Introduction

The freedom of testation simply means that a testator is free at law to bequeath whatsoever he owns to whomsoever he desires. The bequeath is in the form of a will, which seeks to avoid potential disputes between the testator’s heirs or beneficiaries.

Ironically, the will itself can become the source of acrimonious and bitter legal disputes between the deceased’s surviving family members, especially when vast fortune is at stake. Such was the case in Kong Kin Lay & 5 Ors v. Kong Kin Siong & Ors And Other Cases [2023] MLRHU 1427, where the deceased patriarch’s last will and testament became the subject matter of protracted litigation between his children and other surviving family members.

Facts

The demise of the centenarian patriarch was quickly followed by a litany of lawsuits amongst his children and family members before the grieving period is even over. In their attempts to nullify the will, numerous allegations were made e.g., (i) the testator lacked the testamentary capacity and/or voluntariness when he executed the will; (ii) there were suspicious circumstances about the execution of the will; (iii) the formal requirements for the execution of the Will were not complied with; and (iv) the will had been tampered with and there existed an earlier Will.

The trial spanned over a period of 55 days involving the examination of 17 witnesses, with a thousand and one allegations made. Even innocuous and trivial matters, such as buying a particular brand of fried chicken for the testator’s indulgence, were raised to impute exertion of influence and/or domination over the testator.

Decision

The High Court rejected all the allegations to invalidate the will and declared the will to be valid and enforceable.

The various legal issues raised were addressed as follows:

1. Whether a forgetful testator in an advanced age who overlooked the inclusion of some of his assets in his will shows that he lacked testamentary capacity? It suffices that the testator understood the general state and composition of his assets which is to be disposed and that it was unfeasible to expect a testator to recall every asset of his, especially if he possessed many assets.
2. What is required to be done by solicitors and/or attesting witnesses of a will in order that a will be properly explained to the testator? The will is sufficiently explained to the testator if it was read over and explained to the testator before execution and the testator was able to engage with the solicitor and the attesting witness by nodding to the explanations and requesting for explanations to be repeated.
3. What type of medical evidence is required to be adduced to dispute a testator’s testamentary capacity? The testimony of a medical expert who had not attended to the patient himself is unreliable. Any allegation that the testator had suffered dementia must be substantiated by the attending medical practitioner’s confirmation or in the medical reports. Also, very slight testamentary capacity is required for the making of a will.
4. Whether the contractual capacity of a testator is relevant to determine his testamentary capacity? The testator’s contractual capacity to sign documents pertaining to a land transaction two days prior and after the execution of the will proves that he must have had testamentary capacity.
5. Whether there were suspicious circumstances for a testator, who was a traditionalist who would put male heirs in priority, to have bequeathed a larger portion of his estate to an unmarried daughter? The fact that the testator had a competent mind, had the will read over to him and knew and approved of its contents dispelled the existence of any suspicious circumstances.
6. Whether a party may rely on circumstances post the execution of the will to allege suspicious circumstances? The events subsequent to the execution of the will were irrelevant in determining whether there were suspicious circumstances surrounding the making of the will.

Postscript

Even though the testamentary wishes of the deceased were ultimately upheld, this case serves as a stark reminder that the execution of a will does not eliminate the possibility of squabbles regarding the distribution of the testator’s estate after his demise. It is therefore imperative to ensure that all requisite steps are taken in preparing a will to minimize the risk of potential disputes in the future.