YALEPERUMAL A/L PERUMAL v 1. ) RAJINDRAN A/L D.KUPPUSAMY 2. ) PACHIMAL A/P PERUMAL

Case Significance

Illustrates the suspicious-circumstances doctrine in probate — where a will is executed in circumstances (such as a thumbprint execution of an English will by a testator who cannot read English) that raise a well-grounded suspicion, the court will not uphold it unless the suspicion is removed, and an uncalled material witness may attract an adverse inference under section 114(g) of the Evidence Act 1950.

This High Court decision at Johor Bahru concerns the validity of a will. The plaintiff, the youngest son of the deceased, sought a declaration that a will dated 5 September 2012 — the second and impugned will, which named the deceased's eldest daughter as sole beneficiary and her husband as sole executor — was null and void, and that all actions taken under it be set aside. The deceased, born in 1931, was a registered person with a disability who could not read or write English or Malay and communicated only in Tamil; the impugned will was prepared entirely in English and executed not by signature but by thumbprint. An earlier will, made in 1988, had been handwritten by the deceased in Tamil, signed and thumb-printed, witnessed by three independent witnesses including a district registrar, duly registered, and named all his sons as beneficiaries.

The court examined the circumstances of the impugned will for suspicious features and the requirement that the propounder prove the testator's knowledge and approval. It found the cumulative suspicious circumstances substantial: a Tamil-speaking testator who habitually signed documents suddenly executing an English-language will only by thumbprint, one that disinherited his wife and most of his children. The solicitor who prepared the will admitted that a thumbprint could be taken from a sleeping person, and a material witness who could have corroborated the execution was not called, permitting an adverse inference under section 114(g) of the Evidence Act 1950. Applying Tyrrell v Painton, the court held that where a will is prepared in circumstances raising a well-grounded suspicion that it does not express the testator's mind, it should not be pronounced upon unless that suspicion is removed — and here it had not been.

The court allowed the claim, declared the impugned will null and void, revoked the grant of probate issued under it, and awarded costs of RM50,000.00. The judgment illustrates the suspicious-circumstances doctrine in probate.