Course Code:

LAWS 2240, 2021/2022

Course Name:

LAW OF PROBATE

Course Instructor:

DR AKMAL HIDAYAH BINTI HALIM

OPINION WRITING

By:

NUR ALIYA BINTI ZILFALIL (1923784)

NASHA DZULAIKHA BINTI DZULKARNAEN (2010984)

Dear Donna Tan,

The following discussions are to ascertain the position of your father’s will and the
testamentary gifts to all the beneficiaries as well as the distribution of your father’s estate.

The facts mentioned that Irene is a junior to Daniel. And that the medical evidence could
not determine the exact order of Daniel’s and Irene’s death. The will states “I give to my lovely
wife, Irene all my money in Mybank account and our house in Namatada Road”

The first issue that needs to be discussed is whether Irene survived Daniel?

In the case of simultaneous death between husband and wife, we shall refer to both section
2 of Presumption of Survivorship Act 950 and section 6(3) of Distribution Act 1958: Section 2:
“In all cases where two or more persons die in circumstances rendering it uncertain which of
them survived the other or others, such deaths shall (subject to any order of the court) for all
purposes affecting the title to property be presumed to have occurred in order of seniority and
accordingly the younger shall be deemed to have survived the elder.” Section 6(3): “When the
intestate and the intestate's husband or wife have died in circumstances rendering it uncertain
which of them survived the other, this section shall, notwithstanding any rule of law to the
contrary, have effect as regards the intestate as if the husband or wife had not survived the
intestate.”

To apply to your case, even if this case is of husband and wife, Daniel did not die an
intestate since he has left a valid will. This means that the Distribution Act could not be applied.

Therefore, according to the Presumption of Survivorship Act, Irene being a junior to

Daniel, has survived him. Which brings us back to the will that leaves Irene with the RM1.25
million and the house in Namatada road. In conclusion, Irene survived Daniel and the gifts are
valid for Irene. These gifts will be given to you as Irene’s daughter along with Jimmy’s daughters
Jasmine and Bella as Jimmy is deceased.

Next in Daniel’s valid will, it was stated that “I give to my grandchildren, Jasmine, Bella
and Mike all the money in Hong Kong Bank to be shared equally among them.” The total
amount of money Daniel kept in Hong Kong Bank is RM1,200,000. Since it is in the provision
of a valid will, we must follow the wishes of the testator. Applying it to this case, RM1,200,000
divided by 3 is RM400,000 thus Jasmine, Bella, and Mike get RM400,000 each from Daniel’s
estate.

The third provision in Daniel’s valid will stated that he is giving RM500,000 each to you
and Jimmy. As the will is valid and there is no uncertainty in the will, you will receive
RM500,000 and Jimmy’s RM500,000 will be given to his children Jasmine and Bella as Daniel
is also survived by them.

Moving forward, The facts showed that there was a photograph attached to the valid 2019
will with the writings “This is the photo of my second wife and my son. I love them so much. I
want them to have all my money in Hong Kong Bank in equal proportion". Daniel’s signature

1
together with his two friends’ signatures were found at the end of the sentence which was dated
on 31st August 2021.

This raises the issue of whether the second wife is a valid beneficiary?

Since it is an alteration to the valid 2019 will, we may refer to Wills Act 1959 section 15
that reads as “No obliteration, interlineation or other alteration made in any will after the
execution thereof shall be valid or have any effect except so far as the words or effect of the will
before such alteration shall not be apparent”. Besides that, we must also refer to Law Reform
(Marriage and Divorce) Act 1976 section 6(2), “If any male person lawfully married under any
law, religion, custom or usage shall during the continuance of such marriage contract another
union with any woman, such woman shall have no right of succession or inheritance on the death
intestate of such male person.”

To apply to your case, the 2021 will is overlapping with the valid 2019 will. Referring to
the Wills Act provision, the 2021 will, which is an alteration, shall be invalid.

Moving on, regarding the remaining estates left by Daniel which are the Audi car worth
RM150,000, a new Mercedes worth RM400,000 and the remaining RM500,000 from his
Ambank account, we must refer to the Distribution Act 1958 as Daniel had decided that his
remaining estates to be distributed according to the rules of intestacy so even though Daniel did
not die intestate, his remaining estates must be distributed according to the section 6 of the
Distribution Act 1958 to lawful beneficiaries.

As Daniel died leaving his parents, second wife, children and grandchildren, he is
considered someone that dies leaving a spouse, issue and parents as they are all alive. In the Act,
it is mentioned in Section 6(g) if an intestate dies leaving a spouse, issue and parent or parents,
the surviving spouse shall be entitled to one- quarter of the estate, the issue shall be entitled to
one- half of the estate and the parent or parents the remaining one-quarter;. Therefore, Daniel’s
parents Mary and Ronnie and his second wife will receive one-quarter of the remaining estate.
Next, you, Mike, Jasmine, Bella and his son with his second wife will get half of the remaining
estate. The total worth of the remaining estates is RM1, 050, 000 so Daniel’s parents will receive
the amount of RM262,500 to be shared together. Daniel’s second wife will also receive the
amount of RM262,500. Then, the remaining one-half of the estate will be shared equally among
you, Mike, Jasmine, Bella and his son with his second wife. This is because you guys are
Daniel’s issue therefore each of you will get around RM105,000 each.

Fortunately, you are considered as Daniel’s illegitimate child with Irene as you are
legitimated by your parents’ subsequent marriage as provided in Section 4 of the Legitimacy Act
1961 thus you are eligible for intestacy. Moreover, based on Section 3 of the Distribution Act
1958, Daniel’s son with his second wife is eligible to receive the remaining estate as he is a
legitimate child that was born from polygamous marriage solemnised.

All in all, Daniel’s first will which was made on 20th January 2019 is valid and must be
fulfilled. You alongside your grandparents, child, Jimmy’s child and Daniel’s son with his second
wife will get your parts from the remaining estates besides the testamentary gifts from Daniel.