Assignment 1-WILL - This is an example of how to write a will in Malaysia PDF

Preview

Summary

LAW 542: NON-CONTENTIOUS LEGAL MATTERSPROBATE AND ADMINISTRATIONASSIGNMENT 1: WILLSPREPARED FOR:DR FARIDAH BINTI HUSSAINPREPARED BY:DATE OF SUBMISSION:TABLE OF CONTENTS List of Cases NO. SUBJECTS PAGE Last Will and Testament Introduction What is a Will Requirements for a Valid Will Who Can Make a Wi...

Description

LAW 542: NON-CONTENTIOUS LEGAL MATTERS PROBATE AND ADMINISTRATION

ASSIGNMENT 1: WILLS

PREPARED FOR: DR FARIDAH BINTI HUSSAIN

PREPARED BY:

DATE OF SUBMISSION:

0

TABLE OF CONTENTS

NO.

SUBJECTS

PAGE

1.

List of Cases

2

2.

Last Will and Testament

3

3.

Introduction

8

4.

What is a Will

9

5.

Requirements for a Valid Will

10

6.

Who Can Make a Will

16

7.

How a Will Can Be Revoked

18

8.

Types of Properties That Can Be Listed in a Will

21

9.

Who Can Be Named as Beneficiary

23

10.

References

26

1

LIST OF CASES Adong Bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (1997) 1 MLJ 418 ........….………………………. 22 Banks v Goodfellow (1870) LQ5 QB 549 ………………………………………………………………………………. 11 B Adams (1872) 2 LR P & D 367……………………………………………………………………………………….13 Cooke v Cooke (1866) LR 1 PD 241 ……………………………………………………………………………………. 9 Chambers and Yatman v The Queen’s Proctor (1840) 2 Curt 514 ……………………………………………….. 13 Cheese v Lovejoy (1877) 2 PD 251 …………………………………………………………………………………… 20 Chenna Gounder a/l Kandasamy v Angamah a/p Sunappan [2017] 10 MLJ 387 ……………………………… 14 Choo Mooi Kooi @ Choo Soo Yin v. Choo Choon Jin @ Jimmy Choo (2012) 2 MLJ 691 ………………….... 11 David Wee Eng Siew (Administrator to the estate of Lim Eang Tee, deceased) v Lim Lean Seng & Anor (as executors and trustees of the estate of Lim Eow Thoon, deceased) [2018] Supp MLJ 50…………………. 23 Dr. K. Shanmuganathan (suing by his attorney Dr A. Ruraviappan) v. Periasamy s/o Sithambaram Pilai (1994) 2 CLJ 225 …………………………………………………………………………………………………………13 In the Estate of Bulloch (1968) NI 96 ……………………………………………………………………………….... 15 Estate of Hew Wai Kwong, Deceased; Sarah Abdullah (Petitioner) [2000] 5 CLJ 604 ………………………. 15 Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng and Ors (2001) 2 MLJ 70 …………………………………… 16 Gan Yook Chin & Anor v Lee Ing Chin & Ors (2005) 2 MLJ 1 …………………………………………………… 11 Goods of Chalcraft (1948) P 222 ………………………………………………………………………………………15 Goods of Robinson (1867) ………………………………………………………………………………………………9 Gurmit Singh a/l Lal Singh v Sarjit Singh a/l Lal Singh & Anor (2018) MLJU 1407 ………………………….. 26 Harjinder Kaur A/P Sham Singh & Anor v Balvinder Singh A/L Sham Singh & Ors and another appeal (2017) MLJU 1461 ……………………………………………………………………………………………………… 24 Hodson v Barnes (1926) 43 TLR 71 …………………………………………………………………………………...13 Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and Another appeal (2005) 6 MLJ 540 (CA) ………… 14 Khaw Poh Chuan v Ng Gaik Peng (1996) 1 MLJ 761 (FC) ………………………………………………………..25 Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 (CA) …………………….. 16 Leong Wee Shing v Chai Siew Yin (2000) 5 MLJ 162 ……………………………………………………………… 17 Murray (1963) CLY 3621 ………………………………………………………………………………………………. 13 Omar Ali bin Mohd v Syed Jafaralsadeg bin Abdulkadir Alhadad (1995) 3 SLR 388 …………………………..23 Re Gibson [1949] P 434 …………………………………………………………………………………………………14 Re Hee Chun Meng (1989) 2 MLJ 310 ……………………………………………………………………………….. 23 Re Lee Kim Chye (decd) [1936] MLJ 49 …………………………………………………………………………….. 19 Re Mana Seena Veeran Decd; Rajoo S/O Magalee Karupiah & Anor v Hussain S/O Ms Veeran (1976) 1 MLJ 1 ……………………………………………………………………………………………………………………... 20 Re Moore [1892] P 378 ………………………………………………………………………………………………….13 Re Wan Kee Cheong, Deceased (1975) 2 MLJ 152 ………………………………………………………………….19 Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) & Anor (2009) MLJU 657 …………………….12 Subramaniam v Rajaratnam [1957] MLJ 11 (CA) ………………………………………………………………….. 16 Thiang Kai Goh v Yee Bee Eng & Ors (2005) 1 MLJ 431 …………………………………………………………. 17 Tho Yow Pew & Anor v Chua Kooi Hean (2001) 5 MLJ 578 ……………………………………………………… 12 Udham Singh v Indar Kaur (1971) 2 MLJ 263 ……………………………………………………………………… 12

LAST WILL AND TESTAMENT

2

THIS IS THE LAST WILL AND TESTAMENT of me, Sarah Ava Richmond (NRIC. NO. 680917-12-5967), of No. 1 Villa Bukit Tunku, Off Jalan Dato, Bukit Tunku, in the District of Kuala Lumpur, a Malaysian citizen of full age and capacity and being of sound mind hereby declare that this Will dated 12 March 2020 to be my Last Will and Testament. I made this Will voluntarily without any duress or undue influence by any other person.

FIRST I hereby revoked all Wills at any time heretofore made by me.

SECOND I appoint my sister Mona Lisa Andrew (NRIC. No. 730707-12-5978) of No. 33-3, Jalan Puteri 2/6, Bandar Puteri, 47100 Puchong, in the State of Selangor, to be the Executor of this Will but if she shall predecease me or be otherwise unwilling or unable to act, I hereby appoint Sarah Ahmad (NRIC. No. 780101-24-6789) a Solicitor of No. 521 of Jalan Maarof Bangsar, 53500 Kuala Lumpur to be the substitute Executor of this Will, and I declared and direct that the said Sarah Ahmad shall be entitled to charge on behalf of herself or her firm the usual fees and to receive the usual remuneration for professional work in relation to this Will or the property comprised therein.

I grant to my Executor full power to do everything in administering my estate that said that Executor deems to be for the best interest of my beneficiaries.

THIRD

I direct that all my debts, and expenses of my last illness, funeral and burial, and testamentary expenses be paid as soon after my death as may be reasonably convenient, and I hereby authorize my Executor, hereinafter appointed, to settle and discharge, in her or his absolute discretion, any claims made against my estate.

3

FOURTH I bequeath the following legacies:

1)

I give to my son, Rafael Noah Richmond (NRIC. No. 850903-24-6887) a Lamborghini Aventador which registered no.: VP22.

I direct that if it is in my possession under the terms of a hire purchase or similar agreement my Trustee shall take

such steps as they consider practical to vest

ownership of the car in Rafael Noah Smith at the expense of the residue of my estate.

2)

To my daughter, Elyza Sophia Richmond (NRIC. No. 900921-24-5882) a Cartier Ballon Bleu Baguette Diamond Dial 18kt White Gold Women’s Watch who shall be the sole beneficiary to this property.

3)

To my daughter, Natasha Aubrey Richmond (NRIC 950101-24-6776) an artwork of Concetto Spaziale, Attese by Lucio Fontano.

4)

I devise and bequeath all monies in HSBC Bank Malaysia Berhad (HSBC Bank) of No. 2, Leboh Ampang, Peti Surat 10244, 50912 Kuala Lumpur (Account No. 890765651128) amount to RM 38,000,000. shall be divided among my lawful children and people as below:

i)

Subject thereto, to my son Rafael Noah Richmond (NRIC. No. 850903-246887), 30% out of RM38,000,000 in HSBC Bank account which amounted to RM11,400,000.

ii)

Subject thereto, to my daughter Elyza Sophia Richmond (NRIC. No. 90092124-5882), 40% out of RM38,000,000 in HSBC Bank account which amounted to RM15,200,000.

4

iii)

Subject thereto, to my daughter Natasha Aubrey Richmond (NRIC 950101-246776), 25% out of RM38,000,000 in HSBC Bank account which amounted to RM9,500,000.

iv)

Subject thereto, to my butler, Tony Rono Martin (NRIC. No. 680412-05-8783) of RM1,000,000 from the HSBC Bank account, in recognition of the faithful service which he has long rendered to my family.

v)

Subject thereto, to ten of my servants who has been in my service for a period of not less than one year and who remains in my service on the day of my death, RM200,000 from the HSBC account.

vi)

Subject thereto, to Shelter Home for Children, the remaining amount in the HSBC Bank account which amounted to RM900,000.

5)

My residential house known as No. 1 Villa Bukit Tunku, Off Jalan Dato, Bukit Tunku, held under H.S.D 250, PT 712, in the district of Kuala Lumpur, in the state of Wilayah Persekutuan Kuala Lumpur measuring an area 27500 square feet to all my lawful children Rafael Noah Richmond (NRIC. No. 850903-24-6887), Elyza Sophia Richmond (NRIC. No. 900921-24-5882), and Natasha Aubrey Richmond (NRIC 950101-24-6776).

6)

To my gardener, Abdul Rahim bin Minang (NRIC. No. 610202-05-5793) , I devise the freehold of the cottage upon my estate which he has inhabited for many years, with the one acre of land appurtenant thereto.

7)

A Freehold Agriculture land of 32 acres with the land details as follows: H.S.(D) 418, PT. 558 in the district of Kelang, in the state of Selangor to my daughter Elyza Sophia Richmond (NRIC. No. 900921-24-5882).

5

8)

A Patent property with its Patent Registered No. MY 132778, date of patent 20 September, 2016, Patent Title: Solar Collecting Device, to my daughter Natasha Aubrey Richmond (NRIC 950101-24-6776), which is subject to patent annual fee governed under Malaysia Patents Act 1983.

9)

A Stock under Malayan Banking Berhad Malaysia, bearing Certification No. C 09833 to my son Rafael Noah Richmond (NRIC. No. 850903-24-6887) who will be the registered holder of the said Shares, which shares of the capital stock transferable only on the book of Corporation by the holder certificate properly endorsed.

FIFTH I give, devise and bequeath the residue of my estate to which I am or may hereafter become entitled, in possession or reversion, to National Cancer Society of Malaysia address at No. 66, Jalan Raja Muda Abdul Aziz, Kampung Baru, 50300 Kuala Lumpur absolutely.

IN WITNESS WHEREOF, I have hereunto set my hand on this 12th day of March, 2020.

SIGNED by Sarah Ava Richmond

)

(NRIC. NO. 680917-12-5967) as her last

)

Last Will and Testament in the presence

)

Of us both present at the same time and

)

Who at her request and in her presence

)

-----------------------------------------

And in the presence of each other have

)

Sarah Ava Richmond

Hereto subscribed our names as Witnesses.

)

(NRIC. NO. 680917-12-5967)

---------------------------------------

-----------------------------------------6

First Witness

Second Witness

Name: Melissa Tham

Name: Carmen Foo

Position: Advocate & Solicitor

Position: Solicitor’s Clerk

NRIC No.: 791201-05-6756

NRIC No.: 860729-11-5098

7

INTRODUCTION A will is a written instrument by which a person signifies his wishes as to the devolution of his property after his death.1 It must be in writing, but no particular form of document or of words it is necessary; it need not be in the English language or in the testator’s own handwriting.2 A will in the testator’s own handwriting is called a “holograph will”. 3 Any instrument properly executed may be admitted to probate as a will, provided (1) that it was capable of being revoked during the testator’s lifetime, and (2) that it was executed animo testandi, i.e. with the intention that it should come into operation only after death.4 In Cooke v. Cooke5, J. left a duly executed paper in these terms: “I wish my sister to have my bank book for her own use”. It was held, the paper was testamentary, the court being satisfied on the evidence that the deceased at the time of its execution intended it to take effect after her death, and not as a present deed of gift. In the Goods of Robinson6, R. left an agreement for seven years lease. The agreement was duly executed and attested by two witnesses, and contained a provision that in the event of the lessor’s death the rent was to be distributed among his grandchildren. It was held that, as no part of the agreement was revocable, and as it came into operation immediately upon its execution, it was not entitled to be admitted to probate as testamentary paper.

1 Executorship Law and Accounts, Twenty-first edition by K.S. Carmichael, F.C.A., F.T.I.I., p 5 2 Ibid, p 5 3 Executors and Administrators, N.E. Mustoe, M.A., LL.B of Gray’s Inn, Barrister-at-Law, p 10 4 Ibid, p 10 5 Cooke v Cooke (1866) LR 1 PD 241 6 Goods of Robinson (1867)

8

QUESTION 1: WHAT IS A WILL A will is a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil, and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child.7

Making a Will enables the testator to appoint an executor, thus avoiding any possible hiatus between death and commencement of administration.8 Direction can be given as to funeral arrangements. Business interests can be sensibly disposed of and gifts made to non-relatives and charities.9

The term ‘Will’, incidentally applies to any testamentary document, but it is more usual to describe the primary document as the Will and the secondary one as a codicil. 10 A codicil is an instrument made by the testator subsequently to the Will, to explain or alter or to add to, or subtract from, the disposition in the original Will.11 Collectively at the date all such documents are ‘the Will’.12

7 Section 2 of the Wills Act 1959 (Act 346) 8 Practical Trust Administration, Michael Sladen, LL.B, F.I.B. of Lincoln’s Inn Barrister, p 3 9 Ibid, p 3 10 Ibid, p 3 11 Executorship Law and Accounts, K.S. Carmichael, F.C.A., F.T.I.I, p 14 12 Michael Sladen, Ob Citer, p 3

9

QUESTION 2: REQUIREMENTS FOR A VALID WILL There are three requirements for a valid Will. The testator attains the age of majority, namely 18 years old. In Section 4 of Wills Act 1959 stated that no Will made by any person under the age of majority shall be valid. Other requirements are testamentary capacity i.e. mental capacity13, intention and free choice of making such a will, and mode of execution of Will as prescribe by Section 5 of the Wills Act 1959. In the case of Banks v. Goodfellow14 the principle to be applied in determining the capacity of testator in making a valid will is “he must be able to understand the nature of the act and its effects and the extent of the property of which he is disposing. He must be able to comprehend and appreciate the claims to which he ought to give effect and the manner in which his property is to be distributed. In Choo Mooi Kooi @ Choo Soo Yin v. Choo Choon Jin @ Jimmy Choo 15, burden of proving testamentary capacity and due execution was on the defendant, the executor and sole beneficiary. In the case of Gan Yook Chin & Anor v. Lee Ing Chin & Ors16, the Federal Court dismissed the appeal and affirmed the principle that the burden of proof of testamentary capacity and due execution lies on the propounder of the will, while the burden of proof of extraneous vitiating element (such as undue influence, fraud or forgery) lies on the challenger of the will.

Persons of unsound mind means any person, not a minor, who, not having been found to be a mentally disordered person, is incapable from infirmity of mind managing his own affairs. 17 Mental ill health is not the only possible reason for lack of capacity. 18 A testator who is either blind or illiterate is handicapped by his disability; in these circumstances, a will is not admitted to probate until the registrar has satisfied himself that the testator did have a proper knowledge of 13 Section 3, Wills Act 1959 14 Banks v Goodfellow (1870) LQ5 QB 549 15 Choo Mooi Kooi @ Choo Soo Yin v. Choo Choon Jin @ Jimmy Choo (2012) 2 MLJ 691 16 Gan Yook Chin & Anor v Lee Ing Chin & Ors (2005) 2 MLJ 1 17 Section 3, Trustee Act 1949 (Act 208) (Revised 1978) 18 Practical Trust Administration, Michael Sladen LL.B, F.I.B., p 4

10

the contents of the will at the time the will was executed. 19 It is therefore desirable for the will to end with an attestation clause which states that it was read over to the testator and that he appeared to understand it.20 In Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) & Anor,21 there was no dispute that the deceased was unwell, but the unchallenged evidence of the deceased’s doctor showed that the medication given to the deceased did not affect his mental capacity to make a will. As such, the Court of Appeal found that there was a ‘clear misappreciation of evidence ‘relating to the deceased’s mental condition at the time of the execution of the said will. The court observed that the two attesting witnesses also found the deceased to be normal at the time when he executed the said will, and that the unchallenged evidence was that the deceased was of sound mind, memory and understanding and that he approved and had knowledge of the contents of the said will.

The insanity of the testator at the time of execution will prevent the will from being valid for want a proper animus testandi, or “full and free intention to make a will” is an essential quality in every execution of a will, and its absence will always render a will invalid. 22 In Tho Yow Pew & Anor v Chua Kooi Hean23, it was held by the High Court that it is trite law that the burden of proving the deceased has the requisite testamentary capacity whilst executing the will, lies with the party propounding the will and, in this case, the plaintiffs. However, where there are suspicious circumstances concerning the execution of the will, the onus is on the party propounding the will, to remove, by way of explanations, such suspicious circumstances.24 In order to test the testamentary capacity of the deceased, it is necessary to establish that at the time of executing the will, the deceased was of ‘sound mind’, ‘sound memory’ and ‘sound understanding’25

Formalities for execution of will as prescribed by Section 5 Wills Act 1959 is explained in the case of Dr. K. Shanmuganathan (suing by his attorney Dr. A. Ruraviappan) v. Periasamy s/o 19 Ibid, p 4 20 Ibid, p 4 21 Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) & Anor (2009) MLJU 657 22 Law and Accounts of Executors, Administrators, and Trustees, B.G. Vickery, FCA, p 15 23 Tho Yow Pew & Anor v Chua Kooi Hean (2001) 5 MLJ 578 24 Udham Singh v Indar Kaur (1971) 2 MLJ 263 25 Ibid, Udham Singh

11

Sithambaram Pilai26, it is trite law that the basic elements necessary to constitute a will are, the testator is mentally fit and capable, the testator must sign the will, the testator’s signature has to be witnessed by two or more witnesses who must be present at the time the testator signed it; the will must be in writing though it need not be in any particular form, and there must be no undue influence brought to bear of the testator. In the case of Chambers and Yatman v The Queen’s Proctor27 there is a presumption that a person who lacked testamentary capacity at some time before the execution of the will, continued to lack testamentary capacity at the date of execution. However, if the testator had the requisite testamentary capacity before he executed the will, there is a presumption that he continues to have testamentary capacity to make the will until the contrary can be proven.

Section 5(1) of Wills Act 1959 stated that no will shall be valid unless it is in writing. Writing includes typewriting, printing, lithography, photography, electronic storage or transmission or any other method of recording information or fixing information in a fo...