ASM - Wills Act 1959 (Act 346) (Revised 1988)/ WILLS ACT 1959 (Act 346) [As at: 26 March 2010]/WILLS ACT 1959 (ACT
346)/WILLS ACT 1959
Notices
First enacted ... ... ...
Revised ... ... ... ... ...
1959 (Ord No 38 of 1959)
1988 (Act 346 wef 6 October 1988)
WILLS ACT 1959
(ACT 346)
An Act relating to the law on wills.
[1 April 1960, LN 55/1960]
1 Short title and application
(1)
This Act may be cited as the Wills Act 1959.
(2)
This Act shall apply to the States of West Malaysia only.
2 Interpretation and application
(1)
In this Act, unless there is something repugnant in the subject or context"property"
includes lands, leases, rents and hereditaments corporeal, incorporeal or personal and any individual shares thereof
and any estate, right or interest therein or in relation thereto, moneys, shares of Government and other funds,
securities for money, charges, debts, choses in action, rights, credits, goods and all other property whatsoever
which devolves upon the executor or administrator and any share or interest therein and any contingent, executory
or other future interest;
"West Malaysia"
has the meaning assigned thereto in section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and includes the
Federal Territory of Kuala Lumpur; 1*
"will"
means 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 by will or
testament of the guardianship, custody and tuition of any child.
(2)
This Act shall not apply to the wills of persons professing the religion of Islam whose testamentary powers shall remain unaffected
by anything in this Act contained.
1* NOTE-All references to "West Malaysia" shall be construed as references to "Peninsular Malaysia"-See subsection 5(2) of the Interpretation
(Amendment) Act 1997 [Act A996].
Property. In the strict legal sense, the word 'property' signifies valuable rights or interests protected by law and this is the primary
appropriate and broader signification of the term. In the modern legal system, property includes practically all valuable rights, the
term being indicative and descriptive of every possible interest which a person can have in any and every thing that is the subject
of ownership by man and including every valuable interest, it can be enjoyed as property and recognised as such equitable interests
as well as legal interests and extending to every species of valuable rights or interests in either real or personal property or in
easements, franchises and incorporeal hereditaments: see Adong Bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ
418 at p 433 per Mokhtar Sidin JCA. 'Property' includes a thing in action and any interest in movable or immovable property: see
the Probate and Administration Act 1959 (Act 97) (Revised 1972) s 2: 4 Succession.
Land. The National Land Code (Act 56 of 1965) s 5 ((1) 3 Lands) defines land to include:-
(1)
(2)
(3)
(4)
(5)
surface of the earth and all substances forming that substance;
the earth below the surface and all substances therein;
all vegetation and other natural products, whether or not requiring the periodical application of labour to
their production, and whether on or below the surface;
all things attached to the earth or permanently fastened to any thing attached to the earth, whether on or
below the surface; and
land covered by water.
Lease. The National Land Code (Act 56 of 1965) s 5 ((1) 3 Lands) defines lease to mean a registered lease or sub-lease of
alienated land.
Hereditament. This means any property that can be inherited: see The New Shorter Oxford English Dictionary (Vol 1) (1993) p
1222.
Corporeal. Material objects, tangible: see The New Shorter Oxford English Dictionary (Vol) (11993) p 515.
Incorporeal. This means having no material existence in itself, but attaching as a right or profit to some actual thing: see The New
Shorter Oxford English Dictionary (Vol 1) (1993) p 1342.
Chose in action. It is a thing which is incorporeal and mainly a right. For example an assignment of a right, benefit and interest in
and under the sale agreement of the property. A chose in action is always in respect of personalty. It is basically a right to file an
action to recover money due on a debt or to recover pecuniary compensation on account of breach of contract or tort: see Chuah
Eng Khong v Malayan Banking Bhd [1998] 3 MLJ 97, FC per Peh Swee Chin FCJ; and Phileo Allied Bank (M) Bhd v Bupinder
Singh a/l Avatar Singh & Anor [1999] 3 MLJ 157 at 80 per Gopal Sri Ram JCA. The phrase has been described to mean a thing
recoverable by action as contrasted with a chose in possession, in other words all personal rights of property which can only be
claimed or enforced by action and not by taking physical possession: see Re Khoo Kim Hock [1974] 2 MLJ 29 at 30 per Mohamed
Azmi J.
West Malaysia. The Interpretation Acts 1948 and 1967 (Act 388) (Consolidated and Revised 1989) s 3 (2 Statutes & Statutory
Interpretation) and art 1(2) of the Federal Constitution ((1) 1 Constitutional Law) defines West Malaysia as the States of Johore,
Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu.
Will. See Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998] 3 MLJ 457 at 573 per Jeffrey Tan J. See also the
Interpretation Acts 1948 and 1967 (Act 388) (Consolidated and Revised 1989) (2 Statutes & Statutory Interpretation).
3 Property disposable by will
Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner
hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death
notwithstanding that he may have become entitled to the same subsequently to the execution of the will.
Devise. See s 9 post and notes thereto. See also Springett v Jennings (1871) 6 LR Ch App 333 at 335-336.
Bequeath. To leave by will. Applies to both real and personal property: see The Oxford Universal Dictionary Illustrated (3rd Edn).
All property which he owns. A testator cannot dispose by will any property which he does not own or which he holds in a
representative or official capacity or property bound by covenant of the testator to devolve in some other manner. A policy of
assurance effected by the testator on his own life and expressed to be for the benefit of a spouse and/or children or any of them,
will create a trust in favour of the objects therein named, and the moneys payable under it will not, so long as any object of the
trust remains unperformed, form part of the estate of the insured nor be subject to the right of disposition by the assured's will.
Similarly shares held by the testator in a company incorporated under the Companies Act 1965 (Act 125) (Revised 1973)
(1 Companies)vests on his death in his personal representatives, and he may have no right, or only a restricted right, to dispose of
them, for other shareholders may have the right to buy them from the personal representatives; see 11(2) Halsbury's Laws of
Malaysia W
,P
,A
S
(2007 Reissue) (Revised Title Scheme) [300.015].
Testator. This word is used whatever may be the contents of the will, and whether the will disposes of property or not.
Property. See note to s 2 ante.
4 Will of infant invalid
No will made by any person under the age of [majority] shall be valid.
The word 'majority' within the square brackets was amended by the Wills (Amendment) Act 1976 (Act A331) s 2 wef 27 February
1976. Previously, it read 'twenty-one years'.
Age of Majority. The Age of Majority Act 1971 (Act 21) s 2 (9 Family Law) prescribes the age of majority as 18 years old.
5 Mode of execution
(1)
No will shall be valid unless it is in writing and executed in manner hereinafter mentioned.
(2)
Every will shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction;
such signature shall be made or acknowledged by the testator as the signature to his will in the presence of two or more witnesses
present at the same time, and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall
be necessary:
Provided that every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him as
aforesaid, be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside,
or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his
signature to the writing signed as his will; and no such will shall be affected by the circumstance(a)
(b)
(c)
(d)
(e)
that the signature shall not follow or be immediately after the foot or end of the will; or
that a blank space shall intervene between the concluding word of the will and the signature; or
that the signature shall be placed among the words of the testimonium clause or of the clause of attestation,
or shall follow or be after or under the clause of attestation, either with or without a blank space intervening,
or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses;
or
that the signature shall be on a side or page or other portion of the paper or papers containing the will
whereon no clause or paragraph or disposing part of the will shall be written above the signature; or
that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other
portion of the same paper on which the will is written to contain the signature,
and the enumeration of the above circumstances shall not restrict the generality of this proviso; but no signature shall be operative
to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or
direction inserted after the signature shall be made.
General note. The maker of a will must have the mental requirements (animus testandi) in addition to satisfying the formal
requirements laid down in the aforesaid section. Where a testator lacks the mental capacity to make a will, then the will is rendered
ineffective. In determining the mental capacity of the testator, the following test, laid down by Cockburn CJ in Banks v Goodfellow
(1870) 5 LR QB 549, should be applied: 'It is essential to the exercise of such a power [that is, making a will] that a testator shall
understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing, shall be able to
comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the
mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion
shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not
have been made'.
The test in Banks v Goodfellow (supra) requires three essentials to be fulfilled, namely:-
(1)
(2)
(3)
sound mind;
sound memory; and
sound understanding,
and these three criteria must be fulfilled at the time the testator is executing the will.
For a will to be valid, the testator must have had testamentary capacity. In Thiang Kai Goh v Yee Bee Eng & Ors [2005] 1 MLJ
431, Suriyadi J (as he then was) held that the legal burden of proof lies upon the party who wishes to propound a will, to prove that
the testator had testamentary capacity at the time of making the will; however the evidential burden of proof may shift from party
to party in the course of the trial.
It was held in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA that what the law primarily
looks for as vitiating testamentary capacity is mental disorder or insane delusion; mere bodily ill-health or imperfect memory is
insufficient. The court observed that testamentary capacity is not to be equated with contractual capacity and that a person may
lack the mental capacity to enter into a contract and yet may have sufficient testamentary capacity. The relevant and material point
of time to consider the mental capacity of the deceased is the time at which the will is made and not at some other earlier or later
point of time.
The court in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor (supra) further observed that where the validity of a
will is challenged, the burden of proving testamentary capacity and due execution is on the propounder of the will as is the burden
of dispelling any suspicious circumstances that may surround the making of the will. That burden may be discharged by showing
that the testator, being of competent mind, had his will read over to him or that the testator knew and approved of the contents of
the will. The onus of establishing any extraneous vitiating element such as undue influence, fraud or forgery lie on those who
challenge the will: see Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor (supra).
Sound mind. Persons of unsound mind means any person, not a minor, who, not having been found to be a mentally disordered
person, is incapable from infirmity of mind managing his own affairs: see the Trustee Act 1949 (Act 208) (Revised 1978) s 3 (3
Trusts & Settlements). Mental patients or lunatics are not of sound mind while suffering from their mental disorder. Persons who
are drunk at the time of making a will or under the influence of drugs are not of sound mind. Physical injury to the brain and
physical illness which affects the brain may also affect the soundness of mind.
In Tho Yow Pew & Anor v Chua Kooi Hean [2001] 5 MLJ 578, it was held by the High Court that it is trite law that the burden of
proving the deceased has the requisite testamentary capacity whilst executing the will, lies with the party propounding the will and
in this case, the plaintiffs. However, where there are suspicious circumstances concerning the execution of the will, the onus is on
the party propounding the will, to remove, by way of explanations, such suspicious circumstances. In order to test the testamentary
capacity of the deceased, it is necessary to establish that at the time of executing the will, the deceased was of 'sound mind', 'sound
memory' and 'sound understanding' (Udham Singh v Indar Kaur [1971] 2 MLJ 263; followed in the latter case, Dr Shanmugam v
Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC). The court was satisfied that the long term effect of the drug,
Dexamethasone, had caused the deceased psychiatric problems.
In Gan Yook Chin dan satu lagi lwn Lee Ing Chin @ Lee Teck Seng dan lain-lain [2001] 2 MLJ 70, the High Court held that there
was no doctor present on 16 April 1997 to certify that the deceased was of 'sound mind' to make the will. If it was to be accepted
the deceased was 'mentally alert', then the court believed the deceased had not appointed the first defendant as the sole executor
and trustee when reminded of his advice to the first plaintiff to always have two executors and trustees. The court found that the
deceased was of unsound mind at the time of the making of the will. There were several matters which aroused the court's
suspicion. Having considered the deceased's character and the evidence of witnesses, what was alleged to be the deceased's will
was invalid.
In Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin & Anor [2003] 2 MLJ 97, the Court of Appeal held that the deceased in
that case was not in a state of perfect health because he was suffering from terminal cancer, but that perfect health was not a sine
qua non of testamentary capacity. The mere fact that the deceased was seriously ill with cancer did not throw any doubt on the
validity of the will. Further, the court observed that there was evidence that the deceased was compos mentis and able to deal with
his affairs; thus, it was plain that he was certainly in a position to give instructions for a will, to understand the contents of his will
when read and explained to him and to place his signature on it.
In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and Another Appeal [2005] 6 MLJ 540, CA, at or about the time the wills
in question were made, the deceased had some psychiatric problems. However, in the making of the wills, all the formal
requirements had been attended to. The Court of Appeal observed that when the learned judge's judgment in the lower court was
read as a whole it was apparent that he kept the test in Re R deceased (1951) P 10 at the forefront of his mind when evaluating the
evidence relied on as constituting suspicious circumstances. The 1990 wills in the case were therefore valid.
In Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) & Anor [2009] 6 MLJ 385, CA, there was no dispute that the
deceased was unwell, but the unchallenged evidence of the deceased's doctor showed that the medication given to the deceased did
not affect his mental capacity to make a will. As such, the Court of Appeal found that there was a 'clear misappreciation of
evidence' relating to the deceased's mental condition at the time of the execution of the said will. The court observed that the two
attesting witnesses also found the deceased to be normal at the time when he executed the said will, and that the unchallenged
evidence was that the deceased was of sound mind, memory and understanding and that he approved and had knowledge of the
contents of the said will.
Sound memory. This was explained in the American case of Stevens v Vancleve 4 Washington 267 as the following, 'He must have
memory, a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for
any purpose. But his memory may be very imperfect; it may be gre[a]tly impaired by age or disease, he may not be able at all
times to recollect the names, the persons or the families of those with whom he had been intimately acquatinted; he may at times
ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently
sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make
and to digest all the parts of the contract and yet be competent to direct the distribution of his property by his will'.
Sound understanding. The testator must understand the nature of the transaction in which he was engaged at the time he executed
his will: see Harwood v Baker (1840) 3 Moo PC 282; and In the Estate of Park [1954] P 112, CA (Eng).
A court of probate must first be satisfied that a testator understood the dispositions of a will, and that it was duly executed by him
as his will. Once so satisfied, it is not concerned with the fairness of the will. A court must resist the natural temptation to set aside
a will on the ground that it does not appear to be fair, equitable or just: see Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin
& Anor [2003] 2 MLJ 97 at 140, CA, per Gopal Sri Ram JCA.
There is a presumption that a person who lacked testamentary capacity at some time before the execution of the will, continued to
lack testamentary capacity at the date of execution. However, if the testator had the requisite testamentary capacity before he
executed the will, there is a presumption that he continues to have testamentary capacity to make the will until the contrary can be
proven: see Chambers and Yatman v The Queen's Proctor (1840) 2 Curt 514.
In Thiang Kai Goh v Yee Bee Eng & Ors [2005] 1 MLJ 431, the solicitor who prepared the will had witnessed the affixing of the
thumb print by the testator. The medical report showed that the testator had a history of unsteady gait resulting from a forehead
injury one month prior to a medical examination, in absence of any significant abnormality. As such, the challenge to the validity
of the will on the grounds that the testator had no testamentary capacity (on the basis that he had affixed his thumbprint to the said
will without knowing its true contents and effect) was dismissed.
A person suffering from mental illness may have lucid intervals: see Cartwright v Cartwright (1793) 1 Phill 100. A person
suffering from insane delusions may not have his mental capacity affected, as long as the will was made when he had testamentary
capacity: see Banks v Goodfellow (1870) 5 LR, QB 549; cf Dew v Clark (1826) 3 Add 79. But if as a result of the delusion, the
testator revokes the earlier will and makes another will, the latter will is not valid: see Re Nightingale (No 2) (1974) 119 Sol Jo
189; and Bull v Fulton (1942) 66 CLR 295. Sometimes part of the will would be admitted to probate and the parts which is
affected by the delusion would be rejected: see In the Estate of Bohrmann [1938] 1 All ER 271. In Khaw Cheng Bok v Khaw
Cheng Poon [1998] 3 MLJ 457, the court held that senility cannot be automatically equated with testamentary incapacity. See also
Krishnaveni a/p Muniandy v Sethambal d/ o Duraiappah [1998] 7 MLJ 366.
In In the Estate of Hew Wai Kwong, Deceased; Sarah Abdullah (Petitioner) [2000] 5 CLJ 604, the High Court held that for a
testator to be capable of making a valid will, he must be able to understand the nature of the acts and its effects and the extent of
the property of which he is disposing. He must also be able to comprehend and appreciate the claims to which he ought to give
effect and the manner in which his property is to be distributed between them. The burden of proving testamentary capacity rests
on the person alleging the validity of the will. Thus, the petitioner had to prove that the testator was of sound mind, memory and
understanding and that the testator approved of and had knowledge of the contents of the will when he executed it. The court went
on further to say that all the steps taken in the making of the will were done and implemented by the petitioner. The petitioner was
undoubtedly and unambiguously the prime mover, while the testator was presented with a fait accompli. The acts and conduct of
the petitioner were absolutely unilateral, constituting absolutely dubious, nebulous and suspicious circumstances. A testator of
proper testamentary capacity will normally take precautions to alter his will or disinherit his near relations by referring to his usual
solicitors who have acted for him in previous occasions. However, in this instance, there was a change in the testator's usual
solicitors to the new solicitor who had never spoken to the testator regarding the disposition of his assets in the will. As the will
was prepared by the petitioner's own solicitor as the agent of the petitioner, the will could be construed as having been written or
prepared by the petitioner who took a substantial benefit under the will. The petitioner who did an act through an agent indeed did
it herself: qui facit per alium facit per se.
Undue influence. Animus testandi or testamentary intention will not be present in cases where the testator has been forced or
coerced into executing a document as his will: see Wingrove v Wingrove (1885) 11 PD 81; and Hall v Hall (1868) 1 P& D 481. The
burden of proof in allegations of undue influence rests with the party making the allegation. See Craig v Lamoureux [1920]
AC 349, Parfitt v Lawless (1872) 2 LR P & D 462, and Subramaniam v Rajaratnam [1957] MLJ 11, CA, where it was held that
once the party proving the will has shown that the testatrix knew and approved of the contents of the will, the burden is on the
party alleging undue influence to prove the same. The mere proof of the existence of the relation of parent and child, husband and
wife, doctor and patient, solicitor and client, confessor and penitent, guardian and ward or tutor and pupil does not raise a
presumption of undue influence to vitiate a gift by will; but a fiduciary relationship may affect the burden of proof on the issue of
knowledge and approval.
Fraud. Animus testandi will not be present where the testator was given false representation of a particular beneficiary. See
Wilkinson v Joughin (1886) 2 LR Eq 319, Re Loh Ah Tong, Low Siew Lan v Tan Ah Eng [1949] Supp MLJ 33, and Dr
Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC, where the party whose interest in the estate was
prejudiced by the alleged will disputed, the authenticity of the will alleging fraud and forgery, thereby compelling the executor to
propound the will in a solemn form and the court also noted that fraud in a civil case must be proven beyond a reasonable doubt. It
may also be pleaded in a probate action that the execution of the alleged will was obtained by fraud or forgery or undue influence:
see the Rules of the High Court 1980 (PU (A) 50/1980) O 71 r 13(3).
Suspicious circumstances. This doctrine only applies to the preparation or execution of the will and it cannot be applied beyond
this. If a testator leaves the whole of the property to the party who prepares the will, then this would create suspicious
circumstances and probate would not be granted. See Fulton v Andrew (1875) 7 LR HL 488; Tyrell v Painton [1894] P 151; Katchi
Fatimah v Mohamed Ibrahim [1962] MLJ 374; Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC; and Krishnaveni a/p Muniandy
v Sethambal d/o Duraiappah [1998] 7 MLJ 366. In Wintle v Nye [1959] 1 WLR 284, Viscount Simonds held as follows: 'The
degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be
so grave that it can hardly be removed. In the present case the circumstances were such as to impose on the respondent as heavy a
burden as can well be imagined. Here was an elderly lady who might be called old, unversed in business, having no one upon
whom to rely except the solicitor who acted for her and her family; a will made by him under which he takes the bulk of her large
estate.' In Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457, the High Court held that the circumstances attending the
execution of the 1992 wills were that suspicious that even if undue influence was not proved, which it was, the court was not
satisfied as to the righteousness of the transaction.
In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and Another Appeal [2005] 6 MLJ 540, CA, at or about the time the wills
in question were made, the deceased had some psychiatric problems. However, in the making of the wills, all the formal
requirements had been attended to. The Court of Appeal observed that when the learned judge's judgment in the lower court was
read as a whole it was apparent that he kept the test in Re R deceased (1951) P 10 at the forefront of his mind when evaluating the
evidence relied on as constituting suspicious circumstances. The 1990 wills in the case were therefore valid.
In Sarah bt Abdullah @ Hew Lee Ling (P) v Kwok Peck Wah (P) & Anor [2009] 6 MLJ 385, CA, the trial judge had found that the
petitioner was the prime mover of the execution of the will and that her acts and conduct constituted suspicious circumstances.
However, the Court of Appeal held that the chronology of events leading to the execution of the said will allayed any suspicion
that it was not executed by the deceased voluntarily and with full understanding of its contents, and that he had made his will and
changed it when he felt the need to do so. In the circumstances, it was found that the appellant was neither the prime mover of the
execution of the said will nor the person who took a substantial benefit under it but was merely abiding by the deceased's specific
instructions.
Knowledge and approval. The court would only admit a will to probate once the court is convinced that the testator had
knowledge and approved of the contents of the will: see Guardhouse v Blackburn (1866) 1 LR P & D 109.
In Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, the Court of Appeal held that a court of
probate must first be satisfied that a testator understood the dispositions of a will, and that it was duly executed by him as his will.
Once so satisfied, the court should not be concerned with the fairness of the will and must resist the natural temptation to set aside
a will on the ground that it did not appear to be fair, equitable or just.
In In the Goods of Geale (1864) 3 Sw & Tr 431, probate was only granted to the will of a testator who was dumb, blind and
illiterate when he was satisfied that the testator had, through various signs, shown that he knew and approved the contents of the
will. The onus of proof lies upon the persons propounding the will. See also Lim Gaik Teen Neoh v Lim Gaik Kee (1921) 2 BLSS
388; Re Eusoff Mohamed Salleh Anguilla (decd), Ahmad Mohamed Salleh Anguilla v Rahimaboo binte Mohamed Salleh Anguilla
[1939] MLJ 100; Morris v Norie Lim [1928-41] SCR 24; and Amanullah bin Haji Ali Hasan v Hajjah Jamilah bte Sheik Madar
[1975] 1 MLJ 30.
Writing. A will which is in writing provides strong evidence of the testator's wishes and reduces the scope of fraud after the
testator's death. The term 'writing' must be given a broad interpretation. Writing includes type-writing, printing, lithography,
photography, electronic storage or transmission or any other method of recording information or fixing information in a form
capable of being preserved: see the Interpretation Acts 1948 and 1967 (Act 388) (Consolidated and Revised 1989) s 3 (2 Statutes
& Statutory Interpretation). The will does not have to be in the testator's own handwriting; it can be typewritten or printed: see
In Re Moore [1892] P 378. The will may be written in ink or pencil or a combination of both. But if the words in pencil conflict
with the words in ink, the court will apply the presumption that the words in pencil were merely deliberative and not intended to
operate as the will: see In b Adams (1872) 2 LR P & D 367. The will can be in any language or code: see Whiting v Turner (1903)
89 LT 71. A will in a jeweller's code was admitted in Kell v Charmer (1856) 23 Beav 195. But if a will is in a language other than
English or Malay, then a translation must be filed when applying for probate; see the Rules of the High Court 1980
(PU (A) 50/1980) O 92 r 1. There is no particular form required when preparing a will. But it has to be in clear and simple terms.
This is to avoid difficulties as to the construction or meaning to be placed on the will after the testator's death. The will may be
written on any material. Paper would be the usual material used but in Hodson v Barnes (1926) 43 TLR 71, a will was written on
an empty egg shell. In Murray [1963] CLY 3621, a will was written on a cigarette packet and it was still admitted to probate.
In Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA, the trial judge had held the deceased's
will to be a forgery by accepting in its entirety the evidence of the two handwriting witnesses called by the plaintiffs and rejecting
the evidence of other, disinterested, witnesses. The Court of Appeal held that it was a well established general guide to the judicial
appreciation of handwriting evidence that where there is a sharp conflict between the direct testimony of a disinterested witness on
the one side and that of a handwriting expert on the other as to the genuineness of the execution of a document, then it is a safe
course for a court to prefer the direct evidence of the disinterested witness. Accordingly, it was held that the trial judge erred in not
preferring the evidence of the disinterested witnesses to that of the handwriting experts
Signed ... by the testator. The testator may sign his name in the usual manner. The testator may also mark the will in some way
intending the said marking to be the signature. Therefore the testator's initials (see In the Goods of Savoury (1851) 15 Jur 1042), a
stamped signature (see In the Goods of Jenkins (1863) 3 Sw & Tr 93), or a mark such as a cross or an inked thumb mark (see In the
Estate of Finn (1935) 105 LJP 36), or a mark of any shape (see In the Estate of Holtam (1913) 108 LT 732; In the Goods of Kieran
[1933] IR 222; and In the Estate of Bulloch [1968] NI 96), are sufficient to be construed as the testator's signature if the same was
intended by the testator to be the signature. A mark by the testator even though it was guided by another person is still considered
to be the testator's signature: see Wilson v Beddard (1841) 12 Sim 28; and Fulton v Kee [1961] NI 1. It is not permissible to let the
testator pass a dry pen over his or another signature already on the will because this is not an act of signing: see Casement v Fulton
(1845) 55 Moo PCC 130. Even if the testator dies before he can complete the signature, the said part-signature of the testator is
still valid as long as it can be shown that the said signature was the best that the testator could manage given the circumstances the
testator was put in: see In the Goods of Chalcraft [1948] P 222; cf Re Colling [1972] 1 WLR 1440; and In the Estate of Cook
[1960] 1 WLR 353 where the testatrix only wrote 'Your loving mother', and the court admitted the will to probate.
In In the Estate of Hew Wai Kwong, Deceased; Sarah Abdullah (Petitioner) [2000] 5 CLJ 604, the petitioner failed to prove that
the thumbprint at the attesting clause in the will was that of the testator. This was apparent from the evidence of the fingerprint
expert who was unable to prove that the thumbprint at pp 2 to 6 of the will was that of the testator. Therefore, the petitioner failed
to prove that the testator executed the will under s 5 of the Act. The will was said to be executed by the testator who was an old
and infirm person lying on a hospital bed with all the frailness, weakness and helplessness, without any record of medical
examination and findings. That fact completely negated the petitioner's effort or attempt to prove the testamentary capacity of the
testator. It followed that the will was invalid.
In Gan Yook Chin dan satu lagi lwn Lee Ing Chin @ Lee Teck Seng dan lain-lain [2000] 2 MLJ 70, the court held that based on the
evidence of the experts on handwriting, the signature in the will was not that of the deceased. The defendants' failure to produce
their witnesses who could provide opinions to the contrary was fatal to their case. Having examined the evidence of all the
witnesses, the deceased's soundness of mind and character as well as the testimony of the handwriting experts, the court held
beyond a reasonable doubt that the will was a forgery.
Or by some other person in his presence and by his direction. The will may be signed by some other person in the testator's
presence or on the testator's direction. The person signing may be one of the attesting witnesses. A person who signs on behalf of
the testator can sign either the testator's name or his own name: see In the Goods of Clarke (1839) 2 Curt 239.
At the foot or end thereof. The position of the signature shall be at the foot or at the end of the will. However, this section also
allows the signature to be valid even if the signature was placed at or after, or following, or under, or beside, or opposite of the end
of the will as long as it is apparent on the face of the will that the testator intended to give effect to the will by such signature: see
Re Roberts [1934] P 102; and In the Goods of Coombs (1866) 1 P & D 302. In Re Stalman (1931) 145 LT 339, the signature was at
the top of the page and the Court of Appeal held that the will was invalid. See also Re Harris [1952] P 319; and In the Estate of
Bercovitz [1962] 1 WLR 321. Probably the result would have been different if the testatrix had written 'I declare this to be the end
of my will' at the top of the page before she signed: see In the Goods of Kimpton (1864) 3 Sw & T 427.
Testator intended to give effect by such his signature to the ... will. The testator's signature must appear on the will after the
deposition to enable the will to be valid: see Wood and Another v Smith and Another [1991] 3 WLR 514, [1991] 2 All ER
939(1992) The Times 4 March, CA (Eng). Even if the will comprises of several unattached pages, the signature on the last page,
which was on top of the other pages at the time of execution, was sufficient to make all the sheets a testamentary document as the
documents were all in a room and the testator had control of the documents: see In the Estate of Little [1960] 1 WLR 495. There
must be no disposition appearing after the signature.
Signature of the testator in the presence of two or more witnesses present at the same time. In Khaw Cheng Poon & Ors v
Khaw Cheng Bok & Ors and Another Appeal [2005] 6 MLJ 540, CA, the Court of Appeal found that the wills in question failed
the test of formal validity. The witness who witnessed the said wills did so in the absence of the deceased. The court held that this
plainly did not meet the requirement of s 5.
The presence of the two witnesses means that evidence can be obtained regarding the circumstances of the execution of the will.
This would mean that both the witnesses must be aware of the fact that the testator would be signing the will. Even if one of the
witnesses was not aware of what was going on, the will is deemed to be not properly attested: see Brown v Skirrow [1902] P 3. The
witnesses need not know that the document of which they are attesting to is a will: see Keigwin v Keigwin (1843) 3 Curt 607. The
witnesses need not see the signature and therefore it is sufficient for the witnesses to see the testator in the act of signing: see Smith
v Smith (1866) 1 LR P & D 143; cf Blake v Blake (1882) 7 PD 102. Both witnesses must be present when the testator signs the will
or shows the signature to the witnesses, otherwise the will is not properly executed: see Re Groffman [1969] 1 WLR 733. The
testator, if having signed the will, now acknowledges the signature in the presence of the witnesses, the will is duly executed: see
Daintee v Butcher (1888) 13 PD 102. If the testator asks someone to sign the will on his behalf the same rules apply here in
relation to signing in the presence of two or more witnesses: see Inglesant v Inglesant (1874) 3 LR P & D 172.
Witnesses. There is no statutory provision which forbids any person from witnessing a will. There is also no statutory provision
which sets out who is qualified to witness a will: see 11(2) Halsbury's Laws of Malaysia W
,P
,A
S
(2007 Reissue) (Revised Title Scheme) [330.034]. Executors (see notes to s 11 post), creditors and their wives or husbands (see
notes to s 10 post) and beneficiaries and their wives or husbands (see notes to s 9 post) can all be witnesses to prove the execution
of the will but a gift to the attesting witness or to the wife or husband of such a witness is void: see s 9 post. A blind person cannot
act as a witness (see Re Gibson [1949] P 434), as he would not be able to prove the execution of the will. A mental patient or a
drunkard cannot be a witness (see Hudson v Parker (1844) 1 Rob Ecc 14), as these people would also not be able to prove the
execution of the will should the validity of the will be challenged. It is also inadvisable to allow minors to be a witness especially if
they are too young and are unable to understand the importance of the transaction.
Such witnesses shall subscribe the will in the presence of the testator. This would require the witness to sign or acknowledge
their own signatures in the presence of the testator: see Wright v Manifold (1813) 1 M & S 294; and Norton v Bazzett (1856) 164
ER 569. If the testator did not see the signature but saw the act of the witnesses in signing the will, then the will is valid: see
Casson v Dade (1781) 1 Bro CC. If the testator becomes unconscious when the witnesses were signing then there is noncompliance: see In b Chalcraft [1948] P 222. If the witness was blind then this requirement is satisfied if the blind testator could
have seen the witness sign or had the opportunity of doing so had he not been blind: see In b Piercy (1845) 1 Rob Ecc 278. The
witnesses need not sign the will in the presence of the other witness: see Dr K Shanmuganathan v Periasamy s/o Sithambaram
Pillai [1997] 3 MLJ 6, FC (where both attesting witnesses did not sign in the presence of each other and the court held that this did
not invalidate the will); and In b Webb (1855) Deas & Sw 1. There is no requirement that the witnesses place their signatures in
any particular place: see Roberts v Phillips (1845) 4 E & B 450. There is no required form for the witnesses' signature. As long as
the witnesses sign in their usual name or even if they leave any mark or initials, it is still valid: see Phipps v Hale (1874) 3 LR P &
D 166, and In b Sperling (1863) 3 Sw & Tr 272. The witness cannot ask another person to sign the will at the witness' direction in
the same manner the testator can.
No form of attestation shall be necessary. Although there is no requirement of an attestation clause, it is highly desirable to have
an attestation clause as it facilitates the grant of probate. In the absence of an attestation clause, the Registrar requires the execution
of the will to be established by way of affidavit evidence: see the Rules of the High Court 1980 (PU (A) 50/1980) O 71 rr 9 and 13.
An attestation clause also raises the presumption that the will was duly executed rather than if no such clause was present: see
Re Vere-Wardale [1949] P 395. Where there is an attestation clause, and the attesting witnesses are dead or otherwise not available,
the presumption of due execution may be applied: see Wright v Rogers LR 1 P & D 682. See also Dr K Shanmuganathan v
Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC, where the plaintiff, by alleging forgery, could compel the executor to
propound the will in solemn form.
6 Execution of appointment by will
(1)
No appointment made by will, in exercise of any power, shall be valid, unless the same is executed in manner hereinbefore
required.
(2)
Every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a 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.
Power of Appointment. By his will, the testator may exercise any power of appointment conferred on him and exercisable by
will: see Re Barnett [1908] 1 Ch 402. The testator may, under a settlement, have a life interest and the power to appoint the settled
property by will amongst his children or remoter issue. The instrument creating the power of appointment by will purports to
require special formalities to be observed when the power is exercised. The testator may want to have three witnesses instead of
two as required by the Act: see s 5 ante. Under these circumstances there is no need for the three witnesses. Therefore, there is no
need to have additional formalities except those prescribed in the Act. However, besides these formalities, if there are any other
requirements which were imposed by the testator then these requirements must be followed. In Cooper v Martin (1867) 3 Ch App
47, the court held that the requirement that the consent of a specified person has to be obtained must be observed (this is not a
formality). Where there is a power of appointment exercised by will, the appointee of the power must survive the donee of the
power in order to take, otherwise the power lapses: see Duke of Marlborough v Lord Godolphin (1759) 2 Ves 611. See also s 7
post.
7 Publication of will not necessary
Every will executed in manner hereinbefore required shall be valid without any other publication thereof.
Comparative Legislation. This section is the equivalent to s 13 of the Wills Act 1837 (c 26) (Eng).
Every will executed. See s 5 ante and notes thereto.
Publication. The publication of a will is a declaration by the testator to the witnesses that the will is his. Every will which is
executed in the prescribed manner by the testator who has testamentary capacity is valid without any other publication of the will.
Republication is when the testator reaffirms the will. Such reaffirmation is necessary especially if the testator executes a codicil. It
is merely a confirmation by the testator of the will: see Berkeley v Berkeley [1946] AC 555. In Re Moore (1907) 1 IR 315, the court
held that the principle of republication makes the will speak as if it had been re-executed at the date of the codicil, not as a rigid
formula or technical rule, but as a useful flexible instrument for effectuating a testator's intentions. Republication is possible by
either re-executing the will or confirming the will by executing a codicil to this effect. If no reference is made to the earlier will, in
the codicil or the latter will then there is no republication: see Re Smith (1890) 45 ChD 632; Skinner v Ogle (1845) 1 Rob Ecc 363;
and Re Harvey [1947] CH 285. The effect of republication is that the will takes effect on the date of republication: see
Goonewardene v Goonewardene [1931] AC 647. When an unattested alteration is made to a will after the execution but before
republication then the alteration will be admitted to probate on the presumption that it was made after the execution of the codicil
being rebutted: see In b Sykes (1873) 3 LR P & D 26 and see also s 15 post. A republication may incorporate a document into the
will, provided the conditions for such incorporation are satisfied; see In b Hunt (1853) 17 Jur 720. A will or codicil which is
ineffective because it has not been properly executed may be incorporated into a codicil by reference: see In b Heathcote (1881) 6
PD 30. If a will does not comply with the requirements of witnesses as laid down in s 9 post, it may be republished and other
persons may now act as witnesses thus giving effect to the will: see Anderson v Anderson (1872) 13 LR Eq 381. Any appointment
which is ineffective may be saved by republication under a codicil: see Re Blackburn (1890) 43 Ch D 75. If the republication
would cause a revocation clause in a will to defeat a codicil then the principles of republication would not be applied: see In b
Rawlins (1879) 48 LJP 64; and Fairweather v Fairweather (1944) 69 CLR 121.
8 Will not to be invalidated by reason of incompetency of attesting witness
If any person who attests the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent
to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.
Any person who attests. See s 5 ante and notes thereto. This is basically confined to the attesting witnesses. The will is still valid
even if the attesting witnesses are found to be incompetent. This section does not apply to privileged wills as privileged wills do
not require attesting witnesses: see s 26 post.
9 Gifts to an attesting witness or to wife or husband of attesting witness to be void
If any person attests the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest,
gift or appointment of or affecting any property, other than and except charges and directions for the payment of any debt or debts,
shall be thereby given or made, such device, legacy, estate, interest, gift or appointment shall, so far only as concerns such person
attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or
husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution or to prove the
validity or invalidity thereof, notwithstanding such devise, legacy, interest, gift of appointment mentioned in such will.
Comparative Legislation. This section is equivalent to s 15 of the Wills Act 1837 (c 26) (Eng).
General note. This rule is necessary to ensure reliable, unbiased witnesses for due execution: see In the Estate of Bravda [1968] 1
WLR 479. But there are certain exceptions to the operation of this section. When a soldier, making a privileged will under s 26
post, makes a will intended by him to be an informal will, a gift to one of the attesting witnesses is valid: see Re Limond [1915]
2 Ch 240. This section does not apply if the beneficiary signed the will, not in order to attest the will, but for some other purpose,
such as in agreeing to the contents contained therein: see In the Goods of Sharman (1869) 1 LR P & D 661: and In the Goods of
Smith (1889) 15 PD 2. If the beneficiary was not the attesting witnesses' spouse at the time of attestation, the will is still valid: see
Thorpe v Bestwick (1881) 6 QBD 311. This section does not apply if the beneficiary/witness is a trustee of a gift under the will: see
Cresswell v Cresswell (1868) 6 LR Eq 69. If the gift is later confirmed by a subsequent will or codicil not attested by the
beneficiary/witness or spouse then the gift is valid: see Re Marcus (1887) 57 LT 399. This section does not apply if the
beneficiary/witness takes under a secret trust: see Re Young [1951] Ch 185.
Legacy. There are three kinds of legacies namely, (i) a specific legacy, (ii) a general legacy and (iii) a demonstrative legacy. A
specific legacy is a specific res secured under the testator's will on the death of the testator. It does not abate if the rest of the assets
are insufficient for the payment of general legacies, but if the particular res which is the subject of the specific legacy disappears in
the meantime, then the legatee gets nothing. The other type of legacy is a general legacy. This asset comes out of the residue and
abates if the residue is insufficient. Between the specific legacy and the general legacy, there is an intermediate class of legacy,
namely a demonstrative legacy. This is a general legacy, with the quality attached to it that it is directed to be paid out of a specific
fund, and, if there is a shortage of assets and that fund remains, it is paid out of that fund without abating. If the fund disappears,
then this legacy has an advantage over a specific legacy, that it is still payable, in virtue of its quality of a general legacy, out of the
testator's residue along with other general legacies: see Walford v Walford [1912] AC 658.
Specific legacy. A specific legacy is a gift by will of a particular part of the testator's personal estate. The particular thing given
must be part of the testator's estate at his death and the gift must be described in such a way so as to sever or distinguish it from the
rest of the estate: see Bothamley v Sherson (1875) 20 LR Eq 304. A gift of certain types of shares is not a specific legacy if there is
nothing to indicate that the testator was referring to shares belonging to him: see Re Willcocks [1921] 2 Ch 237; and Re Gage
[1934] 1 Ch 536. A gift of part of a specified fund is a specific legacy: see Ford v Fleming (1728) 2 PW 469. A gift of the whole of
the testator's personal estate may be specific: see Roffe v Early (1873) 42 LJ Ch 472. But if a gift is given to a beneficiary with
certain exceptions then it is not a specific legacy: see Robertson v Broadbent (1883) 8 App Cas 812; and Bothamley v Sherson
(1875) 20 LR Eq 304.
A specific legacy fails if at the testator's death the subject matter of the gifts has been destroyed or converted into something else
by any act of the testator. A legacy of specific chattels is adeemed if they are sold during the testator's lifetime (see Ashburner v
MacGuire (1786) 2 Bro CC 108) or if they are lost or destroyed during the testator's death. Even if the goods are insured, the
legatee has no right to the insurance monies: see Durrant v Friend (1851) 5 De G & S 343. If the testator sells off the whole or part
of the securities, then the gift will adeem either wholly or 'pro tanto': see Asburner v Macquire (supra). Even if the testator
subsequently purchases replacement securities, the gift will not be revived: see Re Gibson (1886) 2 LR Eq 669.
Where the company converts its shares and stocks then there is no ademption: see Oakes v Oakes (1852) 9 Ha 666. Where there is
a sub-division of the company shares then there is no ademption: see Re Clifford [1912] 1 Ch 29. If chattels are removed to another
place, the gift is still valid: see Lord Brooke v Earl of Warwick (1803) 2 De G & Sm 425; Re Johnson (1884) 26 Ch D 538;
Domville v Taylor (1863) 32 B 604; and Rawlinson v Rawlinson (1876) 3 Ch D 302. But if an item is permanently removed then
the gift shall fail: see Re Zouche [1919] 2 Ch 178. A contract of sale entered into by the testator after the date of the will, though
not completed until after the testator's death, will cause the gift to adeem: see Re Edwards [1958] Ch 168. The legatee shall
however, be entitled to enjoy the property until the sale is completed: see Townley v Bedwell (1808) 14 Ves 591. But if the testator
makes a binding contract for sale, giving the property away before making the will, then the beneficiary is entitled to the proceeds
of sale: see Re Calow [1928] Ch 710; and Re Pyle [1895] 1 Ch 724. Where a beneficiary is entitled to a specific gift of property
which is later impressed with an option to purchase granted by the testator to a third party, the beneficiary is entitled to nothing
even if the third party does not exercise the option after the testator's death. However, the beneficiary is entitled to the use of the
property until the option is exercised: see Lawes v Bennet (1785) 1 Cox 167; Drant v Vause (1842) 1 Y & CC 580; and Weeding v
Weeding (1859) 1 J & H 424.
General legacies. A general legacy is not part of the testator's estate. The gift is to be provided out of the testator's general estate:
see Bothamley v Sherson (1875) 20 LR Eq 304. If the shares in a general legacy cease to exist at the testator's death then the
general legacy will fail: see Robinson v Addison (1840) 2 Beav 515; and Re Plowright [1917] VR 128. Besides that, generally,
these type of gifts are not subject to ademption since they are to be provided out of the general estate: see Bothamley v Sherson
(1875) 20 LR Eq 304. But where the general legacy is to be paid out of a particular fund and that particular fund no longer exists
then the gift shall adeem.
Demonstrative legacies. A demonstrative legacy has two parts. The reason why its nature is general is that the payment of the
legacy is of primary importance while the fund pointed to is only of secondary importance: see Ashburner v MacGuire (1786) 2
Bro CC 108.
Devise. There are two types of devise, namely specific devise and general or residuary devise. A specific devise is a gift of real
property under a will. The gift must be part of the testator's estate at his death and it must be described in such a way so as to sever
or distinguish it from the rest of the estate. A general or residuary devise, is a gift of real property by description. Where a specific
devise of land which is afterwards sold even though the proceeds may be impressed with a trust for reinvestment in land, the
devisee is not entitled to the same: see Re Bagot's Settlement (1862) 31 LJ Ch 772.
10 Creditor attesting a will charging estate with debts shall be admitted a witness
In case by any will any property shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor,
whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a
witness to prove the execution of such will, or to prove the validity or invalidity thereof.
Comparative Legislation. This section is equivalent to s 16 of the Wills Act 1837 (c 26) (Eng).
11 Executor not incompetent to be a witness
No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of
such will or a witness to prove the validity or invalidity thereof.
Comparative Legislation. This section is equivalent to s 17 of the Wills Act 1837 (c 26) (Eng).
Executor. The Probate and Administration 1959 (Act 97) (Revised 1972) s 2 (4 Succession) defines an 'executor' as a person to
whom the execution of the last will of a deceased person is, by the testator's appointment, confided and includes a person deemed
to be appointed executor with respect to settled land. It is not uncommon to have solicitors acting as executors. Solicitors would
then put in a clause in the will so as to obtain remuneration for their services. But if the solicitor or the solicitors' spouse is the
witness, then the charging clause may be caught under s 9 ante: see Re Pooley (1888) 40 Ch D 1.
In Re Estate of Teoh Cheow Choon (deceased) [1994] 3 AMR 2438, it was held that an executor is the person appointed by the
testator to execute the will and as such, he is not required to give a bond or to provide sureties or to obtain leave of the Court for
the due performance of his duties cf the Public Trust Corporation Act 1995 (Act 532) s 2 (8 Trusts & Settlements) where the
word 'executor' was defined as a person to whom the execution of the last will of the person is, by the testator's appointed,
confided.
In Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin & Anor [2003] 2 MLJ 97, the Court of Appeal held that the mere fact
that the first defendant, being the propounder of the will, was present at the execution of the will by the deceased did not throw any
doubt on the validity of the will.
12 Will to be revoked by marriage except in certain cases
Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of
appointment, when the property thereby appointed would not in default of such appointment pass to his or her heir, executor or
administrator or the person entitled in case of his or her intestacy:
Provided that a will expressed to be made in contemplation of a marriage shall not be revoked by the solemnisation of the marriage
contemplated; and this proviso shall apply notwithstanding that the marriage contemplated may be the first, second or subsequent
marriage of a person lawfully practising polygamy.
Comparative Legislation. This section is equivalent to s 18 of the Wills Act 1837 (c 26) (Eng).
Marriage. The Law Reform (Marriage and Divorce) Act 1976 (Act 164) s 27 (10 Family Law) requires every marriage to be
registered. The Law Reform (Marriage and Divorce) Act 1976 s 34 however states that the fact that the marriage was not
registered does not render the marriage valid or invalid. In Leong Wee Shing v Chai Siew Yin [2000] 5 MLJ 162, the High Court
recognised the customary marriage even though the said marriage was not registered. In so far as this section is concerned, a
marriage automatically revokes any will made by the testator where the will was made before the testator was married. The
purpose of a will is to protect and benefit the testator's widow in case the testator should forget to change the will which was made
before the testator's marriage. For the purposes of this section, marriage includes a voidable marriage but not a void marriage: see
the Law Reform (Marriage and Divorce) Act 1976 ss 5 and 6 (1). Therefore, if a marriage is either valid or voidable, as a general
rule, the will is revoked. A will previously revoked through marriage may be revived: see Re Wan Kee Cheong [1975] 2 MLJ 152.
Power of Appointment. See notes to s 6 ante. The testator before marriage makes a will which, inter alia, exercises a power of
appointment and where the instrument authorising the testator to exercise the power provides that in default of appointment the
subject matter of the power shall devolve on persons other than the next-of-kin of the testator: see In b Gilligan [1950] P 32.
Contemplation of marriage. A will in contemplation of marriage must be expressed to be in contemplation of marriage: see Re
Coleman [1976] Ch 1. For this section to operate, the testator must contemplate marriage to a particular person: see Re Hamilton
[1940] VLR 60; and Sallis v Jones [1936] P 43. But it must be borne in mind that the words 'to a particular person' is peculiar to s
18(3) of the Wills Act 1837 (c 26) (Eng). It would seem that in Malaysia even if the marriage is contemplated to the first, second or
subsequent marriage of a person lawfully practising polygamy, it is still valid as long as it is expressed in the will that the will is
made in contemplation of the first, second or subsequent marriage to a particular person.
13 No will to be revoked by presumption from altered circumstances
No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.
14 Revocation of will
No will or any part thereof shall be revoked otherwise than as aforesaid, or by another will executed in manner hereinbefore
required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore
required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his
presence and by his direction, with the intention of revoking the same.
Comparative Legislation. This section is equivalent to s 20 of the Wills Act 1837 (c 26) (Eng).
No will or any part ... than as aforesaid. See notes to s 12 ante.
Intention to revoke. The testator must intend to revoke the will. A revocation clause will have no effect if the testator did not
know and approve of its presence: see Re Phelan [1972] Fam 33; and In b Oswald [1874] 3 LR P & D 162. A revocation clause
may be limited in its ambit or conditional on certain events: see In the estate of Wayland [1951] 2 All ER 1041. The document in
which the revocation clause is contained need not be in the form of a will. It is sufficient if it is in a document which is executed
with the necessary formalities: see Re Spracklan's Estate [1938] 2 All ER 345.
In Re Mana Seena Veeran (decd), Rajoo s/o Magalee Karuppiah v Hussain s/o MS Veeran [1976] 1 MLJ 1, [1975-1977] SLR 372,
the court held that though a testator may have done everything which he considered necessary to revoke his will, the will is not
revoked if he has not adopted one or other of the modes of revocation laid down in the Wills Act (Cap 41) (Sing). It is not the law
that mere intention or even attempt of a testator to revoke his will, is sufficient to produce revocation within the meaning of the
Wills Act, for the legislature having pointed out certain modes by which a will may be revoked, it is not in the power of the court,
under any circumstances, to dispense with any of its requisites, and accept the mere intention or endeavour to perform the
prescribed act, as a substitute or equivalent for the act itself, though the intention or endeavour may have been frustrated by the
improper behaviour of a third person.
Burning, tearing or otherwise destroying the same. There are two elements that must be satisfied: an act of destruction and an
intention to revoke (animus revocandi) (see Cheese v Lovejoy (1877) 2 PD 251). The act of destruction must be one specified in s
20 of the Wills Act 1837 (c 26) (Eng), that is, burning or tearing or etc. Cutting the will up with a pair of scissors will do: see
Hobbs v Knight (1836) 1 Curt 768, or scratching the words of the will out with a knife will do: see In b Morton (1887) 12 PD 251,
CA (Eng). Crossing the will with a pen and indorsing the words 'all these are revoked' and crumpling the will into a ball and
kicking it into a corner of his sitting room is not an act of destruction: see Cheese v Lovejoy (supra).
Destruction of the whole will is not necessary in order to have revocation by destruction. If a vital part of the will has been
destroyed then the whole will is revoked. Vital part of the will means either the testator's signature or the witnesses' signature: see
Hobbs v Kinght (supra); In b Morton (supra); and In b Gullan (1858) 1 Sw & Tr 23. There can be revocation of a part of the will
only, as opposed to the whole will. As such, if the court is satisfied that the testator intended the remainder of the will to be
effective, it shall be admitted to probate: see Re Everest [1975] Fam 44; and In b Nunn (1936) 105 LJP 57. But if the remainder of
the will becomes unintelligible without the missing parts then the whole will is held to be revoked: see Leonard v Leonard [1902]
P 243; cf In Re Woodward (1871) 2 LR P & D 206. If revocation takes place when the testator was drunk or under the influence of
drugs then there is no revocation of the will: see Brunt v Brunt (1873) 3 P & D 37. If the will was torn on a mistaken belief then
there is no revocation of the will: see In the estate of Southerden [1925] P 177 (CA).
Not every tearing of the will can be regarded as cancellation of the will. The act of destruction must be completed: see
Doe D Perkes v Perkes (1820) B & Ald 489. If the will is found to be mutilated and was always in the possession of the testator
then the presumption is that the testator destroyed the will: see Lambell v Lambell (1831) 3 Hagg Ecc 568; cf Cowling v Cowling
[1924] P 113; and Welch v Phillips (1836) 1 Moo PCC 299. If a draft copy of the will was admitted to probate as secondary
evidence of the will and the maxim omnia praesumuntur rite essa acta (all acts are presumed to have been done rightly and
regularly) would have applied in the absence of evidence to the contrary: see Re Webb [1964] 1 WLR 509.
By some person in his presence and by his direction, with the intention of revoking the same. If the testator cannot see the
destruction of the will then it is ineffective: see In b Dadds (1857) Dea & Sw 290. There must be authority to revoke the will: see
Gill v Gill [1909] P 157; and Mills v Millward (1890) 15 PD 20.
15 Effect of obliteration, interlineation or alteration
No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect
except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed
in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be
deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some
other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such
alteration and written at the end or some other part of the will.
Comparative Legislation. This section is equivalent to s 21 of the Wills Act 1837 (c 26) (Eng).
General note. This section requires all alterations to a will to be re-executed. In Blewitt (1880) 5 PD 116, the court allowed initials
instead of signatures to be used when attesting alterations. In Re Dewell (1853) 1 Ecc & Ad 103, the court accepted the
acknowledgment of existing signatures for the purpose of giving validity to the alterations. But such acknowledgments were not
accepted in In b Shearn (1880) 50 LJ P 15. Since s 5 ante allows the testator to acknowledge signatures, it may be that such
acknowledgments are accepted for alterations as well. If there is non compliance with the requirements of alterations, the will may
not be admitted to probate: see In Re White (deceased), Barker v Gribble and Another [1991] Ch 1.
Obliteration. To delete, to erase, to wipe out. Some obliterations are direct whereas there are circumstances where obliterations
may be conditional. Words in a will may only have been obliterated subject to certain conditions taking effect. If they do not occur
then the obliteration will not operate as revoking that part of the will: see In b Horsford (1874) 3 LR P & D 211; and In b McCabe
(1873) 3 P & D 94.
After the execution. This section refers to alterations made after the execution and does not apply to alterations made before the
execution of the will. In Cooper v Bockett (1846) 4 Moo PC 419, the court held that it was a rebuttable presumption that all
alterations were made after the will was executed. It is due to this presumption that all alterations must be attested so as to comply
with s 15 and avoid any difficulties that may arise in proving that the alterations were in fact made before the execution of the will.
But if there is evidence to rebut the presumption then this evidence may be accepted by the court: see Keigwin v Keigwin (1843) 3
Curt 607; and In the Estate of Oates [1946] 2 All ER 735. Sometimes alterations may be made after the execution but before the
re-execution, such alterations shall be admitted to probate if the presumption is rebutted; see In b Shearn (1880) 50 LJP 15. Where
a codicil is made to a will it would have the effect of republishing it and the date of the will shall be considered as the date of the
execution of the codicil. As such if there are unattested alterations in the will, these alterations shall be valid provided the
presumption that the unattested alterations in the will were made after the codicil was executed is rebutted: see In b Sykes (1873) 3
LR P & D 26. The codicil must refer to the alteration(s) made in the will: see Re Hay [1904] 1 Ch 317.
Such alteration as part thereof ... the will opposite or near to such alteration. It is opined that the original witnesses to the will
may not be required to sign the alteration. The witnesses need only subscribe their initials: see Blewitt (1880) 5 PD 116.
Not apparent. The meaning of the word 'apparent' means on the face of the instrument itself: see Townley v Watson (1844) 3 Curt
337. The test laid down in the cases to determine whether the words in a will are 'not apparent' is based on whether an expert can
decipher them by natural means, that is, by inspecting the document in the condition it was left by the testator: see In b Ibbetson
(1839) 2 Curt 337. It is permissible to hold the document up to the light and to use magnifying glasses but this is as far as the
inspection goes: see In the goods of Horsford (1874) 3 LR P & D 211. It is not permissible to use infra-red photography to discover
what is beneath the obliteration: see In b Itter [1950] P 130.
16 Revival of revoked will
(1)
No will or any part thereof which has been revoked in any manner shall be revived otherwise than by the re-execution thereof, or
by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
(2)
When any will which has been partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much
thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary be shown.
Comparative Legislation. This section is equivalent to s 22 of the Wills Act 1837 (c 26) (Eng).
No will ... which has been revoked ... shall be revived. A revoked will may be revived by re-executing the revoked will in
accordance with s 5 ante, or by executing a codicil which shows an intention to revive the revoked will. Besides these two
methods, there are no other methods of reviving a revoked will. Attaching a codicil to a revoked will by means of a tape does not
evince any evidence of reviving the will: see Marsh v Marsh (1860) 1 Sw & Tr 528. An earlier will cannot be revived merely by
revoking the later will: see In b Hodgkinson [1893] P 339. A codicil cannot revive a will which had no existence: see Rogers v
Goodenough (1862) 25 Sw & Tr 342. A will previously revoked through marriage may be revived: see Re Wan Kee Cheong (decd)
[1975] 1 MLJ 150, [1975] 2 MLJ 152, FC.
In Re Wan Kee Cheong (decd) (supra), the court held that it was immaterial whether the testator knew that the will had been
revoked by his marriage. The words 'in all other respects I confirm my said will' was a clear indication of the testator's intention to
revive the said will.
Intention. If there is a codicil made to revive an earlier will, the codicil must show an intention to revive the earlier will: see In b
Steele (1868) 1 LR P & D 575; Re Baker [1929] 1 Ch 668; and Re Dear [1975] 2 NZLR 254. A mere statement in a codicil to a
revived will is not, it seems, sufficient to revive the will. The Act (which is equivalent to the English Wills Act 1837 (c 26) (Eng))
requires further indication of the testator's intention: see Re Dennis [1891] P 326; and Goldie v Adam [1938] P 85.
17 Subsequent conveyance or other acts not to prevent operation of will
No transfer, conveyance, assignment or other act made or done subsequently to the execution of a will or codicil of or relating to
any property therein comprised, except an act by which such will or codicil shall be revoked as aforesaid, shall prevent the
operation of the will or codicil with respect to such estate, right, share or interest in such property as the testator shall have power
to dispose of by will at the time of his death.
18 Wills shall be construed to speak from the death of the testator
Every will shall be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed
immediately before the death of the testator, unless a contrary intention shall appear by the will.
Comparative Legislation. This section is equivalent to s 24 of the Wills Act 1837 (c 26) (Eng).
Property. See s 2 ante for definition. This section implies that the gifts (specific, general or residuary) were made before the death
of the testator. In Bothamley v Sherson (1875) 20 LR Eq 304; and Re Sikes [1927] 1 Ch 364, if a property was obtained after the
will was executed, this property shall not be considered as part of the will if the will is to be construed as at the date of the will: see
Re Champion [1893] 1 Ch 101; cf Re Fleming's Will Trusts [1974] 1 WLR 1552.
Contrary intention. If there is a contrary intention then s 24 post does not apply. In Re Evans [1909] 1 Ch 784, the testator
devised his house and effects known as Cross Villa, situated in Templeton. However later the testator divided the grounds and
created two new plots and erected two semi-detached houses. The court held that the precision of description in the will showed a
contrary intention so that all the property passed. If s 24 post was not to be excluded then the property passing to the beneficiaries
under the will would have been excluded: see also Re Clifford [1912] 1 Ch 29.
19 Residuary devises or bequests shall include estates comprised in lapsed and void devises or bequests
Unless a contrary intention appears by the will, such property as is comprised or intended to be comprised in any devise or bequest
in such will contained, which fails or is void by reason of the death of the devisee or legatee in the lifetime of the testator or by
reason of such devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in the residuary
devise or bequest respectively, if any, contained in the will.
Property. See note to s 2 ante.
Devises. See note to s 9 ante.
Bequests. To leave by will: see the Oxford Universal Dictionary Illustrated (3rd Edn).
Fails or is void by ... death of the devisee or legatee in the lifetime of the testator ... being contrary to law or otherwise
incapable of taking effect. The legal effect of s 19 is that a lapsed gift must be included in and form part of the residuary devise or
bequest, if any, contained in the will: see Tay Seck Loong @ Tay Seck Long & Ors v Teh Chor Chen & Ors [2005] 7 MLJ 612.
This section only applies to general residuary devises: see Springett v Jenings (1871) 6 LR Ch App 333, 40 LJ Ch 348, 24 LT 643;
cf Re Davies [1928] Ch 24. If a residuary gift in a will fails, the residuary estate goes on to intestacy. If a gift of a share in a
residuary estate fails, then the share goes into intestacy. A residuary gift sweeps up property not effectively disposed of by any
other form of gift, but it does not sweep up property not effectively disposed of by the residuary gift itself: see Skrymsher v
Northcote (1818) 1 Sw 566 at 570. If the testator had given a property to a person for life and this gift fails (because the
beneficiary is also the witness or the beneficiary is guilty of murder of the testator) then the gift in remainder is accelerated and
takes effect immediately: see Lainson v Lainson (1854) 5 De G M & G 754; Jull v Jacobs (1876) 3 Ch D 703; and Re Flower's
Settlement Trusts [1957] 1 WLR 401 at 405. But if a gift in remainder is only contingent then the remainder is not accelerated: see
Townsend's Estate (1886) 34 Ch D 357; Re Scott [1975] 1 WLR 1260; cf Re Dawson's Settlement [1966] 1 WLR 1456.
In Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, the Court of Appeal found that it was clear
from the circumstances of the case that it was not the intention of the deceased for the gift of shares in that case to take effect at
once because, had that been his intention, he would have simply handed over the shares to each of his children long before his
death. The fact that the deceased kept them in his safe and under his control, though marked for each of the intended recipients,
showed an intention on his part that the gift was to take effect only after his death. Therefore, the court held that the so-called gift
of the shares was in reality a testamentary gift but since it was not made in accordance with the provisions of the Wills Act 1959, it
was void. The shares were therefore held to form part of the deceased's estate.
Contrary intention. But if there is a contrary intention then this section does not apply: see Evans v Field (1839) 8 LJ Ch 264; Re
Palmer [1893] 3 Ch 369, and Re Allan [1903] 1 Ch 276. This section only applies to gifts which fail but not to a situation where
one or more of the beneficiaries are not able to take the gift: see Morley v Bird (1798) 3 Ves 629. This section also does not apply
where a presumptive member of the class dies in the testator's lifetime: see Doe d Stewart v Sheffield (1811) 13 East 526 or where
a beneficiary is incapable of taking because the beneficiary is the attesting witness: see Fell v Biddolph (1875) 10 LR CP 701; and
Re Coleman and Jarrom (1876) 4 Ch D 165; or where the beneficiary is guilty of manslaughter of the testator, see Re Peacock
[1957] Ch 310.
20 General devise or bequest of property shall include property over which the testator has general power of appointment
A general devise or bequest of the estate or property of the testator described in a general manner shall be construed to include any
property to which such description shall extend which he may have power to appoint in any manner he may think proper and shall
operate as an execution of such power unless a contrary intention shall appear in the will
Comparative Legislation. This section is equivalent to s 27 of the Wills Act 1837 (c 26) (Eng).
General note. This section provides that any general gift of real or personal estate shall be construed so as to cover such property
over which the testator has a general power of appointment and shall operate as an execution of that power unless there is a
contrary intention.
Shall operate as an execution of such power. Where a testator gives a beneficiary power to direct that a given sum may be raised
and paid to such persons as the donee thinks fit, this is a general power of appointment: see Re Jones (1886) 34 Ch D 65; and Re
Wilkinson [1910] 2 Ch 216. There is a general power of appointment where the testator gives a gift of all property which the
testator has power to dispose: see Bristow v Skirrow (1859) 27 B 585. Disposition of the testator's personal estate shall consist of
money or securities for money or all stocks, shares and securities which the testator possesses or is entitled to is a general power:
see Turner v Turner (1852) 21 LJ Ch 843; Re Jacob [1907] 1 Ch 445; and Re Doherty-Waterhouse [1918] 2 Ch 269. General
pecuniary legacy is also within this section as it constitutes a 'bequest of personal property described in general manner': see
Hawthorn v Shedden (1856) 3 Sm & G 293. But where there is a contrary intention then this section has no application: see
Scriven v Sandom (1862) 2 J & H 743; Re Spooner's Trust (1851) 2 Sim (NS) 129; and Re Box's Settlement (1945) 172 LT 312.
But in the following cases the court held that there was no contrary intention: see Re Jarrett [1919] 1 Ch 366; and Moss v Harter
(1854) 2 Sm & G 458.
21 Devise or bequest without words of limitation
Where property is devised or bequeathed to any person without any words of limitation, such devise or bequest shall be construed
to pass the fee simple or other the right to the whole estate or interest in such property which the testator had power to dispose of
by will unless it appears by the will that only a restricted interest was intended for such devisee or legatee.
Comparative Legislation. This section is equivalent to s 28 of the Wills Act 1837 (c 26) (Eng).
Limitation. A gift for the 'lifetime' of the beneficiary did not constitute words of limitation: see Re Minchell's Will Trust [1964] 2
All ER 47. If the proper construction of the gift shows that the testator intended merely a life interest, then the use of a phrase like
'whatever remains' will not stop that intention from being fulfilled: see Re Cameron (1967) 62 DLR (2d). In Hancock v Watson
[1902] AC 14, Lord Davey stated : 'If you find an absolute gift to a legatee in the first instance and trusts are engrafted or imposed
on that absolute interest which fail either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as
the trusts have failed, to the exclusion of the residuary legatee or next-of-kin as the case may be': see also Fyffe v Irwin [1939] 2
All ER 271; and Lassence v Tierney (1849) 1 Mac & G 551. If the gift runs straight into a whole series of limitations, the gift is
obviously limited: see Re Payne [1927] 2 Ch 1.
Fee simple. To hold as one's absolute and rightful possession.
22 Construction of words importing want or failure of issue
In any devise or bequest of property the words "die without issue" or "die without leaving issue", or any other words which may
import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue,
shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite
failure of his issue, unless a contrary intention shall appear by the will:
Provided that this section shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift
shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining
a vested estate by a preceding gift to such issue.
23 Devise or bequest of property to trustee or executor
Where any property shall be devised or bequeathed to any trustee or executor, such devise or bequest shall be construed to pass the
fee simple or other the right to the whole estate or interest in such property which the testator had power to dispose of by will
unless a lesser interest in such property shall thereby be given to him expressly or by implication.
24 Devise or bequest of property to trustee without limitation
Where any property shall be devised or bequeathed to a trustee, without any express limitation of the estate to be taken by such
trustee, and the beneficial interest in such property, or in the surplus rents and profits thereof, shall not be given to any person for
life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of
such person, such devise or bequest shall be construed to vest in or pass to such trustee the fee simple, or other the right to the
whole legal estate or interest in such property which the testator had power to dispose of by will, and not an estate determinable
when the purposes of the trust shall be satisfied.
25 Devises or bequests to children or other issue who leave issue living at the testator's death shall not lapse
Where any person, being a child or other issue of the testator, to whom any property shall be devised or bequeathed for any estate
or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such
issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take
effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall
appear by the will.
26 Privileged wills of soldiers, airmen and sailors
(1)
A member of the armed forces of Malaysia being in actual military service, and a mariner or seaman (including a member of the
naval forces of Malaysia) being at sea may dispose of his property or of the guardianship, custody and tuition of a child or may
exercise a power of appointment exercisable by will by a privileged will.
(2)
For the purposes of this section a privileged will means any declaration or disposition, oral or in writing, made by or at the
directions of the testator which manifests the intentions of the testator which he desires to be carried or to the guardianship,
custody and tuition of a child or to the exercise of a power of appointment.
(3)
A declaration may be a valid privileged will notwithstanding that it was not executed in the manner appearing to have been
intended by the testator or that it was intended by the testator subsequently to execute a formal will to give effect to his
testamentary dispositions, unless it appears that the failure to execute such declaration in such manner or such formal will was due
to the abandonment by the testator of the testamentary intentions expressed by such declaration.
(4)
Sections 4, 5 and 6 shall not apply to privileged wills, nor is it necessary for a written privileged will to be signed by the testator.
(5)
A privileged will other than a will which apart from the provisions of this section would have been valid under this Act shall be
null at the expiration of one month after the testator being still alive has ceased to be entitled to make a privileged will.
Comparative Legislation. This section is equivalent to s 11 of the Wills Act 1837 (c 11) (Eng).
General note. A minor can make a privileged will.
Armed forces. It includes all members of the army, air force and navy. It may also include the police force.
In actual military service. In Re Wingham [1949] P 187, the Court of Appeal held that 'in actual military services' means that any
soldier, sailor or airman serving the Armed Forces in connection with military operations which are or have been taking place or
are believed to be imminent. It does not include officers on half-pay or men on the reserve, or the territorials, when not called up
for service. It does not include members of the forces serving in this country or on routine garrison duty overseas, in time of peace,
when military operations are not imminent. It includes all men and women serving or called up for service during a war. It includes
not only those actively engaged with the enemy but all who are training to fight them. It includes not only the fighting men, but
also those who serve in the forces, doctors, nurses, chaplains. It includes all of them whether they are in the field or barracks in
billets or sleeping at home. It includes them not only in war but where war is imminent. In case of doubt as to whether the soldier
is involved in military operations, the soldier should be given the benefit of the privilege. In Re Jones [1981] 1 All ER 1, a soldier
who was shot while on military patrol told his officers, whilst on the way to hospital that 'If I don't make it, Ann gets all the stuff'.
The court held that the soldier was in actual military service. A soldier sent to Malaya in 1955 to deal with terrorist activities is in
actual military service: see In the Will of Anderson (1958) 75 WN (NSW) 334. Although the words must be spoken or written
animo testandi, the deceased need not be aware that he is making a will: see Re Stable [1917] P 7.
Mariner or seaman ... at sea. In In b Sarah Hale (1915) 2 IR 362, the court held that a wide interpretation should be given and it
includes any member of the Royal Navy from the highest to the lowest. A typist employed on board the Lusitania on a voyage
from Liverpool to New York is entitled to the privilege: see In b Sarah Hale (supra). A barman on a liner is entitled to privilege:
see In the Estate of Knibbs [1962] 1 WLR 852.
At sea. The testator is 'at sea' and made the will while moored or sailing on a river: see In b Patterson (1898) 79 LT 123. A will
made while engaged in naval operations on a river is privileged: see In b Austen (1853) 2 Prob Eccl 681. For a situation where the
deceased was ashore in the middle of a voyage when a privileged will was made, see In b Lay 2 Curt 375; cf In b Corby (1854) 1
Spink & Adm 292. A seaman is not 'being at sea' if his boat is laid up and he is ashore: see Barnard v Birch (1912) 2 IR 404. A
mate in the Royal navy was entitled to privilege at a time when he was serving on board a ship permanently stationed in
Portsmouth harbour and there being no immediate intention to send her to sea: see In b M'Murdo (1868) 1 LR P & D 540. A nurse
under contract by the War Office on hospital ships is regarded as 'being at sea': see In the Estate of Ada Stanley [1916] P 192.
Power of appointment. See note to s 6 ante.
Testamentary intentions. See notes on animus testandi in s 5 ante.
27 Wills executed abroad
A will executed outside Malaysia in the manner required by(a)
(b)
(c)
(d)
this Act, or
the law of the place where it was executed, or
the law of the testator's domicile at the time of its execution, or
the law of the testator's domicile at the time of his death,
shall be deemed to be will executed for the purpose of being admitted to probate in Malaysia, provided that such will is in writing
or is a privileged will made under section 26.
28 Wills by citizens executed in Malaysia
A will executed within Malaysia by a citizen (whatever may be the domicile of such person at the time of making the same or at
the time of his death) shall as regards movable property and immovable property situate in Malaysia be deemed to be a will
executed for the purpose of being admitted to probate in Malaysia if it is executed in the manner required by this Act.
General note. If a Malaysian executes a will, such will may be admitted to probate as regards to movable and immovable property
situated in Malaysia as long as the will is executed in compliance with this Act.
29 Change of domicile not to invalidate will
No will shall be held to be revoked or to have become invalid in point of form nor shall the construction thereof be altered by
reason only of any subsequent change of domicile of the person making the same.
General note. A will is still valid and does not become invalid and the construction of the will is not altered by reason of fact that
the testator had changed the domicile.
30 Construction of wills
(1)
A will made in any of the States of Selangor, Perak, Negeri Sembilan or Pahang before the coming into force of this Act and a will
made in either of the States of Penang and Malacca shall, if such will would immediately before the commencement of this Act
have been construed in accordance with the Wills Enactment 1938 [FMS 5 of 1938], of the Federated Malay States or the Wills
Ordinance of the Straits Settlements [S S Cap 53] respectively, continue to be construed in accordance with such provisions,
notwithstanding any repeal of that Enactment or Ordinance.
(2)
For the purposes of subsection (1) a will re-executed, re- published or revived by a codicil shall be deemed to have been made at
the time when it was so re-executed, re-published or revived.
(3)
Save as provided by subsection (1) and subject to this Act, section 100 of the Evidence Act 1950 [Act 56] shall apply to the
construction of all wills required to be construed in accordance with the law of Malaysia as if the words "in the Settlements or
either of them" appearing in such section had been omitted.
General note. A will made pursuant to the Wills Enactment 1938 or the Wills Ordinance of the Straits Settlements in States of
Selangor, Perak, Negeri Sembilan or Pahang are still valid even if the said Enactment or Ordinance has been repealed.
Sub-s (2). Cf s 7 of the Wills Act 1837 (c 26) (Eng).
Sub-s (3). Section 100 of the Evidence Act 1950 (Act 56) (Revised 1971) (4 Evidence) states that s 91 to s 99 shall not apply to
the construction of wills except in the States of Malacca, Penang, Sabah and Sarawak where they shall be construed according to
the rules of construction which would be applicable in a Court of Justice of England. To this extent ss 3, 5 and 6 of the Civil Law
Act 1956 (Act 67) (Revised 1972) (1 Civil Law) are relevant
31 (Omitted)
LIST OF AMENDMENTS
Amending law
Act 23/1967
Act A331
Short title
Interpretation Act 1967
Wills (Amendment) Act 1976
In force from
18-05-1967
27-02-1976