Chapter 1 - Wills & Succession - Grounds to Invalidate Will

Question 1

WILL & SUCCESSION - GROUNDS TO INVALIDATE WILL

Overview

Answer 1

1) Pre-requisites

2) Grounds to challenge

Question 2

PRE-REQUISITIES

Overview

Answer 2

1) Locus to challenge - meaning & scope, the test
2) Burden of proof
3) Discharging the burden of proof

Question 3

PRE-REQUISITIES

Locus to challenge - meaning & scope

Answer 3

Lee Ngan Fong v Gan Bo Tan & Ors:

• party must have sufficient locus to challenge a will;
• question of locus goes to jurisdiction of court;
• i.e. without locus, no court can confer jurisdiction on the parties.

Question 4

PRE-REQUISITES

Locus to challenge - the test

Answer 4

Lee Ngan Fong v Gan Bo Tan & Ors:

• whether the party will benefit from the declaration of the will, whether invalid or valid.

Question 5

PRE-REQUISITES

Burden of proof

Answer 5

1) Lee Ing Chin v Gan Yook Chin:

• Burden of proving sufficient testamentary capacity: on the will propounder;
• Burden of proving due execution: on the will propounder;
• Burden of proving suspicious circumstances: on the party who alleges;
• Burden of dispelling suspicious circumstances: on the will propounder.

2) Tan Kay Soon v Tan Ching Lin (HC, 2020)
- will propounder has the burden to:

1 - prove that testator duly executed the will;
2 - prove that testator had the testamentary capacity;
3 - dispel any suspicious circumstances surrounding the execution of the will

Question 6

PRE-REQUISITES

Discharging the burden of proof

READ + KNEW + APPROVED

Answer 6

Lee Ing Chin v Gan Yook Chin:

by showing that:

• the testator had his will READ over him;
• the testator KNEW & APPROVED the contents of the will.

Question 7

GROUNDS TO CHALLENGE

Overview

Answer 7

1) Lack of testamentary capacity
2) Minor testator
3) Improper execution
4) Suspicious circumstances

Question 8

LACK OF TESTAMENTARY CAPACITY

Overview

Answer 8

1) Meaning of testamentary capacity;
2) Test for testamentary capacity;
3) Time for test of testamentary capacity;
4) Application & examples;
5) Burden of proving sufficient testamentary capacity.

Question 9

LACK OF TESTAMENTARY CAPACITY

Meaning of testamentary capacity

Answer 9

Banks v Goodfellow

• Testator shall:

1) Understand the nature of the act & its effect;
2) Understand the extent of the property of which he is disposing
3) Understand the claims to which he ought to give effect

• No disorder of mind shall:

1) Poison his affections;
2) Pervert his sense of right;
3) Prevent the exercise of his natural faculties.

• No insane delusion shall:

1) influence his will in disposing his property;
2) bring about a disposal which a sound mind would not have been made.

Question 10

LACK OF TESTAMENTARY CAPACITY

Test for testamentary capacity

Answer 10

Tho Yow Pew v Chua Kooi Hean:

• very slight testamentary capacity is required;

As long as he understands that he:

• GIVE: he is giving his property to someone else;
• MEMORY: has memory & extent of all of his property;
• CLAIM: understands the nature of the claims to his estate by the beneficiaries.

He is deemed to have sufficient testamentary capacity.

Question 11

LACK OF TESTAMENTARY CAPACITY

Time for testamentary capacity

Answer 11

Randolph Yap Pow King & Anor v Yvonne Yap Yoke Sum & Ors

• at the time when the testator signs his will.

Question 12

LACK OF TESTAMENTARY CAPACITY

Application & examples

• Naive, gullible & easily influenced

Answer 12

Manuel Frank Simon & Anor v Jean Sharina:

• naive, gullible & easily influenced does NOT equal to lack of testamentary capacity.

Question 13

LACK OF TESTAMENTARY CAPACITY

Application & examples

• confusion

Answer 13

Karn Woon Lin v Cheah Chor Bok:

• confusion is not an incapacity;
• being confused does not equal to lacking in testamentary capacity.

Question 14

LACK OF TESTAMENTARY CAPACITY

Application & examples

• very sick

Answer 14

Lee Ing Chin v Gan Yoke Chin:

• mere bodily-ill or imperfect memory do not amount to lack of testamentary capacity.

Question 15

LACK OF TESTAMENTARY CAPACITY

Application & examples

• mental disorder or insane delusion

Answer 15

Tho Yow Pew v Chua Kooi Hean:

• insane delusion & insanity at the time of making will is required to vitiate testamentary capacity

Question 16

LACK OF TESTAMENTARY CAPACITY

• Burden of proving sufficient testamentary capacity

Answer 16

Lee Ing Chin v Gan Yook Chin:

• to establish sufficient testamentary capacity: on the will propounder;
• by proving the deceased was of sound mind, memory & understanding.

Question 17

MINOR TESTATOR

The law

Answer 17

S.4 WA

• the will put forward by minor is void & invalid.

Question 18

IMPROPER EXECUTION

Overview

Answer 18

1) The law
2) Example of proper execution
3) Example of improper execution
4) Recent application

Question 19

IMPROPER EXECUTION

The law

Answer 19

Proper execution - S.5 WA

-

Question 20

IMPROPER EXECUTION

Example of proper execution

Answer 20

Karn Woon Lin v Cheah Chor Bok

• thumbprint is another mode of attestation;
• thumbprint is a valid execution.

Question 21

IMPROPER EXECUTION

Example of improper execution

Answer 21

Choo Mooi Kooi v Chin Choon Jun:

• impropriety in the execution of the will COUPLED with questionable testator’s mental capacity may amount to improper execution.

Question 22

IMPROPER EXECUTION

Recent application

HC, 2020

Answer 22

Tan Kay Soon v Tan Ching Lin

• will propounder has the burden to show that the will is properly executed by virtue of S.5;
• witnesses must be credible & independent for the court to accept the evidence.

Question 23

SUSPICIOUS CIRCUMSTANCES

Overview

Answer 23

1) Scope
2) Dispelling suspicious circumstances
3) Examples
4) Appellate intervention

Question 24

SUSPICIOUS CIRCUMSTANCES

Scope

Answer 24

Thow Yow Pew v Chua Kooi Hean:

• suspicious circumstances must relate to the making of the will;
• suspicious circumstances are not to be directed to the testamentary capacity.

Question 25

SUSPICIOUS CIRCUMSTANCES

Dispelling suspicious circumstances

Answer 25

Eu Boon Yeap v Ewe Kean Hoe:

• by showing that the deceased is of competent mind & had his will read over him.

Question 26

SUSPICIOUS CIRCUMSTANCES

Examples

• Omission of important details

Answer 26

Ch’ng Khen Phong v Chung Keng Huat:

• failure to insert IC numbers in the will prepared by solicitor amounted to suspicious circumstances.

Question 27

SUSPICIOUS CIRCUMSTANCES

Examples

• Unmatched signatures

Answer 27

Chen Ngow @ Chen Seong Chia:

• unmatched signatures of the deceased in the 2nd will amounted to suspicious circumstances.

Question 28

SUSPICIOUS CIRCUMSTANCES

Examples

• Medical evidence of the deceased

Answer 28

Tok Siew Ling & Anor v Low Chee Choy:

• medical evidence showed that the deceased would have been too weak to date the will;
• this amounted to suspicious circumstances.

Question 29

SUSPICIOUS CIRCUMSTANCES

Appellate intervention

Answer 29

Khiaw Cheng Poon v Khaw Cheng Bok:

• Existence of suspicious circumstances is a question of fact;
• An appellate court lacking in audio visual advantage would be slow to intervene.