PART III CHAPTER ONE

Dr Ramy Bulan

1.NATURE OF WILLS AND FORMALITIES IN THE CREATION OF A

WILL

Reading

Barlow, King & King, Wills Administration and Taxation (Sweet &
Maxwell, 1997) Ch 2
Kerridge, R., Parry & Clark: The Law of Succession (Sweet & Maxwell,
1996) Ch 5
Margreaves - Jones, C., Mellows: The Law of Succession
(Butterworths, 1993) Chs 5 -7

1.1 Types of estates and administration

(a) Testate - deceased died leaving a will

(b) Intestate - deceased died without leaving a will

1.2 Benefits of making a will

See: S 35 Probate and Administration Act 1959

Cases
R v Tan Ghee Kooi [1958] 1 MLJ 1
Foster v Bates (1843) 12 M&W 226
Meyappa Chetty v Subramaniam Chetty [1916] 1 AC 603, per
Lord Parker at 608-9

It is quite clear that an executor derives his title and authority from
the will of his testator and not from any grant of probate. The
personal property of the testator, including all rights of action, vests
in him upon the testators death, and the consequence is that he can
institute an action in the character of executor before he proves the
will. He cannot, it is true, obtain a decree before probate, but this is
not because his title depends on probate, but because the
production of probate is the only way in which, by rules of the court,
he is allowed to prove his title.

1.3 Formalities

Sections 3 - 5 Wills Act 1959

1.3.1 Capacity

(a) Wills Act 1959 s 4 testator must be at least 18 years of age.

(b) Soundness of mind

Cockburn J in Banks v Goodfellow [1874-80] All ER 999 on

soundness of mind
 The testator must know that he is making a will
Directs his mind to the property
Knows or understands how the property is disposed

(c) Unsoundness of mind after execution of the will is immaterial.

However a will made during lucid intervals is valid.

(d) Where a testator is ill, incapacitated, blind or illiterate, a will may still
be made and read to him. It would be prudent to have a doctor attest
to his condition.

1.3.1.1 Effect of undue influence or duress

Cases
Hall v Hall (1868) LRIP & D 481, Sir J P Wilde said

In a word, a testator may be led but not driven; and his will must be the
off spring of his own volition and not the record of some one elses.

Tyrell v Painton [1894] P 151.

1.3.2 Section 5 of the Wills Act 1959

A valid will :

Must be written
Signed by the testator with animo testandi with intention to give
effect to the will
Signed at the foot of the document
Signed by the testator or another person in his presence or at his
direction
Signature must be made in the presence of two or more witnesses
Witnesses to attest to the signature in the presence of the testator

Cases
Banks v Goodfellow (1874-80) All ER 999

Re Jenkins [1931] 2 Ch 218

a rubber stamp is a valid signature

Re Finn [1935] All ER 419

A testator who put his thumb in the ink bottle and places a blot in
the will, is valid.

In the Goods of Chalcraft [1948] 1 All ER 700

The initials of the testator accepted as a valid signature.

1.3.2.1 At the end of

Re Hornby [1946] 2 All ER 150

Signature at the side of the will valid signature.

Re Roberts (1881) 19 Ch D 520

 In the intention of the testator, the signature was at the end of the
will.

See also: Re Long [1936] All ER 193

The courts gave very liberal interpretation to the above situations.

1.3.2.2 Witnesses

(a) Signing in the presence of

Case: Casson v Dade [1781] 1 Bro CC 99

Testatrix would have been able to see the will being signed
through a window said to be in her presence.

(b) Attestation

Case: Dr K Shanmuganathan (suing by his Attorney Dr A

Puraviappan v Periasamy s/o Sithambaram Pillai [1994] 2
CLJ 225

(i) Testator to sign the will or attest the signature on the will in
the presence of two witnesses.

Betts v Gannel [1930] 19 TLR 304

(ii) Both witnesses who attest the will must sign in front of the
testator

Moon v King [1842] 3 Curt 243

(iii) Not necessary for the witnesses to sign in the presence of

each other

Brown v Skirrow [1902] P 3; 85 L.T 645

(c) Incompetent witness

Section 8 Wills Act - the incompetence of the witnesses does not

affect the validity of the will.

(d) Similarly, under s 9, a gift to a witness or to the spouse of such

witness is void. However, this will not affect the validity of the will
but only the gift.

Re Young [1951] Ch 344

Thorpe v Bestwick (1881) 6 QBD 311
Public Trustee v Barry [1936] Ch 520

1.4 Islamic Wills

1.4.1 Formalities

(a) Capacity
 (i) Age akil baligh
In Malaysia Age of Majority Act 1971 is a statute of general
application 18 years is the age of majority.

(ii) Soundness of mind

Case: Amanullah bin Haji Ali Hassan v Hajjah Jamilah bt

Sheikh Madar [1975] 1 MLJ 30
Testator in coma. Per Syed Othman J : Such a
capacity is not had by a person who is insane or who
faints.

(b) Clear intention to make a will. The will need not be in writing or be
attested. What is important is the evidence of intention.

Case: Mohd Altaf v Ahmad Baksh

1.4.2 Two important conditions

(a) Disposal by will is not valid if the intention is to dispose off more
than 1/3 of the estate.
Amanullah v Hj Jamilah (supra)

(b) Disposal by will which is intended to increase the shares as Quranic

or under faraid is not valid.

Shaik Abdul Latif v Shaik Elias Bux

Exception to this rule:

(i) Consent of all the beneficiaries

Siti bte Yatim v Mohd Norbin Buyai (1928) 6 FMSLR 135

(ii) Consent must be given after the teststor has died

Zalani Bongsu bin Dato Haji Othman v Bahrom b Dato

Othman and 2 Ors (interveners) [1993] 4 CLJ 37
1.5 Privileged will

Section 26 Wills Act 1959 the will is valid even though

It is made by a minor
It is not in writing

1.5.1 Who qualifies to make a privileged will

(a) members of the armed forces who are in actual military service.

Re Wingham [1948]
2 All ER 908
Re Estate of Rippon [1943] In the Will of Anderson [1944]
1
 In the Estate of Yates [1919] 933

(b) A mariner or seaman

In the Goods of Hale [1915] 2 IR 361

Sarah Hale- (17 yrs) who worked as a clerk in a German
vessel her will was held valid as a privileged will

Re Estate of Knibbs [1962] 2 All ER 829

1.5.2 When does a priviledged will lapse?

Section 26(5) Wills Act 1959 - One month after termination of the position.

1.6 Overseas Will

Section 27 Wills Act 1959

A will executed overseas is valid in Malaysia if it is a written will and fulfills

at least one of the following conditions:

(a) valid under the Act;

(b) valid according to the local law in the jurisdiction where the will is
made;
(c) valid according to the domicile of the testator at the time of death.

1.7 Incorporation through reference and its effect

A testator may incorporate or direct that certain documents be incorporated

into the will, making them part of the will.

Re Louis (1916) 32 TLR 313

Read : Kerridge R, Parry & Clarke, The Law of Succession, at 91-93

1.7.1 Conditions for the application of this doctrine of incorporation:

(a) The document must be in existence at the time of making the will

Singleton v Tomlinson (1878) 3 App Cas 404

(b) The document is referred to in the will as an existing document

a memorandum already written by me (fulfils the condition)

But to be named in a letter addressed to X (does not fulfill the

condition)

Cases
In the Woods of Suhtherland (1866) LR 1P & D 198
In the Woods of Reid (1868) 38 LJP & M 1; and
In the Goods of Smart [1902] 238
 to such of my friends as I may designate in a book or
memorandum that will be found in this letter.

A codicil made 3 years later - the incorporation was said to

be not valid because the terms of the document was not
met.

(c) The document must be referred to in the will.

In the Goods of Garnett [1894] P 90

1.7.2 Effect of the incorporation

(a) The incorporated document becomes part of will and may be

admitted or probate. It is also a public document.

Re Edwards Will Trust [1948] Ch 440

(b) The document is subject to the rules governing the will.

(c) A will which is not valid may be incorporated into a codicil that is
validly executed.

In the Woods of Health Cote (1881) 6 PD 30