a) Whether Mike has testamentary capacity to create a will.

For the will to be valid, the testator, when made his will, must understand the nature of
his act and shall understand the extent of the property on what he is disposing. A will or codicil
is wholly invalid if executed at a time when the testator lacked testamentary capacity. So, in the
case of Banks v Goodfellow, the court applied a classic statement of the test of testamentary
capacity which Cockburn C.J stated that, “it is essential..that a testator shall understand the
nature of the act and its effects, shall understand the extent of the property of which he is
disposing; shall be able to comprehend and appreciate the claim to which he ought to give effect;
and, with a view to the latter object, that no disorder of the mind shall poisons his affections,
pervert his sense of right, or prevent the exercise of his natural faculties- that no insane delusion
shall influence his will in disposing of his property and bring about a disposal of it which, if the
mind had been sound and would not have been made.”

A testator needs to have testamentary capacity in writing a valid will. There are several
tests for a testamentary capacity. First, the testator must understand the effect of his wishes being
carried out at his death. This means that the testator must have a recollection of the manner in
which his property is to be distributed between the beneficiaries. Although, the testator need not
understand the provisions of the will in their legal form and need only understand the overall
effect of the provision of the will. Thus, the testator must have the animus testandi when making
his will which means that the testator must have intention when he writes the will. Hence, the
law that should be applies here is Section 4 of Wills Act 1959 which stated that the will made by
an infant or any person under the age of majority is invalid. It is should be noted that the age of
majority here refers to the Age of Majority Act 1971.

The second test is that the testator must understand the nature of the claims on him. This means
that the testator must understand the nature of the business in which he is engaged. Furthermore,
according to Section 3 of Wills Act 1959, it stated that every person of sound mind may devise,
bequeath or dispose of by his will, executed in manner hereinafter required, all property which
he owns or to which he is entitled either at law or in equity at the time of his death
notwithstanding that he may have become entitled to the same subsequently to the execution of
the will. In regard of that, the testator, at the time making his will, must not be unsound mind.
This is because, being in such condition will deprived the testator on his testamentary capacity if
his mental illness influence the provision of his will. According to Mental Health Act 2001,
"mental disorder" means any mental illness, arrested or incomplete development of the mind,
psychiatric disorder or any other disorder or disability of the mind however acquired. A delusion
means that a belief in the existence of something which belief no rational person could hold and
which cannot be erased by reasoned judgment, which influences or is capable of influencing the
testator, deprives him of his ‘testamentary capacity’. A testator, who suffers from a delusion if
he holds a belief on any subject which no rational person could hold, and which cannot be
permanently eradicated from his mind by reasoning with him. In Boughton v Knight, Sir James
Hannen told a jury to put to themselves: “this question, and answer it; can I understand how any
man in possession of his sense could have believed such and such a thing? And if the answer you
give is, I cannot understand it, then it is of the necessity of the case that you should say the man
is not sane”. As in the case of Re Ng Toh Piew, it was held that if at the time of making his will a
testator was, through disease, so sufficient in memory that he was oblivious to the claims of his
relatives and if that forgetfulness was an inducing cause of his choosing others to be his legatees,
his will is invalid.
Nevertheless, in practice, it may be difficult to distinguish between grave misjudgment
and delusion, particularly in relation to a testator’s assessment of the character of a possible
beneficiary under his will. Certainly, a parent is not incapacitated from making a will because he
has formed an unduly harsh view of child’s character. But if the parent’s misjudgment really
stems from an irrational aversion towards his child, among to a delusion, then the parent lack s
testamentary capacity.

However, a delusion in the mind of a testator does not deprive him of testamentary
capacity if it cannot have any influence upon him in making his will. This can be illustrated in
the case of Bank v Goodfellow where in this case, the testator suffered from the delusion that he
was pursued and molested by a certain man, who was already dead and who was in no way
connected with the testator, and by devils or evil spirits whom the testator believed to be visibly
present. Nevertheless, the court held that the testator had testamentary capacity because the
delusion was not capable of having had any influence on the provision of the will.

For the third test of testamentary capacity is when the testator make his will, he must
understand that the extent of the property of which he is disposing, although he is not required to
carry on his mind a detailed inventory of it. This test can be explained in the case of Wood v
Smith where the testator told someone, at the time he was making his will, that he had
investment worth RM17, 000 whereas the actual of his investments was in excess of RM105,
000. This showed that he was “seriously confused as to the extent of his assets” and the trial
judge decided that this was consistent with the confusion of mind as to indicate that the deceased
lacked testamentary capacity.

The fourth test is that the testator must have a recollection of the persons who are to be
the object of his bounty. In this test, the testator must have “a memory to recall the several
persons who may be fitting objects of the testator’s bounty, and understand to comprehend their
relationship to himself and their claims upon him.” As in the case of Harwood v Baker, a will
was executed by a testator on his deathbed, giving all his property to his wife was held invalid
because, owing to his illness, the testator was unable to comprehend and weigh the claims upon
him of his relatives. It did not suffice that the testator knew that he was giving all his property to
his wife and excluding all his relatives; he must also be “capable of recollecting who those
relatives were, of understanding their respective claims upon his regard and bounty, and of
deliberately forming an intelligent purpose of excluding them from any share of his property.”
Other than that, it can be seen in the case of Amanullah Hj. Hassan v Hajah Jamilah where in
this case, the testator, in near death dispose all his property to his son. The court held that the
testamentary capacity is not present as at the time the lawyer ask him to sign his will, he was
near death.

However, a will is not invalid merely because, in making it, the testator is moved by
capricious, frivolous, mean or even bad motives. As in the case of Boughton v Knight, it was
stated that, if he satisfies this test of testamentary capacity, he “may disinherit his children, and
leave his property to strangers to gratify his spite, or to charities to gratify his pride.”

Thus, the testator must fulfill all three test of testamentary capacity for the making of the
will to be valid.

In applying to the above law, as for the first test, in this case, when Mike write his will,
he knew as to how he is going to dispose of his property and the effect of his wish upon his
death. This is because, when wrote his will, he understand why he made his will to the particular
person. Moreover, Mike also aware that he need to write his will and attested by two witnesses
for the will to be valid. Also, when he made his will, he knows to whom the property should be
given and what kind of property should be given to that person as to why he want the property to
be disposed in such a way. This can be explained when he wished to dispose his house to his
sister, it is because his sister always helps him. As for Alex, Mike wished to give Alex
RM100,000 because Alex always helps him in his difficult times. So, Mike can be said has
fulfilled the first test because he understand the effect of his wishes being carried out at his death.

As for the second test, in this case, Mike suffered from depression because the death of
his wife. Mike also needs to undergo the treatment in local hospital. However, when he was not
being hospitalized for treatment, he will be at home conducting his business as a stock trader.
This can be proved that Mike not always in depression. This is because, person that under
depression does not have stable mind to conduct a business, so as depression. So, Mike is not
under depression when he wrote his will because at the time of making his will, Mike was at
home and as stated before, if he is at home, he will conduct his business as a stock trader. Also,
This is consistent with the case of Bank v Goodfellow where in this case, the judge stated that if
the person is under delusion but at the making of his will he is not under delusion and not
influenced his will, he can be said has testamentary capacity. So, Mike can be said understand
the nature of his claim when he wrote his will and thus, he satisfied the second test.

For applying the third test, in this case, Mike, when he disposing his property in his will,
he knows what property that he is disposing. This is because, he could recall all the assets that he
owns and those assets are in the exact term. As in the case of Wood v Smith, the court in its
judgment stated that the testator, when making his will must know as to the extent of his assets.
So, Mike understands the extent of his property when he wrote his will and satisfied the second
test of testamentary capacity.

For the last test, Mike, in this case, he knew and realized to whom he is disposing his
property. As in the case of Harwood v Baker, the court stated that, for the testamentary capacity
to be present, the testator must capable of recollecting who those relatives were, of understanding
their respective claims upon his regard and bounty , and of deliberately forming an intelligent
purpose of excluding them from any share of his property. In this case, when Mike wrote his
will, he is capable to recall his sister and his friends and he know to whom the property will be
disposed. Mike also aware that what type of property that he is disposing as to whom. For
example in this case, he left his house in Tanjung Rambiutan to his sister. On the other hand, for
his parents, in the case of Boughton v Knight, the court stated that being moved by capricious,
frivolous, mean or even bad motives, the testator will not be deprived of his testamentary
capacity and the will is not invalid. So, even Mike has bad motives towards his parents, which he
refuse to dispose his property to his parents, he is not deprived of his testamentary capacity
because he himself knows the reason of his will as what he stated that his parents did had not
been helpful to him when he depressed and being hospitalized. So, Mike fulfilled the fourth test
which he is able to recollect who are to be his beneficiaries.

In conclusion, Mike, when writing his will, he understand the nature of his claim, as to
the effect of his wishes on to which property he is disposing as to whom the property should be
dispose to. So, Mike has testamentary capacity to make a valid will.

c) The first issue is that whether the disposition of BMW car by Mike to his childhood
friend, Michael is valid.

A specific gift is a gift of some definite or identifiable article owned by the deceased. A
bequest refers to all movable assets, whereas a devise relates to immovable. It is now sufficient
to state that one ‘gives’ assets whether movable or immovable. In specific gift, the testator must
have intention that the gift should pass in specie. A specific gift has two characteristics. First, the
gift must form part of the testator’s estate at the date of his death. Secondly, that specified part of
the testator’s estate can be severed from the rest of the testator’s estate. It is essential that the
article to be given away is ascertainable and in existence at the time of the testator’s death. As in
the case of Ford v Fleming, a gift of money ‘out of’ specific money or a gift of stock ‘out of’
specific stock is specific gift.

So, for a specific gift, doctrine of lapse should be applied here. A precondition of the law
of succession is that a beneficiary should survive the testator in order to take the benefit, if not
the gift will lapse. As in the case of Re Whorwood Ogle v Lord Sherborne, in this case, the
testator made gift of silver cup to Lord Sherborne. At the time the testator made will, Lord
Sherborne still alive, then died before the testator and leaving his son which later become the
new Lord Sherborne. The court held that because of the beneficiary pre-deceased the testator, the
gift lapse and fall under residue. The son or new Lord Sherborne is not entitled to the gift
because the gift already lapse because there is no more intended beneficiary as the intended
beneficiary pre-deceased the testator.

However, there is an exception to this doctrine of lapse. According to Section 25 of Wills

Act 1959, where any person, being a child or other issue of the testator, to whom any property
shall be devised or bequeathed for any estate or interest not determinable at or before the death
of such person shall die in the lifetime of the testator leaving issue, and any such issue of such
person shall be living at the time of the death of the testator, such devise or bequest shall not
lapse, but shall take effect as if the death of such person had happened immediately after the
death of the testator, unless a contrary intention shall appear by the will. But it should be noted
that this section only apply when the testator bequeath his property to his child.

As for the gift that fails, the gift will be fall under residue as stated before in the case of
Re Whorwood Ogle v Lord Sherborne. Also, according to Section 19 of Wills Act 1959, unless
a contrary intention appears by the will, such property as is comprised or intended to be
comprised in any devise or bequest in such will contained, which fails or is void by reason of the
death of the devisee or legatee in the lifetime of the testator or by reason of such devise or
bequest being contrary to law or otherwise incapable taking effect, shall be included in the
residuary devise or bequest respectively, if any, contained in the will.

In applying to the above law, in this case, Mike had bequeathed his BMW car to Micheal,
his childhood friend. However, Michael died in July 2004 as a result of road accident whereas
Mike died in January 2005. So, Michael pre-deceased Mike. According to the doctrine of lapse,
the beneficiary should survive the testator to take the benefit otherwise the gift will lapse. In this
case, Michael, who is the beneficiary, died before Mike, which is the testator. So, according to
the case of Re Whorwood Ogle v Lord Sherborne, the gift made by Mike to Michael is lapse and
the gift fail. As stated in Section 19 of Wills Act 1959, the fail gift will be fall under residue.

In conclusion, the disposition made by Mike to Michael is invalid as the gift fails because
the gift is lapse as Michael pre-deceased Mike and the gift will fall under residue.