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Lecture 2: Succession

Capacity and intention to create a valid will

1. Capacity
 General rule: everyone can create will except infant (S 4, WA)
 Exception to S 4 WA: S 26 WA provides that privileged wills by armed military forces, navy
and seamen will be exempted from S 4, 5 and 6, signature of testator is not required (S
 S 26(5): Limitation period
 3 types: mental capacity, free choice and
 Mental capacity: unsound mind; Free choice

Sound mind:

 S 3 WA- only person of sound mind may “devise”- transferring immovable property;
“bequeath”- give property by will property entitled in law or in equity (referring to trust
 Test in Banks v Goodfellow: He must have a sound and disposing mind
o 4 aspects of the test:
 Nature of business: T aware that engaging in the testamentary act
 Recollection of property: He understands the property to be disposed; Case:
Waters v Waters (1848)
 The object of his bounty: Case: Harwood v Baker (1840)
 Manner of distribution: case: Boughten v Knight (1873)
 Tho Yow Tew v Chua Khooi Han 2002 4 CLJ 90
 Sethanbaral v Krishn 2004 1 CLJ 869: Mental capacity of testator need not to be in perfect
state of health as long as its clear enough to have a disposing state of mind
 Lee Eng Chin v Gan Yok Chin (COA) 2003 2 CLJ 19 (appeal dismissed by Fed court): the
testator was seriously ill with cancer did not throw any doubt on the validity of the will as
the testamentary capacity was: test (?)

Unsound mind:

 determine time of mental capacity > delusions > insanity following will > Lucid Internval >
Rule in Parker v Felgate
 Re Ng Toh Tew 1950 MLJ: the same test in Banks v Goodfellow
 Chamber v Yap Man 1849 2 Curt 415: Court admitted the probate during lucid interval even
though insanity returned and deceased killed himself
 Duke v Clark
 Anguillia v Rahim Maboo 1939 MLJ 100
 Parker v Felgate: instructed the solicitor to create her will, by the time the will was to
execute, she went into coma, will was brought to her and managed to answer the general
question. Established that she cant remember what the instruction was but she remember
she gave the instruction thus the will was valid; will only apply this rule when there is no
ground of suspicion ie just as happened in this case
o 2 conditions prior applying this rule:
 The will was prepared upon testator’s instruction
 Upon execution of will, the testator was capable of understanding that T
was executing a will
 Barton Singh v Amir Chan: Instruction x straightforward to solicitor… burden of proof
 1838 PC 480: attorney prepare the will to the one quarter of the estate of the testator…
 2 MLJ 61 Yew Gun Yap 2008 2 MLJ 868
 Udon Singh v In the Khor? Burden of proof of testamentary of appellant
 2005 CLJ 304 Read the will in English did not understand hakka

Presumption can be rebutted:

1) The testator sane at the time of will wa made

Intention (Conditional and unconditional)

1982 2 MLJ 227: Testator made a will giving a land to his brother and his wife; Appellant in this case
adopted by the 2nd respondent, brother of the deceased and lived with the mother (deceased);
Launch a caveat, mother has no right to claim the land as did not fulfil condition (only brother

Knowledge and Approval

 Lord Penzance in Cleare v Cleare (1869)

 The burden of proof is on the propounder of the will. But if the will is shown to have been duly
executed and made by a testator with the mental capacity, the presumption would be that the
testator knew and approved of the contents
 S 101 Evidence Act: the person wanting to rebut must fulfil the burden of proof
 The effect of the presumption would be to shift the evidential burden to the person challenging
the will, who must then produce evidence to rebut the presumption.
 1959 1 On The boards 552: burden of proof on the solicitor that the testatrix knew and approve

Suspicious Circumstances

2 types: will make by beneficiaries and other circumstances

Painton: invalid, will in favour of D, son’s handwriting

FREE CHOICE: Vitiating factors: Mistake, undue influence, fraud, coercion

Carmel Mary Soosai 1987 2 CLJ 426: Coercion and undue influence

Subramanian v Rajaratnam 1957 MLJ 11: undue influence: burden of proof