Clause 1

Law

‘Personal Representatives’ includes both executors and administrators in Malaysian

Succession Law.1 Executors and administrators of the Will, will not only have the power to,
but owes a duty to determine the liabilities according to the debts of the testator, distribution
of assets to the beneficiaries within the will, estate duty or funeral expenses. 2 According to
the Probate and Administration Act 1959 (PAA 1959), which only applies to West Malaysia,
a grant of probate from the court must be obtained beforehand, as a form of confirmation for
the executor to exercise his powers and position written within the Will, by having the Will
‘proved’ by the court. However, according to S4(1) of the PAA 1959, no more than 4
personal representatives can be assigned to the same property. 3 According to the Rules of
Court 2012, O.72 r2(2), The Registrar shall not grant the executor with the grant of probate
until all questions, which The Registrar deems fit to be answered, had been answered with
satisfaction.4 A ‘personal representative’ can be expressly nominated by the testator,
however, as provided in the case of AG v Hajee Abdul Cader5, the testator must expressly
name the executor in the body of his Will. If an executor had accepted his office to be an
executor, he may not renounce it. He must also accept the duty in whole, and cannot refuse to
accept in part or refuse in part. A personal representative, will always result in a fiduciary
position to the assets and thus will owe a fiduciary duty to all parties within the Will. 6 A
person however, may at sometimes become both the trustee and a personal representative. In
the case of Re Ponder7, the courts decided that a personal representative will transform
himself into a trustee when he has fulfill his duties being, to discharge all liabilities, distribute
the assets to the beneficiaries, and holding the remaining assets not as a personal
representative, but as a trustee. This decision was latter affirmed in the case of Re
Cockburn’s Will Trusts8, which states that if the personal representative is holding the assets
for any of the beneficiaries because of circumstances in each case which hinders the personal

1
Mahinder Singh Sidhu, The Laws of Wills Probate Administration and Succession in Malaysia and Singapore
(Kuala Lumpur : International Law Book Services, 1998)
2
Ibid
3
Probate and Administration Act 1959, Section 4(1)
4
Rules of Court 2012, O.72 r2(2)
5
[1883] 1 Ky 616
6
Ibid
7
[1929] 2 Ch 59
8
[1957] Ch 438
representative from delivering the assets to the beneficiaries, the personal representative will
then become a trustee.

Application

In this case, David Lee Man Seng will be expressly named as the sole executor, as
provided in AG v Hajee Abdul Cader’s9 case, according to the intention of the testator for
him to be the sole Executor and Trustee of the testator’s Will. If the Will is set out to be
executed in West Malaysia, according to PAA 1959, a grant of probate from the court must
be obtained for David Lee Man Seng to solidify his position as an executor of this Will. 10 As
provided by O.71 r4(1) of the Rules of the High Court, The Registrar will grant him the
position of the executor, after he has answered all the questions asked by The Registrar as
they deem fit.11 After accepting the position, he cannot renounce himself from it. He must
also accept to be the executor of the will in whole and not in part. According to the rules in
Re Ponder12 and Re Cockburn’s Will Trusts13, if there is any circumstance that hinders him
from delivering assets to the beneficiaries, as the Will has also stated for him to be the trustee
of the Will, he will transform to a trustee after all other duties ask from him had been duty
fulfilled.

Clause 2

Law

If a divorce had occurred, an original gift bequest by a testator on a prior Will, may be
void when there is a contrary intent in a consequent Will to remove the spouse from prior
Will.14 In the case of Re Jackson,15 the court held that a codicil that is made subsequently to
the divorce of a married couple, affects the construction of the Will and the intention of the
testator in a way that it should not ensure the benefit of the divorced spouse.

In the case of Re Mana Seena Veeran16, the question to the court was whether the
will was revoked by the testator’s undelivered revocation letters to the solicitors? The court in
this case held that a mere intention of revoking the Will is insufficient. To effectively revoke

9
Ibid
10
Ibid
11
Ibid
12
Ibid
13
Ibid
14
Ibid
15
[1933] CH 237
16
[1975] 1 MLJ 483
a Will, one of the means under S.14 of the Wills Act 1959 (WA) must be adopted. S14 of
WA states that a will can be revoked by a) an action which leads to the destruction of a Will
with the intention of doing so and b) execute a new Will or codicil with a declaration of
intention.17 The making of a new Will does not automatically revoke the previous Will, even
if inconsistency exist. In the case of Gan Kim Heng v Lee Siew Seok18, a former Will was
created which devised land to the cousin of the testator. A latter Will indicate that the land as
a whole was to be devised to his widow and children. The Federal Court held that when
inconsistency of a previous Will and latter will has aroused, the latter cannot presumably
revoke the former Will and prevail against it. The court further added that this general rule
will not apply in a situation where the previous clause was expressly mentioned in a latter
Will, in a revocation clause where the latter Will under this circumstance, prevail. Therefore,
the cousin in this case was entitled to the land, the widow and the children were entitled to
the residue of the land. However, the revocation of a Will often depends on the circumstance
of the case. The courts in Fatimah v Logan held that whether or not the latter’s Will override
the former, or the determination of the existence of an intention denoted on a latter Will,
depends on the construction of the latter Will as to whether it intends for every part of the
Will to be effective.19 In the case of Quaik Kee Hock v Wee Geok Neo,20 the question
brought before the court was whether ‘children’ within the Will includes an adopted child.
The Will contains two clauses which defined ‘children’ but they were inconsistent and
unambiguous. The Court ruled in such cases, a latter unambiguous clause will not revoke a
previous unambiguous clause. The courts will, if possible, construct the clauses so that they
may stand together and give authority to both the latter, and the previous clause. In the case
of Re Howard21, the courts stressed that there must be evidence that the later Will was
executed and that the Will contains words which expressly or impliedly revoked the prior
dispositions.

Application

In this case, the former Will indicated that Steven Lee, the testator’s husband, will
obtain all her savings in Matahari Bank Berhad. The former Will also indicated that half of
the testator’s savings in Bulan Bank Berhad will be devised to her mother, Auntie Elizabeth
and another half to her son, David. For a revocation to be effective, as provided in the case of
17
Wills Act 1959 (Act 346)
18
[1970] 1 MLJ 85 FC
19
[1871] 1 Ky 255
20
[1886] 4 Ky 128
21
[1944] P 39
Mana Seena Veeran, the method must be within the ambits of S14 of the WA 1959. 22 Under
S14 of the WA, by constructing a new Will to include a new clause which expressly states to
revoke the former Will must be included for the revocation of the previous Will to take
effect. The General Rule given in Gan Kim Heng v Lee Siew Seok 23is that inconsistency
between the former and latter Will, will not automatically imply that the latter Will had
prevailed. Therefore, a clause which expressly states that the previous Will’s clauses must be
included in the new Will. As provided in the case of Fatimah v Logan,24 the construction of
the will must intend that the new Will shall be effective rather than the old will. If, however,
the terms used within the new Will is somehow unambiguous, the courts will not let the
clauses prevail over one another as provided in Quaik Kee Hock v Wee Geok Neo.25
Therefore, the new clause, under the new Will must ambiguously state that, under the
construction of the new Will, it intends to revoke the previous Will, and David shall
indefinitely obtain all the savings in Matahari Bank Berhad and Bulan Bank Berhad, and
shall thereby revoke the previous Will’s clauses which entitled Steve and the testator’s
mother to the savings. As provided in Re Howard’s case, it is important that the new clause
expressly states that Steve and the testator’s mother should not receive the benefits that they
were entitled to in the previous Will, and the latter Will did in fact, expressly stated as such.

Clause 3

Law

Under s3 of the WA 1959, a person of full age and sound mind may dispose any
property that he owns or is entitled by law in his Will. 26 Therefore, a testator may dispose of
any house as long as he is the sole owner.27 If the house is in a joint-ownership, such as a
house bought under the name of a husband and a wife, the testator, being the husband or the
wife, cannot presumably entitle a beneficiary under the will, half of the house that he owns. 28
Since he is dead, he is not capable of disposing his half-share in the piece of land. In the case
of Perrin v Morgan, Lord Romer 29stated that he is of the opinion that the construction of the

22
Ibid
23
Ibid
24
Ibid
25
Ibid
26
Ibid
27
Ibid
28
Ibid
29
[1943] AC 339,420
will is so construed to give effect to the intention of the testator. Therefore, the intention of
the testator, strongly reflects on the construction of the Will.

Application

In this case, Madam Brenda Chan Ting Ting under the current list of her property,
includes a bungalow house. This is presumably a house which she solely owns. Therefore,
under s3 of the WA, she is entitled to devise the bungalow to her father. However, there is no
indication under her testamentary instructions dated on the 1 st of December 2018 that the
bungalow should be devised to her father. As provided by Lord Romer, the intention of the
testator strongly reflects on the construction of the Will. In the previous Will, the house was
devised to her father. Under the testamentary instructions, there was no clause indicating as
such. However, it is possible to see the intention of the testator to devise her bungalow to her
father because there was no intention of revoking the previous Will, that her father is to be
devised with the bungalow under the new testamentary instruction. Therefore, Uncle Chan is
still entitled to the bungalow and set within the new Will.