TUTORIAL QUESTION

QUESTION 1

Jagjit had always intimated his intentions of leaving all his assets to his 3 nephews and 2
nieces in equal shares except for the house which he said would be left to Felisa in
consideration of her taking care of him. However, earlier this year Jagjit suffered a spinal
injury, which entailed a long stay in the hospital where a kindly nurse, Sally attended to him.

One night, when he was in considerable pain he asked Sally to help him write his Will. He
dictated the provisions to her appointing his eldest nephew Tong as his executor and leaving
all his property to his 3 nephews and 2 nieces in equal shares except for the house which he
said “I leave to you my dearest Felisa”. As his speech was a little unclear Sally heard it as “I
leave to you my dearest” and wrote it accordingly.

At Jagjit’s request, Sally signed the Will using her own name in the presence of two nurses
Ramlah and Sophia. While Ramlah was signing, Sophia was called away to attend to another
patient. She came back 15 minutes later, whereupon Sally asked her to sign just below
Ramlah’s signature. Jagjit died some 5 hours later. When Felisa arrived at the hospital, Sally
informed her of Jagjit’s Will.

Felisa and her siblings who are shocked and upset seek your advice.

Answer:
X mentioned Felisa was the spouse of Jagjit.

Issues – (start with formalities)

Formalities of a Will
(1) In writing
(2) Testator = Jagjit, the person who signed the will is Sally.

1st Issue: Whether the validity of will could be challenged on the ground that Sally signed the
will on behalf of the testator, Jagjit.
Ans: s. 5(2) of Wills Act – “shall be signed by the Testator or by some other person in his
presence or his direction”
In the Goods of James Clark
Person other than Testator may also sign on behalf of the Testator. But, it must be made in
the presence of the Testator and under his direction.

2nd Issue: on the ground that Sophia was absent when Ramlah was siging the will
s. 5(2): “shall subscribe the will in the presence of T…”
The witnesses must then subscribe/sign the will in the presence of the Testator. (btw W and
T) However, there is no requirement they must sign at the same time in each other presence.
(btw W and W)
Dr K Shanmuganathan v Periasamy Sithambaram Pillay

Requirements
(1) Testamentary capacity
3rd Issue: s. 3 Wills Act – “sound mind”
Does bodily pain will affect the mind?
Spinal pain will not affect the mind. However, Jagjit’s speech was not clear and the will was
made closely to death. Hence, from the facts, it could be seen that the pain was so serious that
it had affected the mind of his.

(2) Suspicious circumstances

4th Issue: suspicious circumstances*** (most important issue)

(a) The person who wrote the will was Sally and she had benefited the properties.
Barry v Butlin – First, the onus probandi lies in every case upon the party propounding a will
and he must satisfy the conscience of the court that the instrument so propounded is the last
will of a free and capable testator. (executor has the burden and should call for witness)
Second, that if a party writes or prepares a will, under which he takes a benefit, that is a
circumstance that ought generally to excite suspicion of the court, and call upon it to be
vigilant and jealous in examining the evidence in support of the instrument, in favour of
which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied
that the paper propounded does express the true will of the deceased.

(b) Sally had no relationship to Jagjit, but only a kindly nurse.

Conclusion:

QUESTION 2

In July 2014, Carlos a wealthy industrialist suffered a massive stroke rendering the left half
of his body paralysed. He recovered somewhat subsequently and made a Will. He has 3
children by his 1st wife Jojie (who had died 10 years ago), David, aged 25 years, Sharon aged
24 years and Cheral aged 23 years. Carlos also has adopted daughter, Evelyn, aged 18 years
whom he has been looking after ever since her parents died in a car accident 10 years ago.
However, Evelyn was never formally adopted by the family. In 2004, Carlos married Ann
(2nd wife). There are no children of the marriage.

In his Will, Carlos bequeathed RM70,000/- to David, Sharon, Cheral and Evelyn equally. He
gave Ann, the family home and the residue of his estate worth RM50,000/-. He also
appointed Ann as the Executrix of his Will.

Carlos died a month after executing the Will. David, Sharon, Cheral and Evelyn are unhappy
with the Will, which purports to give Ann the bulk of Carlos’s estate. Ann in turn wants to
challenge the validity of the gift to Evelyn.

Discuss.

1st Issue:
In the will, Carlos directly named his children, instead of “children”. Hence, the definition of
child under Child Act is irrelevant.
Even Evelyn was never formally adopted, as long as the name of hers was in the will, she is
entitled to the property.

2nd Issue: Could Ann be executor and beneficiary at the same time?
S. 23 Wills Act – Executor could be the beneficiary
s. 9: Only W could not be the Beneficiary.

3rd Issue: suspicious circumstances?

Difficult to prove as no facts to support (unless the facts provided so)

4th Issue: