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WILL & PROBATE

CASE REVIEW

PREPARED BY:

FATIN FARHANA BINTI FAZIL

PREPARED FOR:
MADAM MUNIRAH MOHAMAD

SUBMISSION DATE:
17 JANUARY 2023
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1)The facts of the case

Chin Huat Yean @ Chin Chun Yean and Chin Jin Kim (collectively known as " "The
Respondent") was granted Probate in relation to the estate of Chin Joo Ngan (the deceased). In
this case, the Respondents are the children of the deceased from his first marriage. The
application for Grant of Probate was based on the deceased's last will and testament, which was
dated December 18, 2013. Chin Jhin Thien and Chin June Song (referred to collectively as "the
appellants") "are the deceased's brother and nephew, respectively. The Appellants sought
revocation of the Grant of Probate as well as a declaration that the Impugned Will was invalid
and that the deceased died intestate.

Only the deceased's marriage to his first wife was registered. On 14.7.1976, the deceased
married his first wife. The deceased's remaining two marriages, with his second and third wives,
were not registered. The plaintiffs are the children of the deceased's first marriage. The deceased
had four children with his second wife, two of whom were still in school when he died, and the
youngest was still a minor. There were no children between the deceased and his third wife. The
family conflicts emerge from the deceased's will, which was written on December 18, 2013. On
December 18, 2013, an advocate and solicitor named Peter Huang prepared the will, which he
also witnessed with his secretary, Lau Ean Nah.

The deceased left all of his assets and properties to the defendants in his will. The
deceased died six days after the will was written, on December 24, 2013. Coincidentally, the
deceased's birthday is also on December 24th. The defendants were later granted probate by the
Kuala Lumpur High Court on February 12, 2014. As a result, the plaintiffs filed a civil suit in the
Pulau Pinang High Court, seeking, among other things, (a) an order that the grant of probate
issued by the Kuala Lumpur High Court is declared null and void in law and is revoked and
canceled; and (b) a declaration that the will dated 18.12.2013, alleged to be the last will and
testament of the deceased, is declared null and void in law and is revoked and canceled.
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The respondents filed an appeal with the Court of Appeal after being dissatisfied with the
High Court's decision. The Court of Appeal granted the defendants' appeal and reversed the High
Court's decision. Hence, this appeal.

2)The legal issues related to this topic

(i) whether the concept of secret trust was applicable in Malaysia

The Federal Court answered the first issue by holding that the concept of secret trust,
which is part of the law of trust and is governed by equity rules and English common law, is
applicable in Malaysia subject to the proviso to section 3(1) of the Civil Law Act 1956, unless
there is an explicit abrogation, variation, restriction, or modification by written law. The Court
upheld secret trust to prevent fraud on a testator, and equity rules were applied to compel the
trustee under a will to fulfill his promises to the testator."

(ii) whether secret trust was applicable in a case involving the issue of testamentary capacity of a
testator

The Federal Court ruled that the second issue was irrelevant to the appeal because the
Appellants' case had nothing to do with secret trust law. However, if it had to be answered, it
would be in the affirmative.

(iii) whether the creation of a secret trust was contradictory to the Wills Act 1959 ("the Act")
and/or was against public policy.

The third issue in question was answered in the negative because firstly a secret trust, as a
creature of common law, operates outside the formalities of the Wills Act 1959; and secret trusts
are enforced to promote the main policy principle behind the Wills Act 1959: to protect testators'
testamentary freedom.
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3)The judgments

1. High Court
The Appellants challenged the Impugned Will on the grounds that the deceased lacked
testamentary capacity to make the will due to terminal cancer; and ii. the respondents had
cheated and unduly influenced the deceased. The Respondents denied the allegations and further
contended that the Impugned Will established a secret trust for the benefit of the Deceased's
second wife and her children, of which the Respondents were trustees. Following a full trial, the
High Court granted the Appellants' claim and granted the Appellants' requested relief in which
The High Court granted the appellants' claim, revoked the grant of probate, declared the will
invalid, and ordered the respondents to pay the appellants RM25,000 in exemplary damages for
violating the appellants' rights.

2. Appellate Court
The Respondents were successful in their appeal against the High Court's decision. The
Court of Appeal held, among other things, that the High Court judge acted improperly when she
combined the issues of secret trust and testamentary capacity. Second, the High Court judge did
not properly appreciate the evidence; and third, the defense of secret trust was not demolished,
and there were good grounds to dispel any mala fide on the part of the Respondents.

The Court of Appeal granted the respondents' appeal and overturned the trial court's
decision, ruling that the deceased lacked testamentary capacity and that PW1's evidence never
stated that the deceased lacked testamentary capacity. Third, there was no reason to doubt DW1
and DW2's testimony that all formalities for making the deceased's will valid had been followed.
The respondents had dispelled any suspicious circumstances surrounding the will's creation, and
the appellants had failed to disprove the defense of secret trust.

3. Federal Court of Appeal

(a) the deceased's terminal cancer did not automatically deprive him of testamentary
capacity when he executed his will on December 18, 2013, it was sufficient if he was of sound
mind on that day. (b) the evidence of DW1 and DW2, both independent and disinterested
witnesses, demonstrated that the deceased was of sound mind both when he instructed DW1 in
the morning and when he executed the will in the afternoon of December 18, 2013

(c) all five witnesses who saw the deceased that day affirmatively stated that he was of
sound mind, lucid, conscious, mentally alert, and able to communicate. (d) PW1's testimony did
not prove that the deceased lacked testamentary capacity. PW1 did not see the deceased on the
day he executed the will, but the deceased was lucid, conscious, and of sound mind when he last
saw him five days earlier. PW1's testimony was consistent with that of Dr Azlan, the
respondents' expert witness. (e) no independent medical evidence was presented to the trial court
demonstrating that the deceased lacked testamentary capacity to carry out the will.
.
4)Comment

In my opinion, the judge in this case acted appropriately. Secret trusts exist outside of the
testator's will and are not testamentary. They can be completely or partially hidden. There are
two main reasons why a testator may have chosen a secret trust arrangement to dispose of the
property: first, he or she may not want the matter to be known to others, and second, he or she
may not be certain about his or her plans at the time. To prevent fraud, "equity fastens on the
conscience of the legatee a trust, that is, a trust which would otherwise be inoperative; in other
words, it makes him do what the will in itself has nothing to do. It allows him to take what the
will gives him and then makes him apply as the court of conscience directs, and it does so to give
effect to the testator's wishes that would otherwise be ineffective.

In this case, I agree that the appeal is allowed. Because all of the requirements for the
formality of a valid will had been met in this case. In general, the court's approval of a secret
trust does not violate the Wills Act of 1959 or any other statutory law. If the secret trust plea is
successful, it only serves to demonstrate the testator's genuineness and true intention. In general,
only when it is established that the testator lacked testamentary capacity to carry out the will can
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the probate be set aside. In this case, the High Court made an error by combining the issues of
secret trust and testamentary capacity. That is against the law. Medical capacity is related to
testamentary capacity.