SAWINDER KAUR FAUJA SINGH V.

CHARNJIT SINGH THAKAR

SINGH

HIGH COURT MALAYA, KUALA LUMPUR

ZAINUN ALI JC
[CIVIL SUIT NO: S5-22-787 OF 1990]
13 SEPTEMBER 1996

SUCCESSION: Probate - Validity of will - Whether will signed by testator in presence

of two witnesses - Section 5(2) Wills Act 1959 - Whether complied with

This was an application by the plaintiff for a declaration that the will of her deceased
husband was null and void. The plaintiff's claim was based on the evidence of one Major
Singh who testified firstly, that he had been asked by the testator to sign on the will, and
secondly, that at the time of his signing there were already two signatures on the will.
Major Singh's affidavit also showed that during the probate proceedings before the
learned SAR, only one question had been asked of him, i.e. pertaining to the mental
condition of the deceased at the time of executing the will. It was not in dispute that his
answer to the learned SAR's question was that the testator appeared normal. In the
circumstances, a question arose before the learned judge herein as to whether the will
aforesaid has met the requirements of s. 5(2) of the Wills Act 1959 and therefore
constitutes a valid will in law.

Held:

[1] The operative words of s. 5(2) of the Wills Act 1959 are clearly of a peremptory
nature and so it is clear that the testator is to acknowledge his signature in the actual,
visual presence of two or more witnesses.

[2] There is no evidence that Major Singh, upon seeing the two signatures on the will,
had inquired of the deceased whose signatures they might be. There is also no evidence
that the deceased had intimated to Major Singh, or to any other person, that one of the
signatures on the piece of paper was his, or that of some person who signed upon his
direction. Thus, as must appear from his testimony, the oral evidence of Major Singh has
not met the requirements of s. 5(2) of the Wills Act .

[2a] It is significant that the learned SAR has omitted to ask of Major Singh the one
crucial question, and that is, whether the deceased signed or acknowledged his will in the
presence of Major Singh. Failure to do this is fatal to this case.

[3] According to Major Singh, the deceased had intimated to him of a desire to bequeath
to his son his property in India. The purported will however talks of the deceased's
property in this country. There seems to be some miscommunications here but neither the
plaintiff nor the defendant had offered any explanation for same.
[4] On the evidence, there was no acknowledgement or signature by the testator Thakar
Singh to his will in the presence of two or more witnesses present at the same time. This
court is therefore bound to pronounce against the will.

[Application allowed.]

Cases referred to:

Re Colling [1972] 1 WLR 1440 (foll)

Re Groffman [1969] 1 WLR 733 (foll)

Legislation referred to:

Wills Act 1959, s. 5(2)

For the plaintiff - Balwant Singh Sidhu; M/s Balwant Singh Sidhu For the defendant -
Gomez; M/s Azlin, Alahakone & AssocsReported by WA Sharif

[Application allowed.]

JUDGMENT

Zainun Ali JC:

The plaintiff's claim is for a declaration that the will of her deceased husband Thakar
Singh is null and void.

Though probate was granted, this issue emerges when the probate was caveated by the
plaintiff. Subsequently a writ was filed to challenge the grant of probate.

Briefly the facts before this court shows that the plaintiff who is the 2nd wife and widow
of the deceased harboured grave reservations about the validity of her late husband's will.
Thus she stayed away at the reading of the will at the lawyer's office. Instead she engaged
a lawyer to question the authenticity of the will.

The plaintiff's claim hinges almost entirely on the affidavit of one Major Singh also gave
oral testimony as the plaintiff's witness.

Despite his advancing years and the fact this event occurred a good 13 years ago, Major
Singh's faculties remain unimpaired and he answered with alacrity.
Major Singh's evidence was that on the day in question he was under a tree near Wisma
Yakin. This place seems to be a favourite spot for old Sikh gentlemen. At that time, he
was approached by the deceased.

The deceased had a paper in his hand. The deceased told him that he wanted to give his
son his property in India. Note that, that was all that was said with regard to the property.

The deceased then asked Major Singh to sign on the piece of paper. Major Singh testified
in both his affidavit and in court that that piece of paper already bore two signatures.

The significance of this fact cannot be over emphasised.

Major Singh then duly signed on that piece of paper.

Leaving this scene awhile, I shall go to the probate proceedings before the Senior
Assistant Registrar.

Major Singh's affidavit affirmed on 4 March 1991 (p. 14 of Bindle B1-1) at para. 5 states
that:

He was asked by the Senior Assistant Registrar with regard to the mental
condition of the deceased at the time he (Major Singh) signed the document.

Major Singh testified that the deceased appeared normal.

Miss Comez, counsel for the defendant seems to set such great store by the
testimony of Major Singh at the probate proceedings. Counsel submitted that
Major Singh's affidavit should have been clearer as to what actually happened at
the probate hearing before the Senior Assistant Registrar. Counsel seems to
impute that the affidavit is inadequate and therefore does not truly reflect what
transpired.

I am afraid I fail to see how much more clearer Major Singh could have been in
both his affidavit and his evidence in court. In fact the one bears out the other and
this consistency merely reflects the veracity of Major Singh's statement.

Major Singh was asked only that one question and thus could not possibly have
been prolific in his evidence. To do otherwise may well run himself the risk of
perjury.

It is significant that the Senior Assistant Registrar omitted to ask of Major Singh
the one crucial question and that is, whether the deceased signed or acknowledged
his will in the presence of Major Singh.

Failure to do this appears fatal to this case.

The Law

As it stands, s. 5(2) Wills Act 1959 is equivocal in its terms. It states that:

Every will shall be signed at the foot or each thereof by the testator or some
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 present of two or
more witnesses present at the same time...
(The underlined words are mine)

The operative words are clearly of a peremptory nature and so it is clear that the
testator is to acknowledge his signature in the actual, visual presence of two or
more witnesses (see Re Groffman [1969] 1 WLR 733 - Re Colling [1972] 1 WLR
1440).

The facts that are staring at us in the face here are that:

Major Singh said he signed the piece of paper when there were already two
signatures on it. There was no evidence that Major Singh inquired of the deceased
whose signatures they might be.
The other is that there is no evidence that the deceased intimated to Major Singh
or to any other person that one of the signatures on the piece of paper is his, or
that of some person who signs upon his direction.

From a reading of s. 5(2) Wills Act 1959 , it is apparent that the section is drafted
to avoid fraud.

I would agree with the observation of Mr Justice Ungoed-Thomas in Re Colling

[1972] WLR 1440 that despite its clear terms, "oral evidence has to be relied upon
of the circumstances in which the signature or mark of the testator and the
witnesses are appended to the document.

The giving of oral evidence has been done in our case, in the form and shape of
Major Singh. However, as must appear from his testimony the requirements of s.
5(2) Wills Act 1959 have not been met.

As must also appear from Major Singh's evidence, on the day in question, the
deceased intimated to him his desire to bequeath to his son his property in India.
The purported will however talks of the deceased's property in this country. There
seems to be some miscommunication here, which was never explained. Either by
the plaintiff or defendant.

Even assuming the purported will correctly represents the testamentary intentions
of the deceased, I am duty bound to give effect to the clear terms of s. 5(2) Wills
Act 1959 .
I believe I am fortified in this regard, for in Blake v. Blake Sir George Jesel MR
posed the question:

What is in law a sufficient acknowledgement under statute?

He answers thus:

What I take to be the law is correctly laid down in Jarman On Wills in the
following terms:
There is no sufficient acknowledgement unless the witnesses either saw or might
have seen the signature not even though the testator should expressly declare that
the paper to be attested by them is his will.

Based on the foregoing, it is my view that there was no acknowledgement or

signature by the testator Thakar Singh to his will, in the presence of two or more
witnesses present at the same time.

I might add that curiously the defendant offers no evidence other than his own,
which is wholly unsatisfactory to rebut plaintiff's allegation of fraud.

Thus I am bound to pronounce against the will of the deceased and accordingly
allow plaintiff's claim with costs.