Summary Notes on Law of Trust & Equity : Non-Muslim & Muslim Wills

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Law of Trust & Equity : Non-Muslim & Muslim Wills

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è  NON-MUSLIM WILLS

ü  Defined in S2(1) of Wills Act 1959 (WA)

·         A declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition of by will or testament of the guardianship, custody and tuition of any child.

ü  S.2(2) : The Wills Act did not apply to Muslim.

è  NATURE OF THE WILLS & FORMALITIES IN CREATING A WILL

1.       The are 2 types of estate & administration of wills.

   i.            Testate : deceased died leaving a will, so here the executor will distribute the prop. (estate) of the deceased according to the will.

 ii.            Intestate : deceased died without a will, the executor will distribute the prop., but due to no will, the special steps is taken.

è  BENEFITS OF MAKING A WILL :

       S.35 of the Probate & Admin. Act 1959 - It ease the distribution of property by the executor.

ü  CASES :

ü  MEYAPPA CHETTY v SUBRAMANIAM CHETTY

·         PRINCIPLE :

a)      Executor gains his power from the will & not from any grant of probate. (Probate is used to administer & establish the validity of a will).

b)      Upon the death of the testator, the Executor can straight away carry out his duty as an executor even without applying for the probate.

c)      But he is not authorised to do so before he get the probate, not because he is dependent with the probate but its because the probate is the only way in the court’s eye to prove his title/position as an executor.

è  FORMALITIES - CAPACITY

    – case recording

ü  S.4 of the Wills Act 1959 –

1)       The testator of the will must be at least 18 y.o.

ü  S.3 of the Wills Act 1959 –

2)    The testator must be sound AT THE TIME he make the will.

Ø  If he unsound before or after making the will, it will not affect the validity of the will.

Ø  Lucis interval (the testator constantly pass out and wake up due to head injury), the will still valid so long as the will is make when he fully sound.

Ø  If the testator is blind / incapacited / illiterate, he can be said as unsound. Still, if he can understand such act of making a will, the will can be read to him, but its best if Dr. can attest his cond. However, this does not cover eccentric / foolishness.

ü  BANKS v GOODFELLOW

·         PRINCIPLE : The soundness of mind mean 3 things :

i.            The testator must know that he is making a will (intention of the testator).

ii.            He must directs his mind to the prop. (Know the nature and quantity of the distributed prop.)

iii.            At the time  (so if he get crazy before or after the execution of the will, he still considered as a sound mind) of the execution of the will, he must know and understands how the prop. is disposed. (The term & conditions of the distribution.)

3)    Effect of undue influence / duress :

ü  HALL v HALL (1868)

·         FOC : A man had designed a will and later died. The df William Hall, brother of the deceased alleged that the will was obtained by undue influence of the pf (wife – Anne Hall), that she had used violence and threats vs the deceased and that the will had been made in consequence of this for the sake of “peace and quietness”. Thus, he suggested that the will did not express the deceased real testamentary intentions.

·         PRINCIPLE :

The court held that the testator is could be lead not driven, which mean that a persuasion is allowed but not any undue influence. The further defined the U.I. as the act or any threat that make the testator incapable of controlling, and it overborne the testator free volition (kerelaan). A valid will is a will done with a free volition.

è  FORMALITIES – ELEMENTS OF A VALID WILL

ü  S.5 of the Wills Act 1959 –

1)       S.5(1) : The will must be written.

Ø  The will shall be in writing (hand written / type), oral will is not valid.

Ø  The language used for the will is open as long as the the testator understand the content of it. (WHITTING v TUNNER)

Ø  The will can be typed & prepared by others as long as the testator aware & acknowledges of it contents. (ATTER v ATKINSON)

ü  RE TICEHURST

·         PRINCIPLE : In this case,  the testator is an oold lady who has a bad eyesight. Her nephew helped her out to design the will. Unfortunately, as the court found there is a suspicious element in that will, such will was declared void.

Ø  Material used for the doct. of the will : No specific requirement.

ü  RE BARNES’ GOOD

·         PRINCIPLE : A will written on the egg shell is considered as valid.

Ø  Attestation clause : Not compulsory. This clause only to hint that a witness is to attest the validity of the will.

2)       S.5(2) : It must be signed by the testator with animo testandi (with intention to give the will effect i.e. without any U.I. or duress).

ü  BANKS v GOODFELLOW (1874-80)

·         PRINCIPLE : 3 elements of soundness of mind.

ü  RE JENKINS (1931)

·         FOC : The testator sign using a rubber stamp.

·         PRINCIPLE : The signature is valid because the court held such stamp is intended by the testator to be his signature. ‘Eq. looks at the intention rather than form.’

ü  RE FINN (1935)

·         FOC : A testator put his thumb in the ink bottle and places a ‘blot’ in the will.

·         PRINCIPLE : The will is valid, as such sign is intended to represent his signature.

ü  IN THE GOODS OF CHALCRAFT (1948)

·         FOC : The deceased was about to die. She was handed the paper to sign, but did not complete her signature, writing "E Chal" instead of "E. Chalcraft." The attesting witnesses signed w/o delay in her physical presence and shortly afterwards she became unconscious.

·         PRINCIPLE : In this circumstances of the case the partial signature should be accepted.

ü  KHAW CHENG BOK v KHAW CHENG POON (1998)

·         FOC : There 2 wills invoked in this case, 1990’s will & 1992’s will. There are 3 parties involved. One party said the 1990 will is invalid, another said the testator died intestate and the last one said1992 valid. Testator has psygehiatric problem which caused him to unable in understand the will.

·         ISSUE : Did he know & understand the will made?

·         PRINCIPLE : It is found that at the time he make such will, he had went to see dr., and dr said he fit to make the will. The issue exist when the pf tried to argue that the will had been designed by the lawyer that gives undue influence to the testator, as both of them were best friends. High Ct held that the 1990 will is the valid will. This is affirmed in the COA, where the Ct said the good relationship between the lawyer & the dr will not affect the validity of the 1990 will. Besides, the appellant who allege the existence of U.I. had never prove to the court that such allege is true. As the testator had read through the 1990 will, that will was counted as the valid one.

3)       S.5(2) : The signature is signed at the foot of the doct.

ü  RE ROBERT (1881)

·         PRINCIPLE : Gen. rule is that the signature must be at the end of the will creating a presumption that the testator had gone through the whole doct. before signing. *But court in other cases give liberal interpretation upon this.

ü  RE HORNBY (1946)

·         FOC : The testator sign at the side of the will.

·         PRINCIPLE : The court this as valid.

ü  RE LONG

·         FOC : A will was written on both pages. The first page has the signature of the testatrix and the second page was the disposition of properties.

·         PRINCIPLE : The court held this as valid as the signature was said to be intended in covering the whole doct.

4)       S.5(2) : The will is sign by the testator / ANY OTHER PERSON in his presence or at his direction.

5)       S.5(2) : Signature is being made on the presence of 2 or more witnesses. (TESTATOR TO WITNESS)

ü  NORTON v BAZETT

·         FOC : Testator signed a will in his office with the witness of his 2 clerks. As his office was too pile up with other papers, he asked both of the clerk to sign (attestation) the will outside his room.

·         PRINCIPLE : Court held the will to be valid – liberal approach.

6)       S.5(2) : Witnesses to attest to the signature in the presence of the testator. (WITNESS TO TESTATOR)

ü  CASSON v DADE (1781)

·         FOC : Testatrix travelled to his lawyer’s place by carriage, to sign the will. Due to hot day, she went back to sit in her the carriage. When she was in the carriage, she could not in fact see the witness through the window of office, but at the very moment when the witnesses were signing, she purposely moved to a place that can see witness through the window.

·         PRINCIPLE : Testatrix would have been able to see the will being signed through a window. The will valid as the attestation was good.

ü  RE COLLING

·         PRINCIPLE : The will is not valid as one of the witness left the scene before the testator finished signing the will. Incomplete witness presence.

ü  MOON v KING (1842)

·         PRINCIPLE : It was held that both of the witnesses who attest (sahkan) the will must sign infront of the testator. Exception to this gen. rule ; below.

ü  BROWN v SKIRROW (1902)

·         PRINCIPLE : However, the witnesses need not sign in the presence of each other. This mean, 1^st witness can sign on Monday in front of the testator, and another one can did the same on the other other day without the presence of the 1^st witness.

è  OTHER ISSUE : INCOMPETENT WITNESS

1)    Issue 1 : Validity of the will.

Ø   S.8 of WA : If a witness attests the execution of a will,, at the time / after the execution of the will becomes incompetent (drunk/unsound), the will still valid.

Ø  Will is not to be invalidate by the incompetent witness.

2)    Issue 2 : Can the testator of the will be a witness?

Ø  S.11 of WA : Executor cannot be the witness of the same will, but the spouse of the executor can be a witness.

ü  SMITH v HARRIS

·         PRINCIPLE : Person who sign the will upon the direction of the testator still can be an attesting witness of the will.

3)    Issue 3 : Can the witness who attest the will be a beneficiary under the will?

Ø  S.9 of the WA : Gift to witness / spouse of witness will rendered the will to be void.

Ø  However, this will not affect the validity of the will, only the gift is not valid.

ü  THORPE v BESTWICK (1881)

·         PRINCIPLE : The gift given to the person who subsequently become a spouse of the witness will not invalidate the will, but such gift may be void.

ü  PUBLIC TRUSTEE v BARRY (1936)

·         FOC : A testator (a nun) made a will leaving her prop. to those who wil become the abbess when she died. This will had been attested by 2 other nuns, who 1 of them became an abbess when the testator died.

·         Issue : Does such will valid as the witness who was now an abbess is now one of the beneficiary of the will?

·         PRINCIPLE : The will is valid as the testator didn’t intented to give such prop. to the witness. It just that right after she died the witness became an abbess who entitle her to be under the will. Its unplanned, so no invalidation.

è  ISLAMIC WILLS

è  FORMALITIES

1)       CAPACITY

Ø  Age : Akil baligh (Gen. rule : 18 y.o., but as per Islam, akil baligh age could be lower than that, making the will still valid.)

Ø  Soundness of mind

ü  AMANULLAH v HAJJAH JAMILAH (1975)

·         FOC : The testator in this case is coma while the will is being made.

·         PRINCIPLE : It was held that such will is not valid.

2)    INTENTION

Ø  There must be a prove on a clear intention to make such will.

Ø  There is no requirement that the will should be in writing or to be attested by witness.

Ø  Thus, an oral will is acceptable here.

ü  MOHD ALTAF v AHMAD BAKSH

·         PRINCIPLE : Prop. of a muslim may be disposed so long as there is a CLEAR INTENTION to do so, and this must be accompanied with 2 cond(s). :

               i.            Disposal is not valid if the intention to dispose off more than 1/3 of the estate.

             ii.            Disposal with intention to increase share as Quranic / under Faraid is not valid.

3)    EXCEPTIONS :

a)    Consents of all the beneficiaries

ü  SITI YATIM v MOHD NORBIN (1928)

·         PRINCIPLE : A will for the illegitimate daughter is permissible if all the beneficiaries consents on it.

b)    Such consent must be given after the testator dies

ü  ZALANI BONGSU v BAHROM (1993)

·         PRINCIPLE : Such consent must be given after the testator died in order to avoid double consent / fake consent given during the life time of the testator just to please him / her.

è  PRIVILEGED WILLS

è  GEN. RULE : All will have to be designed acc. to WA, where all the requirement of capacity & formality must be adhered to.

è  EXCEPTION : Privileged Wills (PW).

è  DEFINITION : Any declaration, oral or written, made by or at the direction of the testator which contains the testator’s intention.

è  S.26(1) of WA : The will is valid even though its made by minor / not in writing as long as the testator is :

1)    Members of armed forces who are in ‘actual military service’

Ø  Soldier means the army who fight in war & also the civilian who worked in armed force (eg : doctor / nurse who serve the soldier).

ü  IN THE ESTATE OF STANLEY (1928)

·         PRINCIPLE : Nurse is allowed to make the PW as they served the soldier under contract to the War  office on the hospital ships.

ü  RE WINGHAM (1948)

·         PRINCIPLE : The act of a soldier who told his friend that all his prop. shall be given to the friend’s mom is a valid PW, as its made during war. This soldier is the trainee who was a waiting trainee to be called up in front.

ü  WILL OF ANDERSON

·         PRINCIPLE : An Australian soldier who served during Malaya terrorism era (1956) is entitled to make PW.

Ø  For other circumstances where no military operations have occurred, but its believed that there is IMMINENT DANGER, PW is allowed to be made under ‘actual military service’.

2)    Mariner/Seamen

Ø  Confined the members of merchant navy, Royal Navy & civilian who served merchant navy.

ü  GOOD OF AUSTEN

·         PRINCIPLE : The PW made by seamen during the expedition to Rangoon River is considered as valid. The term ‘at sea’ cannot only regarded the sea / ocean, but also cover lake, river and etc.

ü  IN THE GOODS OF HALE

·         FOC : Sarah Hale was a 17 yo clerk who work in a German vessel.

·         PRINCIPLE : The typist working with the marines also entitled to make PW.

3)    Lapse of time

Ø  S.26(5) of WA : 1 month after termination of the position.

è  IN EXAM : QS TO BE ASKED

            i.            Is he is an army?

          ii.            Is there is any imminent danger / actual threat?

         iii.            Is the time is not yet lapse? – 1 month.

è  S.27 of WA : A will executed overseas is valid in M’sia if :

               i.            Valid under the Act

             ii.            Valid acc. to the local law.

            iii.            Valid acc. to the domicile of the testator.

è  DOCTRINE OF INCORPORATION

Ø  Codicil : When there was a will established, but after certain time, there was a doct. / book / journal found saying that these must be put as part of the will, such item must be treat so.

Ø  Codicil :  

·        It is a supplement or addition to a will.

·        Executed in same manner as the will.

·        A codicil can also have the effect of modifying the will.

·        When admitted to probate, a codicil becomes part of the will.

Ø  CONDITIONS :

          i.        The doct. must be in existence at the time of making the will.

        ii.        The doct. is referred to in the will as an existing doct.

ü  IN THE GOODS OF SMART

·         FOC : The testator wrote that, ‘to such of my friends as I may designate in a book / memorandum that will be found in this letter’. A codicil made 3 years later.

·         PRINCIPLE : The incorp. was said not to be valid because the term of the doct was not met. “I may designate” here show something in future, which is not allowed.

       iii.        The doct. must be referred to in the will.

Ø  EFFECT :

          i.        It becomes part of the will.

        ii.        The doct. is subject to the rules governing the will..

       iii.        A will that is not valid, maybe executed into a codicil which is validly executed.