. Ah Kau did show Ah
Beng his signature and it was not necessary for both of them to attest at the same time, as
long as it was done in front of the testator, Baba. A witness can be anyone of the testator’s
choosing provided they are mentally and physically capable of attesting at the time they sign.
‘In the presence of the testator’ refers to physical and mental presence.

Other than that, in order to be a valid witness, the person also has to be of the age of
majority. According to S4 of the Wills Act, no will made by any person under the age of
majority shall be valid, and as seen under S2 Age of Majority Act, the age of majority is 18
years old. The 2 witnesses must have attained the age of majority, which is 18 years old. As
we can see Ah Beng was only 15 years old when he became witness to the will and added
his signature. However, according to S8 of the Wills Act, a will, will not be invalidated by
reason of incompetency of attesting witness, which means that even if he was under the age
of majority, the will can still be saved.

SIGNATURE
According to S5(2) of the Wills Act, 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. According to the case of In the Goods of
Clark, the court said that a third party SIGNED on behalf of the testator is accepted as it has
been signed in the testator's direction. The burden of proof is on the propounder of will to
prove that the will is valid. According to the case of Barrett v Bem, Lewison LJ held that the
court should not find that a will has been signed by a 3 party at the direction of the testator
unless there is positive and discernible rd communication by the testator that he wishes the
will to be signed on his behalf by the 3rd party. This can be seen from our situation where
Agogo signed the will on Baba’s behalf with his acknowledgement, in his presence and
direction. It was also done in the presence of the two witnesses, Ah Kau and Ah Beng,
present at the same time. However, their presence means not only in the physical sense but
also mentally, however we can see that Ah Kau was distracted when the testator’s
representative, Agogo signed the will.

Agogo's position on the other hand, is valid as a person may sign the will on the testator’s
behalf as long as it is in the testator’s presence and at their direction. The testator must also
make some positive and discernible communication or an acknowledgement that they wish
the will to be signed on their behalf by a third party. The person signing may either sign in
their own name or in the testator’s name.

Other than that, it is clear that Baba has Testamentary Capacity, he is of sound mind as he is
able to communicate clearly what he intends to do, knows what he owns and is not
delusional. He knows and approves of the creation of the will, as seen multiple times where
he gave permission to sign on his behalf. It can also be seen that it was Baba’s genuine free
choice as no sign of undue influence, fraud, or mistake can be seen from the situation.

CONCLUSION

In conclusion, according to the requirements under Section 5 of the Wills Act, which are
formalities of a valid will, the will does not fulfil the appropriate formalities required for a
valid will. One of the elements, which is the element of attestation was not fulfilled, as one
the witnesses, Ah Kau was distracted when Agogo signed the will on Baba’s behalf which
meant that he did not actually see the will being signed as thus was not present, in the
sense that he was not mentally there.