1. ) MARK SAW KHAY LIANG 2. ) CHARMAINE SAW CHIN PUAY v ANDREW SAW KHAY CHI

Case Significance

Illustrates the assessment of testamentary capacity under the criteria in Banks v Goodfellow in a contested probate action between siblings, the court upholding a later will that redistributed the family company shares and admitting it to probate over an earlier will.

This High Court decision concerns a probate dispute between siblings over the validity of two wills made by their late father, and it turns on testamentary capacity and the validity of the later will. Under an earlier will, the father left the family home and his watches and jewellery to his younger daughter and his residuary estate to his wife, with a substitutionary gift dividing the residue — including 20,000 shares in the family company — equally among his four children if his wife predeceased him; the wife did die first. Some years later the father made a further will, which kept the gift of the family home to the younger daughter but gave the watches and jewellery to his two sons and, most significantly, gave the whole of his 20,000 shares in the family company to the younger son alone, making him the largest shareholder among the siblings. The elder son and the younger daughter, as plaintiffs, sued the younger son to have the later will declared invalid and the earlier will admitted to probate, while the defendant counterclaimed for the later will to be declared valid and admitted to probate. The determining question was whether the later will was the father's valid and enforceable last will, which turned on his testamentary capacity assessed against the classic criteria in Banks v Goodfellow. After a six-day trial in which the plaintiffs called treating doctors and a nurse as witnesses of fact, and the defendant called the lawyer who had prepared and witnessed both wills, the court was satisfied that the father had the requisite testamentary capacity when he made the later will. It accordingly dismissed the plaintiffs' claim and allowed the defendant's counterclaim, declaring the later will valid and revoking the earlier wills, and granting probate of it, with costs of RM100,000 to the defendant. The judgment illustrates the assessment of testamentary capacity in a contested probate action.