OCTOBER 2009 PART C, QUESTION 1(i)

The issue is on the validity of the will made by Morgan. There are several statutory formalities in execution of will. These requirements must be fulfilled in order for the will to be valid. The testator must be at least eighteen years old as stipulated under the Age of Majority Act 1971 in West Malaysia and Sarawak, whereas in Sabah, the age of majority is twenty-one years old as stated under Section 4 of the Wills Ordinance 1953 The testator must be of sound mind (testamentary capacity) as provided by Section 3 of the Wills Act 1959. First requirement is the will must be in writing. Section 5 of Wills Act 1959 (WA) stated that the will may be handwritten, either by testator or others, printed, typed-written or printed words. In Re Moore, it said that the will may be written by ink or pencil or combination of both; so long its permanent. Second requirement is the will must be signed. Method of the signature as in Section 5(2) of WA where: the will must be signed by the testator or by some other person in his presence and by his direction; such signature shall be acknowledge by the testator as the signature to his will. Section 5 (2) further explain that the signature or mark of the testator must be at the foot or end of the will which also means that nothing can be add below the testator signature. In Re Salman, it was held that the signature to be in valid if was signed at the top. However, subject to proviso Section 5(2), the signature can be made at any position as long as subject to circumstances provided under Section 5 (2)(a) to (e). In addition, the will must be signed with intention and not under influence of alcohol, insane, unconscious, under duress and fraud. However, in special circumstances, the testator doesnt need to sign his name and it has been held that the will is valid with initials, a thumb print, an assumed name and a stamped name. the signature must be place at the paper or envelope containing the will.

The third requirement is attestation. Section 5(2) of WA stated there must be minimum two witnesses. The witness need to see or attest and then signed, the testator must see and voluntarily to see or be aware and attest. The testator must sign in the presence of two witnesses. It is as in the case of Brown v Skirrow where the testator signed in front of witness A, the first shop attendant, while the second shop attendant was serving a customer and was unaware of what was going on. The court held that the will was not properly attested. It had not been signed in the presence of second witness and he had no idea what was going on at the time. Applying to the question, the will are not dated and there is no administrator for the will. However, the requirement as in Section 5(2) of WA, the important is for the will to be signed, in writing and attested. Section 6(2) of WA stated that every will executed in manner hereinfore required shall, so far as respects the execution and attestation thereof be valid execution of a power of appointment by will, notwithstanding that it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. This means that there is a need of executor of the will. There is no requirement of date. Thus, the will are valid if the three requirements are fulfilled and executor was appointed. However, in Morgans will, there is no executor appointed. Kevin and David may apply to the court for the executor of the will and the will shall deemed to be valid by then.

QUESTION 1(ii) The issue that arises here is regarding the disposition of will. The construction of will serve the purpose to assist court in determining the true intention of the court. The purpose of rules of construction is to ascertain and give effect to the intention of testators so as to save the will. The rules of construction is: (1) the object of the court of the court is to ascertain the testators intention;(2) the words and expression used in the will are to be taken in their ordinary grammatical sense;(3) the will must be read as a whole and (4) technical words are given their technical meaning. The first issue is regarding Morgans will that he wanted t o give his gold watch to his uncle but it was discovered later that he has two uncle which is Merlin and Munroe. The question that arises here is which uncle entitled to Morgans gold watch. Where there is doubt concerning the persons or things to which the will refers, it is permissible to consider the surrounding circumstances and the extrinsic declaration of the parties in order to resolve the doubt. However, this is only applicable in the last resort where the court has found difficulty in applying the words used by the testator to the existing facts. The Armchairs principle is the principle use in determining the evidence of surrounding circumstances. The decided cases usually concern the identity of the beneficiaries or subject matter. In Charter v Charter, the testator leaves a will where he appointed my son, Foster Charter as his executor and give him his residuary estate. He also directed to him to pay annuity and allow maintenance to his mother so long as they reside together in the same house. Testator had a son name Foster Charter but the son died some years before the testator made his will and he could not be the son referred to. At the time the will was made, testator had two sons, one name William Foster Charter and the other name Charles Charter. Probate was granted to William Foster Charter, Charles applied for revocation of the grant on the ground that he, Charles, was the person name in the will. The judge admitted evidence of the surroundings

circumstances when testator made his will, i.e. that Charles was living at home with his parents and working on testators farm, while William had lived away from home for some years and seldom visited testator. Further, testator didnt call him Foster but always William or Willie. The judge decided in favor of Charles. William appeal to the

House of Lords. The four members were evenly divided. Lord Chemlsford and Lord Hatherly thought that the will was not uncertain or ambiguous. They thought that the reference to Forster Charter was a clear reference to William Forster Charter. But Lord Cainrs and Lord Selbourne upheld the decision of the judge. They consider that the provision in the will under which the executor was directed to pay the annuity and allow for maintenance to testators widow so long as they resided together in the same house did not apply to William and so there was uncertainty of ambiguity. Once uncertainty or ambiguity was established, evidence of the circumstances surrounding the testator at the time he made his will could be admit under the armchair principle and this evidence pointed clearly to Charles. Charles won the case. Applying to the question, they (Kevin and David) can apply to the court to determine the intention of testator on which uncle will receive the gold watch like in the case of Charter v Charter. The court may use the armchair principle to determine this to see whether the gold watch is meant for Munroe or Merlin. The second issue is regarding the money that in RHB bank which in the will said RM100,000 while the amount in the saving account stands at RM50,000. Gift by will and inter vivos happen when a person make disposition or transfer of an interest in his property by will and with intention that it become operative after his death. Specific gifts is gift that is specific or particular. There are two characteristic of specific gift which is it forms a specified part of testators estate at time of death and the specified part can be severed from the rest of the estate. Specific legacy is where the gift specifically describe so as to be readily ascertainable. It take the priority over general legacies and are liable for abetment only if the assets are insufficient for the payments of debts. Applying to the issue stated above, Morgan had stated specifically that RM100,000 in my RHB bank saving account to my wife, Helen. Thus, it a specific gift. However, there only RM50,000 in the savings account upon his death. His wife can still receive the said money if after the payment of debt, the money still have the balance and that money (or the gift) will not be liable for abatement if so. The third issue is Morgan in his will stated that he wanted to give his antique vase to his dearest friend Anne but Anne died in December 2008, leaving behind a son

named Terry. A gift may fail under some circumstances. One of the circumstances is lapse. It means that the beneficiary predeceased the testator. According to Section 19 of WA, lapse refers to the failure of testamentary gift arising owing to the death of the devisee or legatee in the testator lifetime. If the will contain no residuary devise, the beneficial interest in the property devolves upon the tes tators statutory next of kin. In the case of Elliot v Davenport, the general rule stated the beneficiary should survive the testator in order to take benefit, otherwise the gift will lapse. Applying to the third issue, Anne had predeceased Morgan. Anne had died in December 2008 while Morgan died in April 2009. With the virtue of Section 19 of WA, the gift will fail due to lapse. In addition, her son Terry also not entitle for the gifts as stated by the s.19, the testators statutory next of kin only can have the gift and Terry is not testators next of kin as he is only her dearest friends son. The effect of lapse is the property comprised in a specific devise which lapses falls into testators residuary real estate. The fourth issue is regarding to the will which cites, my 10,000 shares to my nephew, Robert. While during the will prepared for probate, it was found that Morgan sold 5,000 shares in Tenaga Nasional in January 2008 and bought 5000 shares in Telecom in February 2008. As stated above, the rules of construction is: (1) the object of the court of the court is to ascertain the testators intention;(2) the words and expression used in the will are to be taken in their ordinary grammatical sense;(3) the will must be read as a whole and (4) technical words are given their technical meaning. For the first rule, in case of Perrin v Morgan, the fundamental rule in construing the language of the will is to discover the meaning of the words intended by the testator when it read as a whole. In some extrinsic evident, i.e. evidence not contained in the will is admissible to assist in the wills interpretation but the language of the will is central to its construction. As for the second rule, in Shore v Wilson, it is prima facie the words and phrases are given their ordinary grammatical sense. In the admissibility of extrinsic evidence, the test in order to admit evidence of surrounding circumstances is in Boyes v Cook where the test so called Armchair Principle is stated as, the court has the right to ascertain all the facts which were known to the testator at the time he made his will. And thus the place itself in the testators position, in order to ascertain whether there exist any person or thing to which the whole description given in the will can be or

reasonably, and with sufficient certainty, applied. If the armchair principle doesnt resolve the problem, extrinsic evidence of testators dispositive intention is admissible. The case of Re Jackson illustrates the way in which evidence of surrounding circumstances may reveal an ambiguity and render admissible evidence of a testators intention, where a testatrix had by her Will given her residuary estate to her two brothers and two sisters and her nephew Arthur Murphy in equal shares. Evidence was admitted of facts and circumstances know to the testatrix when she made her will. This evidence showed that the testatrix had two legitimate nephews called Arthur Murphy and there is another person of the name Arthur Murphy who was illegitimate son of a sister of the testatrix. Both of the legitimate nephews answered the legatee description exactly. There was therefore, an ambiguity which rendered admissible extrinsic evidence of testatrixs intention. This evidence satisfied the court that it was the illegitimate nephew whom the testatrix had intended to benefit and she had therefore meant by nephew is illegitimate son of her sister. If no such evidence is available, the uncertainty cannot be removed and the gift is void for uncertainty. Applying to the problems, it is ambiguous of the shares that Morgan wanted to give to her nephew Robert. Morgan only has 5000 shares in Telecom as before his death. Thus, this maybe the shares that she meant. However, the amount of shares is not 10,000 as stated but actually half of the said amount. Where there is uncertainty and if there no extrinsic evidence, the gift shall become void.

QUESTION 1(iii) The issue here is whether there circumstances that may make it possible for John to replace Darren as the trustee. During the operation of trust, there are circumstances when the express or statutory power to remove the existing trustee and to appoint new trustee in replacement of the removed or discharged trustee. First, when the trustee is dead. Section 40(1) of Trustee Act (TA) provided that under this provision that death to be one of the grounds to remove trustee from office and appoint a new one. However, this is not applicable if all intended trustee died before the testator. Second, the same provision also provided that trustee can be removed if he remained outside the country for a period of 12 months and a new trustee can be appointed in his place. In Ligar Fernandez v Eric Claude, it was illustrated that the rule of 12 month must be observed strictly. The period of 12 month must run continuously, if it doesnt, the trustee cannot be removed under this ground. Third, the trustee desired to be discharged. Section 40(1) of TA stated that trustee may retire from the trust provided that it is done in writing with the approval of co-trustees or the court. And if the trustee decided to retire under this section, the retiring trustee must find a replacement. In Re Cockburns Will Trust, any trustee that wishes to retire must find replacement for his office so as not to affect the operation of trust. Therefore, it is mandatory for him to find a new trustee in his stead. However, Section 43(1) of TA allows trustee to retire without the need to find replacement and this must be done in writing with the consent of co-trustee. Fourth, Section 40(1) of TA provides that refusing to act is one of the grounds to remove a trustee and appoint a new trustee in his stead. In Ligar Fernandez v Eric Claude, court held that a trustee is considered refusing to act when his action, or inability to perform the action, is endangering his discharge of duty as trustee. In his case, the court held that the trustee who remains outside Malaysia for long period has caused him to unable to perform his duty as trustee and thus, can be removed as a refusing trustee. Fifth, the same Section provided a trustee unfit to act can be removed. In Re Roche, it was held that a trustee can be removed if he is a bankrupt. This is due

to being a bankrupt, he is unable to deal with the property as he no longer possess the legal capacity to do so, he is therefore unfit to act in the execution of the trust duty. Lastly, trustee incapable of acting. In Re Lemans Will Trust, the trustee was removed because his physical condition renders him incapable of discharging his duty as trustee due to his physical condition. Section 40(2) of TA recognized trust instrument to give power to removal of trustee. The nature of the power is stated in IRC v Schroeder where it stated that power of removal are fiduciary power and must be exercise in best interest of the trust and its beneficiary. Applying to Kevin and Davids situation, they can remove Darren under statutory provision of Section 40(1) of TA. One of trustee duty is to act of the best interest of beneficiaries. Kevin and David refused to accept Darren as the trustee as there was hostility between them, which began shortly before Morgan's death. This shows that Darren doesnt act for the best interest of the beneficiaries. Kevin and David may apply to the court regarding this matter and asked for the removal of the trustee. Section 45(1)(b) of TA give powers to remove trustee against his will. However, the court usually reluctant to do so if there is provision or express power as alternative. As conclusion, Kevin and David can use the statutory provision to remove Darren from being a trustee and replace him with John. However, if there no other way to remove him, they can apply to the court as the court have the power to remove trustee as in Section 45(1)(b) of TA.