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DALAM MAHKAMAH TINGGI DI KUALA LUMPUR

DALAM WILAYAH PERSEKUTUAN MALAYSIA

[GUAMAN SIVIL NO: WA-22NCVC-62-02/2017]

ANTARA

LYNETTE MEI LI PONNIAH

(No. K/p: 681020-10-6854) … PLAINTIF

DAN

LIM SWEE GIN

(No. K/p: 640201-66-5048)
(sebagai Wasi Wanita (Executrix) Probet bagi Harta Pusaka di bawah
Wasiat terakhir Samuel Vincent Ponniah (No. NRIC: 381106-10-
5081) … DEFENDAN

JUDGMENT

[1] Samuel Vincent Ponniah (“Deceased”) was a former Advocate

and Solicitor of the High Court of Malaya. He was with the firm of
Advocates & Solicitors known as Messrs Braddell & Ramani in the
early years of his practice and was later a partner in the firm of
Messrs Ng Ek Teong & Partners. The Deceased will be known to
many of the more senior members of the Bar. He unfortunately passed
away on the 28 th of January 2015. The Plaintiff is the biological
daughter of the Deceased. This case concerns the Plaintiff’s claim to
be entitled as a beneficiary to the Deceased’s residuary estate. The
Defendant is the executrix of the Deceased’s estate and also his wife
at time of the Deceased’s demise.

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Background

[2] The Plaintiff is the biological issue of a union between the

Deceased and one Lim Kim Yoke (“Linda Lim”). Sometime between
late 1966 and early 1967, the Deceased and Linda Lim underwent
what was said to be a Chinese customary “tea ceremony” to celebrate
their marriage. Among those present at this tea ceremony were the
Deceased’s sisters Vivian Joy Ponniah and Ivy Ruth Ponniah and the
sisters testified at the trial as witness “PW1” and “PW2” respectively.
Both PW1 and PW2 had each affirmed a statutory declaration and
their respective statutory declarations were admitted into evidence in
bundle of documents marked as “Bundle B”, which consisted of
documents the authenticity of which were not disputed, but their
contents were not admitted.

[3] PW1 testified that their father was of Indian descent and was
born in Malaysia. Their mother was of Chinese origin and was
described by PW1 as a Chinese Hakka from Melaka. PW1 and PW2
testified that their parents were Christians and the children had a
Christian upbringing. However, both PW1 and PW2 testified that the
Deceased was not a practising Christian. He was described by PW2 as
a free thinker. The sisters testified that the tea ceremony was held at a
flat rented by the Deceased known as Sam Mansions, in Kuala
Lumpur. It was a simple ceremony. They remembered that tea was
served, “ang pows” i.e. red packets, were given and “aunties” were
present to assist in guiding the couple through the process, though not
much guidance was required as it was a simple ceremony. Although
both PW1 and PW2 were uncertain of the exact date of tea ceremony
however, they were adamant that it did take place and it took place
towards the end of 1966 or early 1967. At that time, the Deceased who
was born in November 1938, would be just over 28 years of age. After
the tea ceremony, Linda Lim stayed with the Deceased at his Sam
Mansions flat.

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[4] The Plaintiff was born on the 20 th of October 1968. Her birth
certificate was in the bundle of documents the authenticity of which
was not challenged. She was named Mei Li, the Deceased was named
as her father and Linda Lim named as her mother. She has a
Malaysian National Registration Identity Card bearing No. 681020-
10-6854 and her name therein stated is “LYNETTE MEI-LI
PONNIAH”. There was really no evidence to suggest that the Plaintiff
was not the issue of the union between the Deceased and Linda Lim.

[5] Unfortunately the Deceased’s relationship with Linda Lim did

not last long. A few months before the Plaintiff’s first birthday, Linda
Lim left, leaving behind the Plaintiff to be in the sole care of the
Deceased. It then came to be that the Plaintiff was raised by the
Deceased to adulthood, initially at Sam Mansions and subsequently,
apart from a relatively brief period, at the Deceased’s house at No.
11A, Lorong Mempoyan, Damansara Heights, 50490 Kuala Lumpur
(“Damansara Property”).

[6] Sometime around 1970, the Deceased married one Caroline

Wulf. In his application form for migration to Australia, the Deceased
stated in a form provided, that the period of this marriage was from
17 th October 1970 to 18 th November 1976. In this form the Deceased
indicated that this marriage was under the Christian Marriage
Ordinance of 1956 and he stated that the marriage ended in a divorce.
The Defendant, who testified at the trial as DW1, stated in her witness
statement that she was told by the Deceased that, “…he was married
to one Caroline Wulf in 1970 under the Christian Marriage Ordinance
1956 but had divorced her in 1976.” Thus, the Deceased’s marriage to
Caroline Wulf is not disputed and in any event, that marriage has no
particular relevance to the issues in dispute in this suit.

[7] On the 16 th of December 1991, the Deceased married the

Defendant. Their marriage was registered in accordance with the

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provisions of the Law Reform (Marriage and Divorce) Act 1976 which
only came into effect on the 1 st of March 1982. In her witness
statement, DW1 stated that she used to be taken to the Deceased’s
house and she would see the Plaintiff there as a young girl. She
testified that she was told that the Plaintiff was born out of wedlock
and that her mother, Linda Lim, was someone whom the Deceased had
merely cohabited with, without having undergone any form of formal
marriage. The Plaintiff, who testified as PW3, recalled having met the
Defendant in 1986 when she was living with the Deceased in the
Damansara Property. The Plaintiff was about seventeen years old
then. Both the Plaintiff and the Defendant never maintained any close
relationship. While the Plaintiff was in Australia, she was informed
by her father that he was going to marry the Defendant. After the
marriage, the Plaintiff and the Defendant never kept in touch or
corresponded. The Plaintiff testified that when she returned from
Australia, although they got along, it was nevertheless difficult at
times. However, she described their relationship as being cordial.
Both the Plaintiff and Defendant testified that their relationship
became more difficult after the demise of the Deceased. The
Defendant is about four years older than the Plaintiff.

[8] It was an agreed fact that upon his demise, the Deceased left
behind a will dated the 3 rd of April 2014 (“Will”). It was also an
agreed fact between the parties that at the time of his death on 28 th of
January 2015, the Defendant was the wife of the Deceased. The Will
has only four clauses. The first clause, clause 1, appoints the
Defendant as the sole executrix of the Deceased’s estate:

“1. I appoint my wife LIM SWEE GIN, Singaporean I.C. No. S

1659455 E of Lorong Mempoyan, Damansara Heights,
50490 Kuala Lumpur to be the Sole Executrix of this my
WILL.”

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Clause 2 of the Will states as follows:

“2. I bequeath all that property known as No. 11A, Lorong

Mempoyan, Damansara Heights, 50490 Kuala Lumpur,
held under title deed Geran 34369 Lot 9099 in the Mukim
and District of Kuala Lumpur and State of Willayah
Persekutuan absolutely.”

This property shall hereinafter be referred to as the “Damansara

Property”. However, it is not stated in the Will to whom the
Damansara Property was devised.

Clause 3 of the Will states as follows:

“3. I bequeath all that property known as No. 370 H Alexandra

Road # 02-08 the Anchorage, Singapore 159961 to my wife
absolutely.”

Clause 4 of the Will states as follows:

“4. I give all the monies in my Current Account No.

514123612029 with Maybank Bangsar Baru, Kuala
Lumpur and in my Current Account No. 0002263289 with
ANZ Singapore to my wife absolutely.”

[9] There was no residuary clause in the Will that would provide for
the distribution of the Deceased’s residuary estate or the distribution
of any asset that was not properly bequeathed or devised to any
identifiable beneficiary. The absence of such a clause in the
Deceased’s Will therefore provided the reason, and basis, for the
claim in this suit. The Plaintiff, being the daughter of the Deceased,
claimed to be entitled as a beneficiary to the residuary estate of the
Deceased under the provisions of the Distribution Act 1958 (Act 300)
(“Distribution Act”).

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[10] What had not been included in the Will were (i) a house in
Melbourne, Australia, owned by the Deceased with the address 5/2
Newton Street, Chadstone VIC 3148, Australia (the “House in
Australia”) and (ii) a sum of RM2,433,900.00 owed by Dato’ Syed
Mustaffa Bin Syed Abdullah to the Deceased following a Deed of
Settlement Agreement dated the 8 th of April 2009.

[11] The Defendant testified that there was a prior will left behind by
the Deceased referred to as the Australian Will. This Australian Will
was however dated 13 th January 2011. The Defendant testified that no
probate had been taken out in respect of the Australian Will. The
reason for this, given by the Defendant, was because she could not
find the witnesses. The Defendant had been advised by her Australian
solicitors that without the witnesses, probating the Australian Will in
Australia will be cumbersome.

[12] Probate in respect of Will was granted to the Defendant on the

29 th of May 2015. In an application for the grant of probate, it is a
requirement under Order 71 of the Rules of Court 2012 that persons
alleged to be entitled to share in the distribution of the estate of a
deceased is to be identified and how such a person is said to be
related to the deceased should be stated. However, in her application
for grant of probate, the Plaintiff failed to name the Defendant as a
beneficiary to the Deceased’s residuary estate. The Defendant
maintained that the Plaintiff was an illegitimate daughter of the
Deceased and was not entitled to be a beneficiary under the
Distribution Act.

[13] In the light of the foregoing the Defendant has sought inter alia
an order that the Will be rectified such that the Defendant’s name be
added as the sole beneficiary of the Damansara Property and the sum
of RM2,433,900.00 said to be owing by Dato’ Syed Mustaffa bin Syed
Abdullah to the Deceased.

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Was the Deceased’s marriage to Linda Lim lawful?

[14] The evidence tendered in Court through the sisters of the

Deceased was that the Deceased and Linda Lim had gone through a
Chinese customary tea ceremony in late 1966 or early 1967 to
solemnise their union and marriage. Besides PW1 and PW2, no one
else was called to testify who was present at that tea ceremony. The
testimony of PW1 and PW2 on this issue was challenged by learned
counsel for the Defendant. However, in my opinion, these witnesses
were firm and adamant that the tea ceremony did take place. Learned
counsel for the Defendant, in his submissions, suggested that PW1
and PW2 are interested persons. I do not see how that is so. They have
no interest, either under the Deceased’s Will or the Distribution Act
1958.

[15] There is, also in evidence, a statutory declaration affirmed on

14 th September 2015 by one Dr John Danaraj Ponniah, who is the
brother of the Deceased. His statutory declaration is also in the bundle
of documents in respect of which their authenticity were not
challenged but their contents not agreed to. Dr John Danaraj Ponniah
did not testify at the trial. In addition, in his statutory declaration, he
states candidly that although he was invited, he did not personally
attend the tea ceremony. He therefore could not, and did not, testify as
to the tea ceremony.

[16] Learned counsel for the Defendant pointed to the discrepancy of

the dates given in respect of the alleged tea ceremony and customary
marriage. Reference was made to the document that the Deceased
completed for his application to migrate to Australia. This was in
1991. In that document, the question posed was “14. Have you
previously been married or been in a de facto/Common Law
Relationship?” In the details given by the Deceased, he stated that the
name of his previous spouse was LIM KIM YOKE, and beneath the

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name, in parenthesis, he stated “(de facto/Common Law

Relationship)”. He then went on to state that the marriage or
relationship started in “‘67” and ended in “‘69” and, as to how it
ended, the Deceased stated that it ended by “MUTUAL CONSENT”.
He also stated that there was one child out of the union. There was
also a second application by the Deceased for migration to Australia,
but this time as a parent. In this application he stated in the
affirmative to the question “Have you previously been married or
been in a de facto/Common Law Relationship?”. He also stated the
name of “LIM KIM YOKE” and that the period of marriage or
relationship started on the 1 st of March 1967 and ended on 31 st
December 1969. As to how the relationship ended, the Deceased
stated “MUTUAL DEFACTO SEPARATION”. With this evidence,
learned counsel for the Defendant maintains that the Deceased himself
did not maintain that he and Linda Lim were legally married. Legally,
counsel for the Defendant maintained that because the Deceased was a
Christian, his alleged marriage to Linda Lim by way of Chinese
customary marriage was null and void due to the provisions in the
Christian Marriage Ordinance 1956. In this regard, contrary to the
testimony of PW1 and PW2, the Defendant testified that the Deceased
was a staunch Christian and lived a Christian life. She testified that
the Deceased would describe himself as being fearful of God.

[17] Having regard to the evidence that was led and the cross
examination of PW1 and PW2, I am of opinion that the Deceased and
Linda Lim did undergo a Chinese customary tea ceremony to celebrate
and solemnise their marriage. It should not be overlooked that the
Deceased himself saw it necessary to disclose his relationship with
Linda Lim in both his applications to migrate. Contextually, Chinese
customary marriages were not statutory in nature and given the
question posed in the migration forms, the description “common law
relationship” is not obviously incorrect. More significantly, in both

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migration forms, the Deceased stated “LIM KIM YOKE” under

“Name of previous spouse”. It therefore falls to be considered if the
Chinese customary tea ceremony between the Deceased and Linda
Lim gave rise to a valid and lawful marriage between them.

[18] At the time of the tea ceremony, at any rate prior to 1 st March
1982, the matrimonial regime in Malaysia was very different.
Polygamous marriages and customary marriages were recognised.
However, as pointed out by learned counsel for the Defendant, in
relation to Christians, there was the Christian Marriages Ordinance of
1956.

[19] The preamble to the Christian Marriage Ordinance of 1956

describes it as being, “An Ordinance to regulate the solemnisation of
Christian marriages throughout the Federation of Malaya and to
provide for the registration of such marriages”. Based on its preamble,
this Ordinance is expressed to be concerned only with “Christian
marriages”. Section 2 of this Ordinance defines “Christian” to mean,
“…a person professing the Christian religion;” Section 3 provides as
follows:

“3. Every marriage between Christians and every marriage

between persons one of whom is a Christian shall be solemnised
in accordance with the provisions of either of this Ordinance or
of the Civil Marriage Ordinance, 1952, and every such marriage
solemnised otherwise than as provided in this section shall,
subject to the provisions of this Ordinance or the Civil Marriage
Ordinance as the case may be, be void.”

[20] In Re Loh Toh Met, Decd. Kong Lai Fong & Ors v. Loh Peng
Heng [1961 ] 1 MLJ 234 the deceased was survived by three women
whom he married in accordance with Chinese custom. The deceased
died intestate. The learned Trial Judge held that the deceased was a
person professing the Christian religion and since his marriage to the

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three women were not in accordance with the provisions of the

Christian Marriage Ordinance of the Straits Settlements and of the
Christian Marriage Enactment of Johore, his three marriages were
void. In the judgment of Thomson CJ in the court of Appeal, his
Lordship stated, at p 244 of the report, that:

“Section 3 provides that “every marriage between persons, one

or both of whom is or are a Christian or Christians” (that is by
the definition section ‘persons professing the Christian
religion’) which is solemnised otherwise than in accordance
with the provisions of the Ordinance “shall be void”.

In fact, section 3 of the Christian Marriage Ordinance (Chapter 82)

states as follows:

“3. Every marriage between persons, one or both of whom is or

are a Christian or Christians, shall be solemnized in accordance
with section 4, and any such marriage solemnized otherwise than
in accordance with such section shall be void.”

Section 3 of the Christian Marriage Enactment of Johore states as

follows:

“3. Every marriage between persons one or both of whom is or

are a Christian or Christians shall be solemnized in accordance
with the provisions of the next following section; and any
marriage solemnized otherwise than in accordance with those
provisions shall be void.”

To my mind, although not identically worded, section 3 of the

Christian Marriage Ordinance (Chapter 82), section 3 of the Christian
Marriage Enactment of Johore and section 3 of the Christian Marriage
Ordinance of 1956 are not materially different. After a detailed and

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careful analysis, the learned Chief Justice in Re Loh Toh Met, Decd.
Kong Lai Fong & Ors held as follows, at page 245 of the report:

“Returning now to the Straits Settlements Christian

Marriage Ordinance, this purports to consolidate the law relating
to Christian marriage and in my view for reasons which were
stated at length in the case of Dorothy Yee, which was a case
relating to the jurisdiction of the Court in divorce, the Christian
marriage in question means monogamous marriage. The
Ordinance deals not with marriage in general but only with the
single definite type of relationship which can be described as
Christian or monogamous marriage. It has nothing to do with
any other type of relationship which is known by another name.
It has nothing whatsoever to do with the Muslim type of
polygamous marriage nor with the Chinese type of polygamous
marriage. It deals with monogamous marriage and monogamous
marriage only.

From the foregoing it is clear that the whole object,

purpose and scope of the Ordinance is to provide a code of law
governing the solemnisation of Christian or monogamous
marriages and the true effect of section 3 is clearly to avoid as
such any purported Christian or monogamous marriage not
solemnised in accordance with the provisions of the Code. It has
nothing whatsoever to do with such matters as capacity to marry
nor, what is more important for the purposes of the present case,
does it affect in any way the capacity of any individual, which
he otherwise enjoys, to enter into a marital relationship of some
other sort. In particular, coming back to what has been said
regarding Chinese polygamous marriages, it would in my view
be impossible to read into the Ordinance anything which would

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forbid a Chinese to enter into the type of matrimonial

relationship which, as has been seen, is open to the members of
the community to which he belongs. Still less is there to be read
into it anything that would invalidate any such relationship
when freely and voluntarily and properly entered into.

I am, of course, well aware that this is contrary to the view

of Sir Charles Murray-Aynsley in the case of In re Henry Lee
Fow Lee where he held that where a woman had gone through a
form of marriage with a Chinese man domiciled in Singapore
who was a Christian otherwise than in accordance with the
Ordinance the marriage was invalid. Reluctant as I am to differ
from a Judge whose reputation stands so high in our legal
history, I feel compelled to do so and I am bound to observe that
in the first place his Lordship gave no reasons for his opinion
and in the second place it would appear that in the case the
question was not very thoroughly discussed.”

(Emphasis added)

Hill JA in concurring with the learned Chief Justice stated, at page

249 of the report, as follows:

“It is clear beyond doubt that the only valid monogamous

marriage a Christian could contract was as provided for in these
two laws, but nowhere in them is a polygamous marriage by a
Christian forbidden if his personal law based on his race
recognises polygamy.

If a person is a Christian and at the same time his personal

law based on his race recognises polygamous marriages, surely
he is free to choose whether he will contract as a Christian a
valid monogamous marriage or to form a valid polygamous
union or unions in accordance with his personal law. If it was

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the intention in either of the Christian Marriage laws under

consideration to forbid to such a person valid polygamous
unions, that object in my view was not achieved. Nowhere is
such a marriage expressly or impliedly forbidden.”

While it is clear that prior to the coming into force of the Law Reform
(Marriage and Divorce) Act 1976, customary marriages were held to
be valid in law and this is notwithstanding the fact that they may be
polygamous (See Re Lee Siew Kow, Deceased Yeo Siew Neo (W) v.
Gan Eng Neo (W) & Ors [1952] 1 MLJ 184 and Dorothy Yee Yeng
Nam v. Lee Fah Kooi [1956] MLJ 257], that is not quite the issue at
hand. The issue at hand is whether section 3 of the Christian Marriage
Ordinance of 1956 may be interpreted in the same manner as section 3
of the Christian Marriage Ordinance of the Straits Settlements as did
Thomson CJ in Re Loh Toh Met, Decd. Kong Lai Fong & Ors. As to
this, Thompson CJ suggested that it can be. This was in Re Ding Do
Ca, Decd. [1966] 2 MLJ 220 at p 223 where Thomson, now Lord
President of the Federal Court, observed:

“There is, however, nothing in the Christian Marriage

Enactment (or the later Christian Marriage Ordinance)
corresponding to the provision of the Civil Marriage Ordinance,
1952, (section 4), which in terms renders a party who has
married under it incapable during its continuance of contracting
a polygamous marriage. And in Loh Toh Met’s case it was said
that the personal law of Chinese domiciled here resulted from
their race and not from membership of any religious community.
On the face of it, then, there is nothing in the Christian Marriage
Enactment that deprives a Chinese man who marries under it
from exercising the right which he enjoys by reason of his
personal law to enter into a polygamous union with another
woman while his monogamous wife is still alive and, as his
personal law stems from race and not from religion, there can be

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no question of his earlier marriage as a professing Christian

being treated as evidence of some sort of notional change of
domicile involving some change in his personal law.”

(Emphasis added)

The “later Christian Marriage Ordinance” would be the Ordinance that

we are concerned with in this case, the Christian Marriage Ordinance
1956. It would seem that in his Lordship’s view, the 1956 Ordinance
too, did not prohibit a Christian from entering into a polygamous
customary marriage. In Re Ding Do Ca, Decd the deceased had
married one Madam Wong under the Christian Marriage Enactment
and subsequently, in 1937, he went through the form of marriage
according to Chinese custom with Madam Ngoi. The Federal Court
held that there is nothing in the Christian Marriage Enactment that
renders a party, who had married under it, being incapable of
contracting the subsequent polygamous marriage, even though the
first marriage was still subsisting.

[21] However, this does not end the analysis as to whether section 3
of the Christian Marriage Ordinance 1956 applies to preclude the
Deceased’s marriage to Linda Lim. This would depend on whether the
Deceased was a person professing the Christian religion. PW1 and
PW2 testified that the Deceased was not a practising Christian. He
was also described as a free thinker. Even if the Deceased may have
been brought up as a Christian, it does not follow that the Deceased
himself was, in later life, a person professing the Christian religion.
To my mind, the relevant point in time would be when the Deceased
sought to marry Linda Lim. Was he then a person professing the
Christian religion? Based on the testimony given in Court by his
sisters, he was not at that material time.

[22] There is then the entry in the Deceased’s application to migrate

to Australia completed in 1991. As stated above, the Deceased after

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stating the name “CAROLINE WULF” as his previous spouse, had,

inserted below the name in parenthesis “(MARRIED UNDER
CHRISTIAN MARRIAGE ORD. 1956)”. Is the Court to imply that
therefore, the Deceased became a person professing the Christian
religion in 1970 when he stated he married Caroline Wulf? I do not
think it would be correct or safe for a Court to infer, merely from this
entry, that the Deceased was a person professing the Christian religion
in 1970. It could be that Caroline Wulf had wanted a Christian
marriage. It would be wrong for the Court to speculate.

[23] Evidence to the contrary was given in the testimony of the

Defendant who said that the Deceased was a staunch Christian.
Relating to this issue, the Defendant was asked in cross examination,
“Were you married then in other customary marriages? In a Church or
anywhere? No?” The Defendant’s answer to this was, “No”. So it
would appear that the Deceased did not marry the Defendant in a
Church, even though he could, as there are provisions under section
24 of the Law Reform (Marriage and Divorce) Act 1976 to enable him
to do so. While this may not be consistent with the Deceased being a
staunch Christian, the Court should equally not infer too much from
this to conclude that the Deceased did not become a staunch Christian
later on in life. She also testified that the Deceased was given a
Christian ceremony for his funeral. This could well be true as is so
often the case, when one grows older the search for spiritual comfort
and assurance grows more urgent.

[24] The fact of the matter is, the Defendant’s testimony does not
relate to the point in time when the Deceased underwent the tea
ceremony with Linda Lim. The Deceased was twenty nine years of age
when he went through the tea ceremony with Linda Lim. The
registration of his marriage to the Defendant was in December of
1991. By then, the Deceased would have been fifty three years of age.
The Defendant in fact testified that prior to the registration of her

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marriage to the Deceased, there was a ceremony and dinner to

announce her union with the Deceased. This was on the 3 rd of
November 1989. She also testified that she met the Deceased,
probably, in 1986. That would mean the Deceased would have been
around forty eight years of age. Based on the Defendant’s National
Registration Identity Card number and her testimony, she was born in
1964. Thus in 1966/1967, the Defendant would not have been more
than 3 years old. Nevertheless, under cross examination, the
Defendant insisted that the Deceased was a staunch Christian in 1966.
She said she was told by the Deceased how he lived. There was no
specific statement by the Defendant that the Deceased told her that he
was a practising Christian at or around the time he went through the
tea ceremony in 1966/1967. Clearly, the Defendant had no personal
knowledge whether the Deceased was a staunch Christian or not at
that time.

[25] Therefore the only credible evidence available to the Court was
the testimony of the Deceased’s sisters. Accordingly, I am of the view
that the Deceased was not a person professing the Christian religion at
the time he went through the Chinese customary tea ceremony with
Linda Lim to formalise and celebrate their marriage. In addition, I
would add that no evidence was led by the Defendant to establish that
the tea ceremony was not properly conducted or not in accordance
with what is required by Chinese custom for a valid marriage.
Although the Defendant challenged the fact that the tea ceremony
took place, she did not challenge the testimony of PW1 that the tea
ceremony was undertaken to solemnise the union and marriage of the
Deceased to Linda Lim or that the tea ceremony was in any way
wrong or not according to Chinese custom.

[26] There is yet another issue that remains. Having regard to the
statement of Thomson LP in Re Ding Do Ca Decd quoted above, may
the Deceased whose father was Indian and his mother a Chinese, be

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lawfully married by going through a Chinese customary marriage?

This was not an issue raised by the Defendant. There was also no
expert evidence led to the effect that a person who is the child of
parents, one of whom is a Chinese and the other an Indian, may not
lawfully be married to a Chinese by way of Chinese customary
marriage. As the Deceased’s mother was Chinese, there could have
been sufficient racial nexus for him to wish to elect to go through a
Chinese customary marriage. However, suffice to say that there was
no evidence tendered that he may not do so.

[27] Apart from the central issue as to the Plaintiff’s status, the
Defendant had also raised an issue that this suit is a “probate action”
and there has been a failure on the part of the Plaintiff to comply with
the mandatory requirements of Order 72 of the Rules of Court 2012,
in particular Order 72 Rules 2 and 13(1). Order 72 of the Rules of
Court 2012 deals with contentious probate proceedings and sets out
certain mandatory provisions that need be complied with in a “probate
action”. A “probate action” is defined in Order 72 Rule 1(2) as, “…an
action for the grant of probate of the will, or letters of administration
of the estate, of a deceased person or for the revocation of such a
grant or for a decree pronouncing for or against the validity of an
alleged will, not being an action which is non-contentious.” Having
regard to the Plaintiff’s contentions and the prayers sought, it can be
seen that the Plaintiff is not seeking or challenging any grant of
probate or Letters of Administration or seeking a decree pronouncing
for or against any will. The Plaintiff is also not challenging the
interest of the Defendant under the Deceased’s Will. In any event,
these procedural objections could not have misled the Defendant in
any way and no objections were taken until after the trial. In the
circumstances, I am therefore of the view that this objection by the
Defendant is not maintainable.

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[28] Having regard to the foregoing, I find that the Deceased was
lawfully married to Linda Lim, having gone through a Chinese
customary marriage and performed a tea ceremony before the coming
into force of the Law Reform (Marriage and Divorce) Act 1976.
Accordingly the Plaintiff is, in my view, a legitimate child of the
marriage between the Deceased and Linda Lim.

The Defendant’s Counterclaim

[29] To her defence to the Plaintiff’s claims in this action, the

Defendant mounted a counterclaim. In her counterclaim the Defendant
seeks, inter alia, to rectify the Deceased’s Will such that her name be
included in the Will as the sole beneficiary of the Damansara Property
and of the debt due and owing by Dato’ Syed Mustaffa bin Syed
Abdullah to the Deceased in the sum of RM2,433,9000.00.

[30] In her evidence, the Defendant testified that the Deceased had,
during his lifetime, told her that she would inherit the Damansara
Property. There was also an earlier will by the Deceased dated 21 st
July 2011 in which the Defendant was devised the Damansara
Property. The Defendant believes that there was an unintentional
omission of her name in the Will in respect of the Damansara
Property. However, there was no mention that the Deceased had
intended the RM2,433,9000.00 debt owed to him to be bequeathed to
the Defendant.

[31] DW2, Jaya Selan s/o P Murugesu, testified on behalf of the

Defendant. He is an assistant to a solicitor by the name of Suppiah.
DW2 claims he attested the Deceased’s Will together with Suppiah.
Both DW2 and Suppiah’s names appear at the bottom of the Will
indicating that they attested to the Deceased signing it. DW2 testified
in his witness statement that at the time the Deceased executed the
Will, the Deceased told him that the Deceased was leaving all his

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property to his wife. DW2 also testified that he was not shown the
contents of the Will and that the Deceased had covered the contents of
the Will with a piece of paper.

[32] As for the Australian Will of 21 st July 2011, that has been
superseded and revoked by the Deceased in his Will. In the
Deceased’s Will, in respect of which grant of probate was obtained by
the Defendant, it states quite clearly in its opening lines that:

“I, SAMUEL VINCENT PONNIAH (NRIC NO: 380611-10-

5081/1185548) of No. 11A, Lorong Mempoyan Damansara
Heights, 50490 Kuala Lumpur hereby revoke all former
dispositions.”

(Emphasis added)

In regard to the debt of RM2,433,9000.00 said to be owed to the

Deceased by Dato’ Syed Mustaffa bin Syed Abdullah, there was no
mention by the Defendant or any witness that this debt would be
bequeathed to the Defendant.

[33] Prior to the Administration of Justice Act 1982 in the United

Kingdom, the view was that under the common law the Courts had no
power to rectify a will by adding words to it (see Harter v. Harter
[1873] L.R. 3 P. & D. 11 and Morrell v. Morrell [1882] 7 P.D. 68 and
Re Morris [1971] P. 62). It has been said that this is because the
Courts are “enslaved by the Wills Act of 1834” (see Re Reynette-
James [1976] 1 WLR 161 at p166 per Templeman J.). We too have
similar formalities that are imposed by our Wills Act 1959. It is said
that the Courts could only omit from a will, words which the testator
did not know and approve or where there is fraud. In The Goods of
Schott [1901] P 190, there was an application by motion to rectify a
clerical error by substituting the word “residue” for the word
“revenue”. Jeune P stated that, “I can strike out words, but I cannot

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insert anything”. Consequently the words “revenue of the said” were

struck out without any other word or words substituted. In Re
Horrocks [1939] 1 All ER 579 at 585, Sir Wilfrid Greene MR
observed that:

“The jurisdiction of the Court of Probate to grant probate of a

will textually different from the actual document signed by the
testator is a strictly limited one. If the testator himself approved
the words to which he put his signature (and the presumption is
that he approved them), those words must stand. If the words
were selected by a draftsman to whom the testator confided the
task of drafting his will, similarly the words so selected must
stand, even if the testator was ignorant of the actual words used.
The mistake of the testator, or of the draftsman employed by
him, as to the legal effect of the words used is immaterial. The
jurisdiction, where it exists, is admittedly confined to the
exclusion of words, and does not extend to the insertion of
words, since the insertion of words would run counter to the
provisions of the Wills Act. These matters are elementary, and
there is no dispute about them.”

[34] More recently, Marley (Appellant) v. Rawlings and another

(Respondents) [2014] UKSC 2, Lord Neuberger observed as follows:

“Rectification of wills

[27] Rectification is a form of relief which involves ‘correcting

a written instrument which, by a mistake in verbal expression,
does not accurately reflect [the parties’] true agreement’: see
Agip SpA v. Navigazione Alta Italia SpA, The Nai Genova and
Nai Superba [1984] 1 Lloyd’s Rep 353 at 359. It is available not
only to correct a bilateral or multilateral arrangement, such as a
contract, but also a unilateral document, such as a settlement:
see Re Butlin’s Settlement Trust, Butlin v. Butlin [1976] 2 All

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ER 483, [1976] Ch 251. However, it has always been assumed

that the courts had no such power to rectify a will: see e.g.
Harter v. Harter [1873] LR 3 P & D 11 per Hannen P and Re
Reynette-James (decd), Wightman v. Reynette-James [1975] 3
All ER 1037, [1976] 1 WLR 161 per Templeman J.

[28] As at present advised, I would none the less have been

minded to hold that it was, as a matter of common law, open to a
judge to rectify a will in the same way as any other document:
no convincing reason for the absence of such a power has been
advanced.

However, it is unnecessary to consider that point further, as

Parliament has legislated on the topic, in s. 20 of the 1982 Act
(s. 20).

[29] Section 20 is headed ‘Rectification’, and sub-s (1)

provides as follows:

‘If a court is satisfied that a will is so expressed that it

fails to carry out the testator’s intentions, in
consequence—(a) of a clerical error; or (b) of a failure to
understand his instructions, it may order that the will shall
be rectified so as to carry out his intentions.’

Section 20(2) provides that, save with the court’s permission, no

application for rectification under sub-s (1) can be made more
than six months after the grant of probate. Section 20(3) protects
executors who distribute in accordance with the terms of a will
before it is rectified after the six-month period referred to in
sub-s (2).”

(Emphasis added)

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Thus the remedy of rectifying a will in the United Kingdom became

clearly available as provided under the Administration of Justice Act
1982. The observation of Lord Neuberger in paragraph 28 of his
judgment above-cited was, in the circumstances of that case, clearly
obiter.

[35] The Court of Appeal in Singapore in the case of Cheo Yeoh &
Associates LLC and another v. AEL and others [2015] SGCA 29 was
of the view that the rectification of a will was not a remedy available
in Singapore. In that case, it was submitted on behalf of the
Respondent that:

“(b) The cases cited by the Appellants in support of their

position concerned the English situation where rectification is
available as a remedy for a defective will. Singapore has no
equivalent of that remedy and the only way in which they could
obtain relief would be to seek remedy under the tort of
negligence.”

In its decision, the Court of Appeal observed as follows in relation to

the comments made in Walker v. Geo H Medlicott & Son (a firm)
[1999] 1 All ER 685:

“27 We would observe that the comments in Walker, which warn

against manufactured claims, were made in the context of the
English position where the remedy of rectification is available.
No such remedy is available in Singapore. Moreover, the
comments there were not made in relation to the question of
liability for negligence but pertained rather to the quantum of
damages due to a failure to mitigate. In Walker, the facts
concerned a plaintiff who inherited a one-sixth share of the
testatrix’s house. Contending that the testatrix led him to believe
that the house would be devised to him, the plaintiff sued the
solicitors saying that they were negligent in effecting the

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testatrix’s instructions. The English Court of Appeal upheld the

decision of the trial judge (who dismissed the claim) on two
grounds.”

The Court of Appeal of Singapore further observed that:

“45 Second, there is again no basis for the Appellants to seek to

draw a parallel between the foreign cases in which the claimants
failed to avail themselves of the remedy of rectification and the
present case in which the Respondents allegedly failed to obtain
the cooperation of the Unintended Beneficiaries in giving effect
to the New Will. What a person is legally obliged to do is
distinct from what might be the moral thing to do. While in the
English and Canadian cases the remedy of rectification was
available to the claimants at law, the recourse of obtaining
cooperation from the Unintended Beneficiaries in the present
case is hardly of the same nature as the relief of rectification
which is available in those jurisdictions. Here, all that the
Respondents could do as a matter of mitigating their losses
would be to put in a request to the Unintended Beneficiaries to
cooperate with them in giving effect to the New Will. But there
was no obligation on the part of the Unintended Beneficiaries to
cooperate and accede to the request. Since the Judge had found,
and we have affirmed, that the Meeting did take place and at the
Meeting, the Unintended Beneficiaries were asked to give up
their windfall gains but declined to do so, we are of the view
that the Respondents could not have distributed the Singapore
Estate according to the division spelt out in the New Will.”

(Emphasis added)

[36] Amendments have been made to the Wills Act (Chapter 352) of
Singapore to cater for the rectification of a will. We, however, do not
have the equivalent of section 28 of the Singapore Wills Act (Chapter

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352) or section 20 of the United Kingdom, Administration of Justice

Act 1982.

[37] Learned counsel for the Defendant did make reference to the
Specific Relief Act 1950, contending that the word “instrument” used
in therein would include a will. This then would render a will
amenable to rectification under section 30 of the Specific Relief Act
1950. This contention was not fully explored in the submissions of
learned counsel. Having regard to section 30, I am of the view that
wills do not come within its ambit.

[38] Section 30 of the Specific Relief Act 1950, together with the
illustrations given states as follows:

“When instrument may be rectified

30. When, through fraud or a mutual mistake of the parties, a

contract or other instrument in writing does not truly express
their intention, either party, or his representative in interest,
may institute a suit to have the instrument rectified: and if the
court find it clearly proved that there has been fraud or mistake
in framing the instrument, and ascertain the real intention of the
parties in executing the same, the court may in its discretion
rectify the instrument so as to express that intention, so far as
this can be done without prejudice to rights acquired by third
persons in good faith and for value.

ILLUSTRATIONS

(a) A, intending to sell to B his house and one of three

godowns adjacent to it, executes a conveyance prepared by
B, in which, through B’s fraud, all three godowns are
included. Of the two godowns which were fraudulently
included, B gives one to C and lets the other to D for a

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rent, neither C nor D having any knowledge of the fraud.

The conveyance may, as against B and C, be rectified so as
to exclude from it the godown given to C, but it cannot be
rectified so as to affect D’s lease.

(b) By a marriage settlement, A, the father of B, the

intended wife, covenants with C, the intended husband, to
pay to C, his executors, administrators, and assigns, during
A’s life, an annuity of RM5,000. C dies insolvent and the
official receiver claims the annuity from A. The court, on
finding it clearly proved that the parties always intended
that this annuity should be paid as a provision for B and
her children, may rectify the settlement and decree that the
official receiver has no right to any part of the annuity.”

Section 29 of the Specific Relief Act 1950 provides, expressly, that

wills fall within the provisions under Chapter II. Chapter II caters for
specific performance of contracts and section 29 provides that:

“Application of preceding sections to awards and

testamentary directions to execute settlements

29. The provisions of this Chapter as to contracts shall,

mutatis mutandis, apply to awards and to directions in a will or
codicil to execute a particular settlement.”

In addition, the term “settlement” is defined in the Act to exclude a

will or codicil. The remedy of rectification is to be found under
Chapter III of the Act.

[39] Section 30 of the Specific Relief Act 1950, to my mind,

contemplates contracts and instruments involving 2 or more parties.
Section 32 does not, in my view, extend to rectification of wills and
no authority to the contrary has been provided to suggest otherwise.

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[40] Notwithstanding the foregoing, I am also not persuaded that

merely because the Deceased may have told the Defendant and DW2
that he had intended to leave all his property to the Defendant, the
Deceased has either erroneously or unintentionally left out the
Defendant’s name as beneficiary to the Damansara Property and/or his
residuary estate. It could be said that if the Deceased had not intended
to remove the Defendant as a devisee of the Damansara Property, he
would not have executed the Will, which was executed subsequent to
the Australian Will of 21 st July 2011, in which the Defendant was
devised the Damansara Property. It could also be that the omission
was in fact an omission to substitute the Plaintiff for the Defendant
but the Deceased had unintentionally omitted the Plaintiff’s name.
There can be various reasons why no devisee was specifically named
in clause 2 of the Will. We will never know why this is so. Was it
intentional on the part of the Deceased or was it an erroneous
omission? If it was an unintentional omission, did the Deceased intend
to insert the name of the Defendant, the Plaintiff or someone else?
The machinations of the mind are legion. These are questions the
answer to which can lie only in the realm of speculation. However, it
is upon evidence that Courts of law act, not speculation. Perhaps one
of the reasons for the traditional reluctance of Courts to rectify a will
by adding words to it is in the fact that it is a unilateral document
executed by a person who is no longer alive. While the Courts are
prepared to remove words in a will that the testator did not know or
approve, which word or words would be visible for the Court to
examine in the context of the will, words that are said to have been
omitted are quite another thing. There is nothing to suggest that a
testator’s diplomacy to an expectant beneficiary would never stray
beyond the painful truth. A testator is very much entitled to decide to
whom he gives or does not. Indeed, clause 2 of the Will may well
have been intended to be exactly the way it appears for reasons best
known to the Deceased. These concerns are to my mind, reasons why

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a Court of law should be reluctant, or slow, to rectify a will, even if it

had the power to do so.

[41] In light of the foregoing, I am of the view that the Court does
not have the power to insert the Defendant’s name into the Will as
sought by the Defendant. I am also of the view that even if the Court
does have the power to rectify the Will, I am not convinced that there
is any evidence sufficient to prove that the Deceased had probably
intended to insert the Defendant’s name in the Will in the manner
claimed by the Defendant. Accordingly, I hold that the Defendant’s
counterclaim is not made out and therefore dismissed.

Conclusion

[42] As the Defendant’s counterclaim has not been allowed, the

Deceased’s Will stands in its present form. Having regard to clause 2
of the Will, it is clear that it does not state to whom the Damansara
Property is bequeathed. Accordingly, that devise fails and the
Damansara Property defaults into the residuary estate of the Deceased
and falls within the ambit of the Distribution Act 1958.

[43] Section 8 of the Distribution Act 1958 states as follows:

“Application to cases of partial intestacy

8. Where any person dies leaving a will beneficially

disposing of part of his property, the provisions of this Act shall
have effect as respects the part of his property not so disposed
of, subject to the provisions contained in the will:

Provided that the personal representative shall, subject to

his rights and powers for the purposes of administration, be a
trustee for the persons entitled under this Act in respect of the
part of the estate not expressly disposed of unless it appears by

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the will that the personal representative is entitled to take such

part beneficially.

The Deceased’ Will does not cater for his residuary estate – it has no
residuary clause. As such, assets of the estate that are not specifically
bequeathed or devised to anyone will fall within the ambit of the
Distribution Act 1958 and be distributed according to the provisions
of that Act. Section 8 also sets out the consequence of properties of a
deceased not disposed under a will and the obligation of the personal
representative. The term “personal representative” is defined under
section 2 of the Probate and Administration Act 1959 where it is
stated:

““personal representative” means the executor, original or by

representation, or administrator for the time being of a deceased
person, and as regards any liability for the payment of death
duties includes any person who takes possession of or
intermeddles with the property of a deceased person without the
authority of the personal representatives or the Court;”

The Defendant is the executrix of the estate of the Deceased, having

probated the Will and having obtained a grant of probate on the 29 th
of May 2015. Accordingly the Defendant, as the executrix of the
estate of the Deceased and thus personal representative, is constituted
a trustee of the residuary estate of the deceased for the benefit of inter
alios the Plaintiff by reason of the Plaintiff’s entitlement under
section 6 of the Distribution Act 1958, as the lawful daughter of the
deceased.

[44] In addition to the legitimacy of the Plaintiff, which provides the

foundation for the reliefs sought, the Plaintiff has also prayed for
accounts to be provided by the Defendant. The account sought is in
regard to the management of the estate of the deceased since grant of
probate, especially in respect of the residuary estate of the deceased.

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An account was also sought of the Defendant as to the income derived

from the house in Kuala Lumpur and Australia. However, no evidence
was led or basis made out to warrant these orders sought. Indeed, the
basis or justification for these orders were not addressed by learned
counsel for the Plaintiff in his submissions. I would add that there is
in fact no legal or factual justification for accounts made out in the
circumstances of this case.

By reason of the foregoing:

(i) It is declared that the Plaintiff, Lynette Mei Li Ponniah is

a legitimate daughter of Samuel Vincent Ponniah
(deceased) being an issue of the lawful marriage between
Samuel Vincent Ponniah (deceased) and Lim Kim Yoke
(f);

(ii) It is declared that the Plaintiff, Lynette Mei Li Ponniah is

entitled as beneficiary to the residuary estate of Samuel
Vincent Ponniah (deceased) in accordance with the
provisions of the Distribution Act 1958;

and

(iii) the Defendant’s counterclaim is dismissed.

Having heard submissions by counsel for the parties on the issue of

costs I order that costs of RM40,000.00 be awarded to the Plaintiff
subject to the payment of the allocatur fee of 4% of the costs awarded.

Dated: 9 OCTOBER 2018

(DARRYL GOON SIEW CHYE)

Judicial Commissioner

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High Court of Malaya

Kuala Lumpur
(Civil NCvC 2)

COUNSEL:

For the plaintiff - Stanley Sinnappan & Aston Paiva; Vazeer Akbar
Majid & Co
No. 10 Jalan 14/48 46100 Petaling Jaya Selangor
Tel : 03-7877 7000
Faks : 03 7877 6677)

For the defendant - MS Raman; Chandran Nair & Associates

No. 10(1 st Floor), Jalan 52/10
46200, Petaling Jaya
Selangor
Tel : 03-7954 8227/79558227
Faks : 03-79568227)

Case(s) referred to:

Re Lee Siew Kow, Deceased Yeo Siew Neo (W) v. Gan Eng Neo (W) &
Ors [1952] 1 MLJ 184

Re Loh Toh Met, Decd Kong Lai Fong v. Loh Peng Heng [1961] 1
MLJ 234

Re Ding Do Ca, Decd. [1966] 2 MLJ 220

Azmi Mohamad Azam v. Director of Jabatan Agama Islam Sarawak &

Ors [2016] 6 CLJ 562

David Wee Eng Siew v. Lim Lean Seng & Anor [2014] 1 CLJ 299

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In The Goods of Schott [1901] P 190

Harter v. Harter [1873] L.R. 3 P. & D. 11

Re Reynette-James [1976] 1 WLR 161

Morrell v. Morrell [1882] 7 P.D. 68

Re Morris [1971] P. 62

Re Horrocks [1939] 1 All ER 579

Marley (Appellant) v. Rawlings and another (Respondents) [2014]

UKSC 2

Cheo Yeoh & Associates LLC and another v. AEL and others [2015]
SGCA 29

Walker v. Geo H Medlicott & Son (a firm) [1999] 1 All ER 685

Dorothy Yee Yeng Nam v. Lee Fah Kooi [1956] MLJ 257

Legislation referred to:

Specific Relief Act 1950, ss. 29, 30, 32

Distribution Act 1958, ss. 6, 8

Law Reform (Marriage and Divorce) Act 1976, ss. 24, 109

Wills Act 1959, s. 5

Evidence Act 1950, ss. 91, 92

Probate and Administration Act 1959, ss. 2, 30, 34

Rules of Court 2012, O. 38 r. 2, O. 71, O. 72 rr. 1(2), 2, 13(1)

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Civil Marriage Ordinance, 1952

Christian Marriage Ordinance 1956, ss. 2, 3

Administration of Justice Act 1982 (UK), s. 20

Others referred to:

Black’s Law Dictionary, 8 th Ed., Thompson West, (1999); p.992:

“marriage”/ “common-law marriage”; p.1336: “residuary clause”

Halsburry’s Laws of England, 4 th Edition, Volume 50: paras 247, 365

and 370 – 372

Family Law in Malaysia and Singapore, Datuk Professor Ahmad

Ibrahim, Malayan Law Journal Pte. Ltd., 2 nd Ed. (1984): pp. 12, 45
and 65-67

Pollock & Mulla Indian Contract and Specific Relief Acts, Vol. II,
11 th Ed (1994), pp. 1343-1349

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