Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun

[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 581

A Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean
& Anor

B FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NO 02(f )-29–04

OF 2019(P)
ZAWAWI SALLEH, IDRUS HARUN, NALLINI PATHMANATHAN,
ZALEHA YUSOF AND HASNAH HASHIM FCJJ
7 JULY 2020
C
Succession — Will — Secret trusts — Whether concept of secret trust in a will
recognised and applicable in Malaysia — Whether secret trust neither
contradictory to the Malaysian Wills Act 1959 nor against public policy
— Whether courts in Malaysia would uphold a secret trust to prevent fraud on a
D testator and apply the rules of equity to compel the trustee under a will to fulfill his
promises to the testator — Whether testamentary capacity of a testator could not be
displaced merely by showing he was suffering from a terminal illness but by showing
his mental faculties were so affected that he could not understand the meaning and
consequences of making a will
E
The appellants were the lawful children of an engineer (‘the deceased’) from his
first marriage in 1976. The first and second respondents were, respectively, the
deceased’s elder brother and nephew. During his first marriage, the deceased
had an affair with (and subsequently married) his wife’s elder sister with whom
F he had four children, two of whom were still studying when he died on
24 December 2013 while the youngest of the children was a minor at the time.
The deceased’s first marriage ended in divorce when his wife found out about
his affair with her sister. Sometime in 2013, the deceased was diagnosed with
end-stage renal cancer and underwent surgery to remove his kidney. On
G 18 December 2013, ie six days before his death, the deceased instructed his
solicitor (‘DW1’) to prepare his will leaving all his assets to the respondents.
Secretly, he had instructed the respondents to hold his assets on trust for the
benefit of his second wife and their children. The deceased’s execution of the
will was witnessed by DW1 and his secretary, DW2. After the respondents had
H obtained grant of probate of the will, the appellants applied to the High Court
to set it aside and declare the will void on the ground the deceased did not have
the testamentary capacity to make it and also because the respondents had
exercised undue influence over the deceased to favour them exclusively under
the will. The respondents refuted those allegations saying that the deceased was
I not only mentally alert and lucid when he made the will but that they were not
the true beneficiaries but merely held all of the deceased’s assets under a secret
trust solely for the benefit of the deceased’s second wife and her children. The
High Court allowed the appellants’ claim, revoked the grant of probate,
declared the will invalid and also ordered the respondents to pay the appellants
582 Malayan Law Journal [2020] 4 MLJ

RM25,000 in exemplary damages for acting in contumelious disregard of the A

appellants’ rights. Inter alia, the High Court found that: (a) the deceased did
not have testamentary capacity to make the will because the urologist (‘PW1’)
who had treated him had stated in a letter that the deceased was mentally and
physically troubled in coping with his disease; (b) no medical evidence was
produced at the trial to establish the deceased’s mental capacity on the day he B
executed the will; (c) the first appellant had testified that when he met with the
deceased on the day he executed the will, he found that the deceased could not
talk or recognise him; (d) the respondents had not dispelled the suspicious
circumstances surrounding the making of the will including the charge that
they had exercised undue influence over the deceased; (e) the ‘secret trust’ C
defence was an afterthought as the will made no mention of it. The Court of
Appeal (‘COA’) allowed the respondents’ appeal and set aside the trial court’s
decision and held that: (i) the deceased did not lack testamentary capacity;
(ii) the evidence of PW1 (which was recorded before a different judge) never
said that the deceased lacked testamentary capacity; (iii) there was no reason to D
disbelieve the testimonies of DW1 and DW2 that all formalities for making the
deceased’s will a valid one had been complied with; (iv) the respondents had
dispelled any suspicious circumstances surrounding the making of the will;
(v) the appellants failed to demolish the defence of secret trust. The appellants
were granted leave to appeal to the Federal Court against the COA’s decision, E
inter alia, on the question whether the concept of secret trusts applied in
Malaysia or whether that concept conflicted with the Wills Act 1959 and/or
was against public policy.

Held, dismissing the appeal and affirming the COA’s decision: F

(1) By virtue of s 3(1) of the Civil Law Act 1956, the courts in Malaysia have
applied the common law of England and the rules of equity as
administered in England on 7 April 1956. It followed that the concept of
secret trusts, which was part of the law of trusts and was governed by the G
rules of equity and the common law of England, applied in Malaysia
unless there was an explicit abrogation, variation, restriction or
modification of it by written law. The Malaysian Wills Act 1959 or other
Acts of Parliament did not explicitly abrogate the application of secret
trusts. In fact, its application was endorsed in the written law. Reading H
s 30 of the Wills Act 1959 together with s 100 of the Evidence Act 1950,
the applicable law for the interpretation of a will made in Penang, as in
the instant appeal, and which purported to create a secret trust, was
English law and the rules of equity (see paras 35–37 & 39–41).
(2) There was no cogent reason to abrogate secret trusts in Malaysia. The I
proviso to s 3(1)(a) of the Civil Law Act 1956 did not exclude the
applicability of the law on trusts and secret trusts. The court would
uphold secret trusts to prevent fraud on a testator and apply the rules of
equity to compel the trustee under a will to fulfill his promises to the
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 583

A testator. The evidence in the instant case revealed that the deceased had
intended to provide for his second wife’s children as they were the only
next-of-kin who depended on him for financial support. Some of the
children were still studying at the material time. The deceased trusted the
first respondent (his brother) and the second respondent (his nephew) to
B manage the estate wisely to take care of his second wife’s children’s needs.
The appellants, on the other hand, were working adults and had not been
in contact with the deceased for more than seven years and were not on
good terms with him. Both the respondents gave evidence under oath
that the estate would not be used for their benefit but for the benefit of
C
the deceased’s second wife and their children. In the circumstances, it was
in the interests of justice that the secret trust and the wishes of the
deceased were upheld (see paras 42 & 44–47).
(3) It was a well-settled principle that to displace prima facie testamentary
D capacity and due execution of a will, mere proof of serious illness was
insufficient. There had to be clear evidence that the illness of the testator
so affected his mental faculties as to make him unequal to the task of
disposing of his property. There had to be clear evidence to depict an
insane delusion existing in the testator’s mind at the time he made the
E will. It was sufficient if, at the time he executed the will, the testator had
sufficient mental ability to understand that he was making a will, the
effect of making the will and the general nature and extent of his property
(see paras 64 & 76).
F (4) The respondents had adduced sufficient evidence at the trial to establish
that the deceased had the testamentary capacity to make the will. The
trial judge failed to appreciate that: (a) the fact that the deceased was
suffering from terminal cancer did not automatically deprive him of
testamentary capacity when he executed the will on 18 December 2013;
G it was sufficient if he had a sound mind on that day; (b) the evidence of
DW1 and DW2, who were both independent and disinterested
witnesses, showed that the deceased had a clear mind both when he
instructed DW1 in the morning, and when he executed the will in the
afternoon, of 18 December 2013; (c) all the five witnesses who saw the
H deceased that day affirmatively stated that he was of sound mind, lucid,
conscious, mentally alert and able to communicate; (d) PW1’s testimony
did not establish that the deceased did not have testamentary capacity.
PW1 did not see the deceased on the day he executed the will but when
he last saw the deceased five days earlier, he found the deceased was lucid,
I conscious and of sound mind. PW1’s testimony was consistent with the
evidence given by the respondents’ expert witness, Dr Azlan; and (e) there
was no independent medical evidence before the trial court to show that
the deceased lacked testamentary capacity to execute the will (see
para 83).
584 Malayan Law Journal [2020] 4 MLJ

(5) Any inconsistency or contradiction between the doctrine of secret trusts A

and the Malaysian Wills Act 1959 was a non-starter. In Malaysia, the
testamentary freedom of a testator was recognised long before the Wills
Act 1959 was enacted. The overriding purpose behind secret trusts was to
enable property to be left in a will, without explicitly naming who the
property was being left to, by bequeathing it to a person who had B
previously promised to hold that property as trustee for the intended
recipient. As wills were public documents that were open to scrutiny, the
concealment of identity that a secret trust provided was vital for those
who desired a degree of privacy in the final disposal of their estate.
C
Another justification for the enforcement of secret trusts was that it was
made outside and independently of the will and arose from the
independent obligation accepted by the trustee. As a creature of common
law, secret trusts operated outside the formalities of the Wills Act 1959 as
a form of inter vivos express trust in which the testator and trustee
D
mutually agreed to form a trust relationship for the lifetime of the
testator. Secret trusts were enforced to promote the main policy principle
behind the Wills Act 1959, namely, to protect the testamentary freedom
of testators (see paras 87, 94 & 102–104).
(6) There was no merit in the appellants’ submissions to justify interference E
with the COA’s judgment. In giving effect to the secret trust in the instant
case, the COA had taken into consideration various factors including:
(a) respect for the principle of testamentary freedom and the testator’s last
wish; (b) that a secret trust was an established principle of trusts law; and
(c) that the interests of society required that a testator should make F
adequate provision for his surviving family (see paras 105–106).
[Bahasa Malaysia summary
Perayu-perayu adalah anak-anak sah seorang jurutera (‘si mati’) dari
perkahwinan pertamanya pada tahun 1976. Responden-responden pertama G
dan kedua adalah, masing-masingnya, abang dan anak saudara lelaki si mati.
Sepanjang perkahwinan pertamanya, si mati mempunyai hubungan dengan
(dan kemudian berkahwin) kakak isterinya yang mana dia mempunyai empat
orang anak, dua yang masih belajar apabila dia meninggal dunia pada
24 Disember 2013 manakala anak bongsu masih bawah umur pada masa itu. H
Perkahwinan pertama si mati berakhir dengan perceraian apabila isterinya
mengetahui tentang hubungannya dengan kakaknya. Sekitar 2013, si mati
didiagnosis dengan barah buah pinggang peringkat akhir dan menjalani
pembedahan untuk membuang buah pinggangnya. Pada 18 Disember 2013,
iaitu enam hari sebelum dia meninggal dunia, si mati telah mengarahkan I
peguamcaranya (‘DW1’) untuk menyediakan wasiatnya meninggalkan semua
asetnya kepada responden-responden. Secara rahsia, dia telah mengarahkan
responden-responden memegang asetnya atas amanah untuk manfaat isteri
keduanya dan anak-anak mereka. Pelaksanaan wasiat si mati telah disaksikan
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 585

A oleh DW1 dan setiausahanya, DW2. Selepas responden-responden

memperoleh pemberian probet untuk wasiat itu, perayu-perayu telah
memohon kepada Mahkamah Tinggi untuk mengetepikannya dan
mengisytiharkan wasiat itu tidak sah atas alasan si mati tidak mempunyai
keupayaan memberi wasiat untuk membuatnya dan juga kerana
B responden-responden mempunyai pengaruh yang tidak wajar terhadap si mati
untuk memihak kepada mereka secara eksklusif di bawah wasiat itu.
Responden-responden membantah tuduhan tersebut dengan mengatakan
bahawa si mati bukan sahaja waras dan berfikiran jelas dari segi mental ketika
membuat wasiat itu tetapi bahawa mereka bukan benefisiari sebenar dan hanya
C
memegang semua aset si mati di bawah amanah rahsia semata-mata untuk
manfaat isteri kedua si mati dan anak-anaknya. Anak-anaknya membenarkan
tuntutan perayu-perayu, membatalkan pemberian probet, mengisytiharkan
wasiat itu tidak sah dan juga memerintahkan responden-responden membayar
D perayu-perayu RM25,000 sebagai ganti rugi teladan kerana bertindak dengan
tidak menghiraukan hak perayu. Antara lain, Mahkamah Tinggi mendapati
bahawa: (a) si mati tidak mempunyai keupayaan untuk membuat wasiat
kerana ahli urologi (‘PW1’) yang telah merawatnya telah menyatakan dalam
suratnya bahawa si mati mengalami masalah mental dan fizikal ketika
E menghadapi penyakitnya; (b) tiada keterangan perubatan yang dikemukakan
semasa perbicaraan untuk membuktikan keupayaan mental si mati pada hari
dia melaksanakan wasiat itu; (c) perayu pertama telah memberi keterangan
bahawa ketika dia bertemu dengan si mati pada hari dia melaksanakan wasiat
itu, dia mendapati bahawa si mati tidak dapat bercakap atau mengenalinya;
F (d) responden-responden tidak menafikan keadaan yang mencurigakan di
sekitar pembuatan wasiat tersebut termasuk tuduhan bahawa mereka telah
menggunakan pengaruh yang tidak wajar terhadap si mati; (e) pembelaan
‘secret trust’ adalah suatu yang telah difikirkan selepas kerana wasiat itu tidak
menyebutkannya. Mahkamah Rayuan (‘MR’) telah membenarkan rayuan
G responden-responden dan mengetepikan keputusan mahkamah perbicaraan
dan memutuskan bahawa: (i) si mati tidak mempunyai keupayaan membuat
wasiat; (ii) keterangan PW1 (yang direkodkan di hadapan hakim lain) tidak
pernah mengatakan bahawa si mati tidak mempunyai keupayaan membuat
wasiat; (iii) tiada sebab untuk tidak mempercayai keterangan DW1 dan DW2
H bahawa semua formaliti untuk membuat wasiat si mati secara sah telah
dipatuhi; (iv) responden-responden telah melenyapkan apa-apa keadaan yang
mencurigakan sekitar pembuatan wasiat itu; (v) perayu-perayu telah gagal
melemahkan pembelaan amanah rahsia itu. Perayu diberi kebenaran untuk
merayu kepada Mahkamah Persekutuan terhadap keputusan MR, antara lain,
I mengenai persoalan sama ada konsep amanah rahsia adalah terpakai di
Malaysia atau sama ada konsep itu bertentangan dengan Akta Wasiat 1959
dan/atau bertentangan dengan dasar awam.

Diputuskan, menolak rayuan dan mengesahkan keputusan MR:

586 Malayan Law Journal [2020] 4 MLJ

(1) Menurut s 3(1) Akta Undang-Undang Sivil 1956, mahkamah di A

Malaysia telah mengguna pakai undang-undang am England dan rukun
ekuiti sebagaimana ditadbir di England pada 7 April 1956. Ia diikuti
bahawa konsep amanah rahsia, yang merupakan sebahagian
undang-undang amanah dan dikawal oleh rukun ekuiti dan
undang-undang am di England, adalah terpakai di Malaysia kecuali jika B
terdapat pembatalan, perubahan, pembatasan atau pengubahsuaiannya
secara eksplisit oleh undang-undang bertulis. Akta Wasiat Malaysia 1959
atau Akta Parlimen yang lain tidak secara tegas membatalkan pemakaian
amanah rahsia. Sebenarnya, penerapannya disahkan dalam
undang-undang bertulis. Dengan membaca s 30 Akta Wasiat 1959 C
bersama s 100 Akta Keterangan 1950, undang-undang yang boleh
terpakai untuk penafsiran wasiat yang dibuat di Pulau Pinang, seperti
dalam rayuan ini, dan yang bermaksud membentuk amanah rahsia,
adalah undang-undang Inggeris dan rukun ekuiti (lihat perenggan
35–37 & 39–41). D
(2) Tiada alasan meyakinkan untuk membatalkan amanah rahsia di
Malaysia. Proviso kepada s 3(1)(a) Akta Undang-Undang Sivil 1956
tidak mengecualikan pemakaian undang-undang berhubung amanah
dan amanah rahsia. Mahkamah akan menegakkan amanah rahsia untuk E
mencegah penipuan terhadap pewasiat dan mengguna pakai rukun
ekuiti untuk mendesak pemegang amanah di bawah wasiat untuk
menunaikan janjinya kepada pewasiat. Keterangan dalam kes ini
menunjukkan bahawa si mati berhasrat untuk membiayai anak-anak
isteri keduanya kerana mereka adalah satu-satunya saudara terdekat yang F
bergantung kepadanya untuk mendapatkan sokongan kewangan.
Beberapa orang anak masih belajar pada waktu material. Si mati
mempercayai responden pertama (abangnya) dan responden kedua
(anak saudara lelakinya) untuk menguruskan harta pusaka dengan bijak
demi menjaga keperluan anak isteri keduanya. Perayu-perayu, G
sebaliknya, adalah orang dewasa yang bekerja dan tidak berhubungan
dengan si mati selama lebih dari tujuh tahun dan tidak mempunyai
hubungan baik dengannya. Kedua-dua responden memberikan
keterangan atas sumpah bahawa harta pusaka itu tidak akan digunakan
untuk kepentingan mereka tetapi untuk kepentingan isteri kedua si mati H
dan anak-anak mereka. Dalam keadaan itu, demi kepentingan keadilan
bahawa amanah rahsia dan hajat si mati dilaksanakan (lihat perenggan 42
& 44–47).
(3) Ia adalah satu prinsip yang dijelaskan bahawa untuk mengambil tempat
secara prima facie keupayaan membuat wasiat dan pelaksanaan I
sewajarnya wasiat, bukti semata-mata penyakit yang serius tidak
mencukupi. Perlu ada keterangan yang jelas bahawa penyakit pewasiat
itu mempengaruhi keupayaan mentalnya sehingga membuatnya tidak
berupaya melaksanakan tugas melupuskan hartanya. Perlu ada
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 587

A keterangan yang jelas untuk menggambarkan khayalan tidak waras yang

ada di dalam pemikiran pewasiat ketika dia membuat wasiat. Cukuplah
jika, pada saat dia melaksanakan wasiat, pewasiat memiliki keupayaan
mental yang cukup untuk memahami bahawa dia membuat wasiat,
kesan membuat wasiat dan sifat umum dan jumlah hartanya (lihat
B perenggan 64 & 76).
(4) Responden-responden telah mengemukakan keterangan mencukupi
semasa perbicaraan untuk membuktikan bahawa si mati mempunyai
keupayaan membuat wasiat. Hakim perbicaraan gagal menyedari
C bahawa: (a) hakikat bahawa si mati menderita barah terminal tidak secara
automatik melucutkan keupayaannya semasa dia melaksanakan wasiat
pada 18 Disember 2013; memadai jika dia mempunyai akal sihat pada
hari itu; (b) keterangan DW1 dan DW2, yang kedua-duanya saksi bebas
dan tanpa kepentingan, menunjukkan bahawa si mati mempunyai akal
D yang jelas ketika dia mengarahkan DW1 pada waktu pagi itu, dan ketika
dia melaksanakan wasiat tersebut pada sebelah petang, 18 Disember
2013; (c) kelima-lima saksi yang melihat si mati pada hari itu dengan
tegas menyatakan bahawa dia waras, berfikiran jelas, sedar, peka dari segi
mental dan dapat berkomunikasi; (d) keterangan PW1 tidak
E membuktikan bahawa si mati tidak mempunyai keupayaan membuat
wasiat. PW1 tidak melihat si mati pada hari dia melaksanakan wasiat itu
tetapi semasa dia melihat si mati kali terakhir lima hari sebelumnya, dia
mendapati si mati itu berfikiran jelas, peka dan waras. Keterangan PW1
selaras dengan keterangan yang diberikan oleh saksi pakar responden, Dr
F Azlan; dan (e) tiada bukti perubatan bebas di hadapan mahkamah
perbicaraan untuk menunjukkan bahawa si mati tidak mempunyai
keupayaan membuat wasiat untuk melaksanakan wasiat tersebut (lihat
perenggan 83).
(5) Apa-apa yang tidak konsisten atau percanggahan antara doktrin amanah
G rahsia dan Akta Wasiat Malaysia 1959 adalan bukan pemula. Di
Malaysia, kebebasan berwasiat seorang pewasiat telah diiktiraf sebelum
Akta Wasiat 1959 digubal. Tujuan utama di sebalik amanah rahsia adalah
untuk membolehkan harta benda ditinggalkan dalam wasiat, tanpa
menyebut secara jelas kepada siapa harta itu ditinggalkan, dengan
H menyerahkannya kepada orang yang sebelumnya berjanji untuk
memegang harta itu sebagai pemegang amanah bagi penerima yang
dimaksudkan. Oleh kerana wasiat adalah dokumen awam yang terbuka
untuk diteliti, penyembunyian identiti yang diberikan oleh rahsia
amanah sangat penting bagi mereka yang menginginkan tahap privasi
I dalam pelupusan akhir harta tanah mereka. Justifikasi lain untuk
pelaksanaan amanah rahsia adalah bahawa ia dibuat di luar dan bebas
dari wasiat dan timbul dari kewajiban bebas yang diterima oleh
pemegang amanah. Sebagai buatan undang-undang am, amanah rahsia
yang dikendalikan di luar formaliti Akta Wasiat 1959 sebagai suatu
588 Malayan Law Journal [2020] 4 MLJ

bentuk inter vivos amanah yang nyata di mana pewasiat dan pemegang A
amanah saling bersetuju untuk membentuk hubungan kepercayaan
sepanjang hayat pewasiat. Amanah rahsia dikuatkuasakan untuk
menggalakkan prinsip dasar utama di sebalik Akta Wasiat 1959, iaitu
untuk melindungi kebebasan pewasiat (lihat perenggan 87, 94 &
102–104). B

(6) Tiada merit dalam hujah perayu-perayu untuk mewajarkan campur

tangan dengan penghakiman MR. Dalam melaksanakan amanah rahsia
dalam kes ini, MR telah mengambil kira pelbagai faktor termasuk:
(a) menghormati prinsip kebebasan wasiat dan hasrat terakhir pewasiat; C
(b) bahawa amanah rahsia adalah satu prinsip mantap undang-undang
amanah; dan (c) bahawa kepentingan masyarakat menkehendaki agar
seorang pewasiat patut menyediakan peruntukan yang mencukupi untuk
keluarganya yang masih hidup (lihat perenggan 105–106).]
D
Cases referred to
Banks v Goodfellow (1870) LR 5 QB 549, QBD (refd)
Blackwell v Blackwell [1929] AC 318, HL (refd)
Carmel Mary Soosai v Josephine Lourdsamy Ratnavathy R. Soosai & Ors [1987]
CLJ Rep 498, HC (refd) E
Choo Mooi Kooi @ Choo Soo Yin v Choo Choon Jin @ Jimmy Choo and other
suits [2012] 2 MLJ 691, HC (refd)
Estate of Luce, In re No 02–17–00097-CV (Tex App Nov 15, 2018) (refd)
Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ
F
1; [2004] 4 CLJ 309, FC (refd)
Hassan bin Kadir & Ors v Mohamed Moidu bin Mohamed & Anor [2018] supp
MLJ 266, FC (refd)
In the Matter of the Estate of Eva Burns, deceased; Burns and others v
Burns [2016] EWCA Civ 37, CA (refd) G
Key and another v Key and others [2010] EWHC 408 (Ch), Ch D (refd)
Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998] 3 MLJ 457, HC
(refd)
Kishan Singh v Nichhattar Singh AIR 1983 P H 373, HC (refd)
Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, H
CA (refd)
Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2
MLJ 389; [2006] 2 CLJ 1, FC (refd)
Nicholson v Knaggs [2009] VSC 64, SC (refd)
Ong Eng Hock & Anor v Ong Cheng Guan & Anor [2018] 5 MLJ 701; [2018] I
7 CLJ 154, FC (refd)
Ottaway and another v Norman [1972] 2 WLR 50, Ch D (refd)
Simpson, Re, Schaniel v Simpson (1977) 121 Sol Jo 224 (refd)
Snowden, In re [1979] Ch 528, Ch D (refd)
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 589

A Tan Cheu Kee v Lim Siew Hwa [2016] MLJU 1599; [2016] 1 LNS 1684, HC
(refd)
Tan Soh Sim, deceased; Chan Lam Keong and 4 others v Tan Saw Keow and 3
others, In re [1951] 1 MLJ 21; [1951] 1 LNS 77, CA (refd)
Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 MLJ 97; [2002] 4 CLJ 90,
B CA (refd)
Tony Pua Kiam Wee v Government of Malaysia and another appeal [2019] 12
MLJ 1; [2020] 1 CLJ 337, FC (refd)
Tsang Tat Hung & Anor v Tsang Tat Wing [2017] HKCU 1165 (refd)
Udham Singh v Indar Kaur [1971] 2 MLJ 263, FC (refd)
C
Young, Re [1951] Ch 344, Ch D (refd)

Legislation referred to
Civil Law Act 1956 s 3(1), (1)(a)
D Evidence Act 1950 s 100
Federal Constitution art 150
Interpretation Acts 1948 and 1967 s 3
Wills Act 1837 [UK]
Wills Act 1959 s 30
E
Appeal from: Civil Appeal No P-02(NCVC)(W)-2300–11 of 2017 (Court of
Appeal, Putrajaya)
John Khoo (Jason Ong and Navaneetha Krishnan with him) (Ong & Assoc) for the
F appellants.
Justin Voon Thiam Yu (Lee Chooi Peng and Lin Pei Sin with him) (Justin Voon
Chooi & Wing) for the respondents.

Zawawi Salleh FCJ (delivering judgment of the court):

G
INTRODUCTION

[1] This is an appeal from the judgment of the Court of Appeal dated
13 October 2018 in terms of which it allowed the appeal by the
H appellants/defendants against the judgment of the High Court at Pulau Pinang
dated 24 October 2017. The High Court had allowed the
respondents’/plaintiffs’ claim, revoked the grant of probate issued to the
appellants/defendants and, inter alia, declared that the will dated 18 December
2013 alleged to be the last will and testament of one Chin Joo Ngan
I (‘deceased’) as invalid and the deceased had died intestate.

[2] The appeal was by leave granted by this court on 18 March 2019 on the
following questions of law:
First leave question:
590 Malayan Law Journal [2020] 4 MLJ

(a) Whether the concept of secret trust is applicable to Malaysia as there A

is no decision regarding the applicability of secret trust?
Second leave question:
(b) Whether secret trust is applicable in a case involving the issue of
testamentary capacity of a testator? B
Third leave question:
(c) Whether secret trust is contradictory to the Malaysian Wills Act
1959 and/or is against public policy as it can be abused?
C
[3] We heard the appeal on 24 February 2020 and at the conclusion of
arguments of the parties, we dismissed the plaintiffs’/appellants’ appeal with
costs. We now give the detailed grounds for our decision.

[4] For convenience, we will refer to the parties by their designations at the D
High Court: the appellants as the plaintiffs and the respondents as the
defendants.

FACTUAL BACKGROUND AND ANTECEDENTS PROCEEDINGS

E
[5] The first plaintiff and the second plaintiff are the lawful children of the
deceased.

[6] The first defendant is the elder brother of the deceased and the second
F
defendant is the son of the first defendant and nephew of the deceased. Both
the defendants reside in Australia.

[7] The deceased by profession was an engineer and had three wives,
namely: G
(a) Chan Cheng Lian (first wife);
(b) Chan Cheng Geok (second wife); and
(c) Yeoh Bee Leng @ Katherine (third wife).
H
[8] Only the marriage between the deceased and the first wife was
registered. The deceased married the first wife on 14 July 1976. The remaining
two marriages were not registered.
I
[9] The plaintiffs are the deceased’s children from his first wife marriage.
The deceased had four children with the second wife, of whom two were still
studying when the deceased died, and the youngest was still a minor at the
time. The deceased and the third wife had no children.
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A [10] It is important to note that the second wife is the first wife’s elder sister.
The second wife had a marital affair with the deceased while the first marriage
subsisted.

[11] Sometime in 1985, the first wife found out about her husband’s affair
B with her sister. Unable to accept the mistrust and betrayal, the first wife
eventually filed for divorce and was granted a decree nisi on 8 August 1991.
The decree nisi, however, has not been made absolute.

[12] In the meantime, the deceased married his third wife who was also his
C business partner. His third wife was not called as a witness during the trial.
Nevertheless, their wedding photographs were tendered to show that they went
through a Chinese customary marriage ceremony.

[13] The deceased was diagnosed with fourth stage renal cancer/terminal
D
cancer in 2013. In September 2013, the deceased underwent surgery to remove
his kidney due to a growth and tumor.

[14] The family conflicts arise from the will made by the deceased dated
E 18 December 2013. The will was prepared by an advocate and solicitor named
Peter Huang (DW1) who also witnessed the will together with his secretary,
Lau Ean Nah (DW2), on 18 December 2013. Under this will, the deceased
gave all his assets and properties to the defendants.

F [15] The deceased died six days after the will was made, that is to say, on
24 December 2013. Coincidentally, the date of birth of the deceased is also on
24 December.

[16] The defendants later obtained the grant of probate on 12 February

G 2014 at the Kuala Lumpur High Court.

[17] Consequently, the plaintiffs filed a civil suit at the Pulau Pinang High
Court and seeking, inter alia, for the following:
H (a) an order that the grant of probate issued by the Kuala Lumpur High
Court is declared null and void in law and is revoked and cancelled; and
(b) a declaration that the will dated 18 December 2013 alleged to be the last
will and testament of the deceased is void under the law.
I PROCEEDINGS BEFORE THE HIGH COURT

[18] At the High Court, the plaintiffs challenged the validity of the will on
592 Malayan Law Journal [2020] 4 MLJ

two main grounds: A

(a) the deceased had no testamentary capacity to make the will as he was
suffering from terminal cancer; and
(b) the defendants had cheated and unduly influenced the deceased.
B
[19] The suit was resisted by the defendants. They categorically disputed the
allegations and averred that the deceased was mentally alert, lucid, and capable
of making the will. The defendants also contended that they are not the true
beneficiaries of the will as they are only trustees for the benefits of the deceased’s
second wife and her children. In the upshot, the defendants claim that a secret C
trust was created under the will.

[20] As we have alluded to earlier, on 24 October 2017, the learned High

Court judge allowed the plaintiffs’ claim, revoked the grant of probate issued to
the defendants and, inter alia, declared the will dated 18 December 2013 to be D
invalid and that the deceased had died intestate.

[21] The learned High Court judge had considered all the central issues
presented in the case. We can summarise the learned High Court’s reasoning E
and conclusions as follows:
(a) the deceased did not have the testamentary capacity to make the will
dated 18 December 2013 based on the following facts:
(i) Dr Git Kah Ann (PW1), the urologist who treated the deceased had F
stated in his letter dated 13 December 2013 that at the material
time the deceased was still having trouble to cope with the disease,
mentally and physically;
(ii) there was no certification by any medical practitioner as to the
mental capacity of the deceased on 18 December 2013. Reliance G
was placed on the case of Simpson, Re, Schaniel v Simpson (1977)
121 Sol Jo 224 where it was held that the making of a will by an old
and infirm testator ought to be witnessed and approved by a
medical practitioner who satisfies himself as to the capacity and
understanding of the testator and makes a record of his H
examination and findings;
(iii) Peter Huang (DW1), the lawyer who prepared the will and also
witnessed the will together with his secretary on 18 December 2013
did not know anything about the deceased’s medical background
I
and mental capacity; and
(iv) the oral testimony of the first plaintiff of his meeting with the
deceased on 18 December 2013 reveals that his father cannot talk
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 593

A and unable to recognise him.

(b) there were suspicious circumstances surrounding the making of the will
and that the defendants had manipulated, unduly influenced and
cheated the deceased to make the will to give all the assets to the
B
defendants based on the following facts:
(i) suspicious circumstances were not denied by the defendants;
(ii) established facts depicts clearly that it was the first defendant who
wanted to make the will. There is not much of a communication
between the DW1, the lawyer who prepared the will and the
C
deceased. It is only a formality that the deceased had to sign the will
and all parties had to be present before the lawyer;
(iii) there is a special relationship between the first defendant and the
deceased; and
D
(iv) the deceased was under the control of the defendants from
17 December 2013 to 21 December 2013.
(c) secret trust defence was not established on the grounds that:
(i) the whole idea of secret trust is an afterthought because the secret
E
trust defence was only raised for the first time when the defendants
amended their defence one year after the defence was filed;
(ii) DW1 has not done a secret trust and does know about secret trust;
(iii) the will itself did not mention a secret trust; and
F
(iv) if the purpose of the secret trust is to give the deceased’s properties
to the deceased’s second wife and her children, it would have been
much easier for the deceased to say so expressly in the will.

G [22] The learned judge also granted exemplary damages of RM25,000 to the
plaintiffs because Her Ladyship was of the view that the defendants had acted
in contumelious disregard of the plaintiffs’ rights when the defendants
acquired all the assets and properties of the deceased to make a profit for
themselves and thereafter to dissipate and transfer the proceeds of the sales to
H Australia.

[23] Being dissatisfied with the decision of the High Court, the defendants
appealed to the Court of Appeal.
I PROCEEDINGS BEFORE COURT OF APPEAL

[24] The Court of Appeal essentially allowed the appeal by the defendants
594 Malayan Law Journal [2020] 4 MLJ

and set aside the order of the High Court on the following grounds: A
(a) testamentary capacity:
(i) it is trite that a testator could bequeath his estate to any person. The
only instance the probate could be set aside is if the plaintiffs had
established that the testator did not have testamentary capacity to B
execute the said will; and
(ii) the learned judge had misdirected herself on the issue of
testamentary capacity when Her Ladyship combined the issue of
secret trust with that of testamentary capacity. The approach taken
C
by the learned judge was wrong in law. Testamentary capacity was
related to medical evidence or related to credible evidence and had
nothing to do with the doctrine of secret trust.
(b) appreciation of the evidence
D
(i) the learned judge did not give much credence to the evidence of the
defendants in the judgment. The learned judge had no benefit of
hearing the evidence or seeing the demeanor of urologist who
treated the deceased ie Dr Git Kah Ann (PW1) because PW1 gave
evidence before YA Dato’ Azmi bin Ariffin on 23 March 2017 who
E
heard the case in part before he was transferred to another court.
PW1’s testimony was crucial evidence relating to testamentary
capacity;
(ii) PW1’s witness statement does not in a definite form assert that the
deceased lacked testamentary capacity; and F
(iii) the evidence of DW1, the lawyer who prepared the will was not
discredited neither was the evidence of his secretary (DW2) who
also witnessed the will. There is no cogent reason why their
testimony should not be disbelieved or at least for the limited
G
purpose to say the formalities of a valid will had been duly satisfied.
(c) defence of the secret trust
(i) the law on secret trust was developed to assist the testator’s
purported ‘sins’ for just and equitable reason to benefit his ‘genes or
H
acquaintance’ whether lawful or otherwise to provide some form of
security to his beloved ones;
(ii) the law on secret trust had developed in a manner to close its eyes on
public policy or breach of the rule of law related to monogamous or
polygamous marriage inclusive of polyandry or relationship of I
cohabitee. The court did not strike out the secret trust arguments
based on illegality or public policy. There was nothing cynical or
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 595

A wrong even if it was meant for private trust or charitable trust;

(iii) all the requirements for the formality of a valid will have been
satisfied; and
(iv) the plaintiffs were not able to demolish the defence of secret trust
B and there were good grounds to dispel any mala fide on the part of
the defendants. The estate of the deceased will be used for the
benefit of the deceased’s second wife and their children and not for
their own benefit.

C OUR DECISION

[25] Before turning to the leave questions, perhaps it would be useful to

discuss briefly the law on secret trusts.

D [26] Secret trusts enable a testator to direct the disposition of his or her
property upon his or her death without specifying the actual beneficiary in the
will whereby the property is bequeathed to a ‘legatee’ who holds it as a trustee
for the secret beneficiary. The motivating factor behind this arrangement for
anonymity varied. Watt writes that the secret trust may initially have been
E created in response to the worries of men wishing to make provisions for a
mistress and illegitimate children (see Watt G, Trusts and Equity (4th Ed,
Oxford University Press, 2010) at p 180).

[27] Snell’s Equity (33rd Ed, Sweet & Maxwell, 2015), para 24–023 at p 660
F offers the following definition of secret trusts:
A secret trust gives effect to the express intentions of a testator which are not
contained in a written document duly executed as a will. A will is a public
document. The advantage of a secret trust is that the testator may use a will to
implement his wish to establish a trust upon his death without disclosing the
G intended beneficiary or the terms under which he holds.
Secret trusts are a device by which the express intention of a person to make a
testamentary gift may be enforced despite the testator’s failure to comply with the
formalities for the execution of a will or testamentary disposition under the Wills
Act 1837. They demonstrate the rationale of preventing the fraudulent reliance on
H the statutory formalities as a justification for denying the enforceability of the secret
trustee’s expressly undertaken obligations …

[28] There are two types of secret trusts. A full secret trust is an obligation
which is fully concealed on the face of the will. The obligation is
I
communicated to the legatee during the lifetime of the testator and the will
transfers the property to the legatee without the mention of the existence of a
596 Malayan Law Journal [2020] 4 MLJ

trust, ie the existence and the terms of the trust are fully concealed on the face A
of the instrument creating the trust, namely the will, for example a disposition
by will ‘to A absolutely’. Whereas a half secret trust is intended when the will
indicates or acknowledges the existence of the trust but the terms are concealed
from testators will. The trustee will take the property as communicated on the
terms effected inter vivos, for example a deposition by will ‘to A on trust for the B
purpose communicated to him’.

[29] By way of simple explanation, both types of secret trust essentially

involve property being left in the will without actually naming person to whom
the property is being left to. The property is held on trust by someone who C
made a promise to the testator to hold the property on trust for the eventual
recipient.

ESTABLISHING THE EXISTENCE OF SECRET TRUST

D
[30] In Ottaway and another v Norman [1972] 2 WLR 50, Brightman J sets
out the requisite elements necessary to prove the existence of a fully secret trust
which covers the components of intention, communication and acceptance as
follows:
E
It will be convenient to call the person on whom such a trust is imposed the ‘primary
donee’ and the beneficiary under that trust the ‘secondary donee’. The essential
elements which must be proved to exist are: (i) the intention of the testator to
subject the primary donee to an obligation in favour of the secondary donee;
(ii) communication of that intention to the primary donee; and (iii) the acceptance
of that obligation by the primary donee either expressly or by acquiescence. It is F
immaterial whether these elements precede or succeed the will of the donor. I am
informed that there is no recent reported case where the obligation imposed on the
primary donee is an obligation to make a will in favour of the secondary donee as
distinct from some form of inter vivos transfer. But it does not seem to me that that
can really be a distinction which can validly be drawn on behalf of the defendant in G
the present case. The basis of the doctrine of a secret trust is the obligation imposed
on the conscience of the primary donee and it does not seem to me that there is any
materiality in the machinery by which the donor intends that that obligation shall
be carried out.

H
[31] If it cannot be shown the testator had the intention to create a secret
trust, or withdrew his/her intention to create trust before his/her death, the
court will not uphold the secret trust. Where a secret trust fails, the trustee will
be entitled to the trust property absolutely with no obligation to the
beneficiary. I

[32] The standard of proof for proving a secret trust or half secret trust is the
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 597

A ordinary civil standard of proof (ie balance of probabilities). In In re

Snowden [1979] Ch 528, Sir Robert Megarry VC observed:
I therefore hold that in order to establish a secret trust where no question of fraud
arises, the standard of proof is the ordinary civil standard of proof that is required to
establish an ordinary trust. I am conscious that this does not accord with what was
B said in Ottaway v Norman [1971] 3 All ER 1325 at 1333; [1972] Ch 698 at 712,
but I think the point was taken somewhat shortly there, and the judge does not seem
to have had the advantage of having had cited to him the authorities that I have
considered. For those reasons I have overcome my hesitation in differing from him.

C [33] We now turn to the first leave question. The principal argument which
learned counsel for the plaintiffs advances on this leave question is that there is
no recognition of the doctrine of secret trust, whether in the Civil Law Act
1956, or other Acts of Parliament. Neither are there any decisions by the
D Federal Court endorsing and propounding the concept of secret trust in
Malaysia. With respect, for the reasons set forth below, we disagree with the
submission.

[34] The starting point to this question is the definition of the word ‘law’.
E Article 160 of the Federal Constitution defines ‘law’ as to include ‘… written
law, the common law in so far as it is in operation in the Federation or any part
thereof ’. Section 3 of the Interpretation Acts 1948 and 1967 (Act 388) further
defines ‘common law’ as ‘the common law of England’. The said section also
defines the meaning of ‘written law’ which includes the Federal Constitution,
F Acts of the Federal Parliament, Emergency Ordinances by the Yang di-Pertuan
Agong under art 150, Federal Subsidiary Legislation, 13 State Constitutions,
Enactments and Ordinances of State Assemblies, State Subsidiary Legislations
and local authority by-laws. The effect of these definitions is that both written
law and common law are sources of law in Malaysia. The common law would
G remain as a source of law, unless it has been abrogated, restricted and modified
by written law, post-1956.

[35] Section 3(1) of the Civil Law Act 1956 provides that:
H (1) Save so far as other provision has been made or may hereafter be made by any
written law in force in Malaysia, the Court shall
(a) In Peninsular Malaysia or any part thereof, apply the common law of
England and the rules of equity as administered in England on the 7 April
1956; …
I
(b) …
(c) …
598 Malayan Law Journal [2020] 4 MLJ

Provided always that the said common law, rules of equity and statutes of general A
application shall be applied so far only as the circumstances of the States of Malaysia
and their respective inhabitants permit and subject to such qualifications as local
circumstances render necessary.

[36] Since its incorporation, our courts have also applied the law on trusts, B
the rules of equity and the common law of England in Malaysia. In the case of
Hassan bin Kadir & Ors v Mohamed Moidu bin Mohamed & Anor [2018] supp
MLJ 266 at p 276, the Federal Court had affirmed the applicability of the law
of trusts derived from the rules of equity in Malaysia by reason of the statutory
application of s 3(1)(a) of the Civil Law Act 1956, as stated in para 24 of the C
Law Report:
[24] It is trite that the modified form of the Torrens System of registration of titles
relating to alienated land as applied under the Code does not prevent the creation of
beneficial interest in land whether under ‘express trust’, ‘constructive trust’ or
‘resulting trust’ arising out of the operation of law. This is derived from the rules of D
equity which is applicable in this country by virtue of the s 3 of the Civil Law Act
1956.

[37] Therefore, it follows that the concept of secret trust, which is part of the
law of trust and is governed by the rules of equity and the common law of E
England, is applicable in Malaysia subject to the proviso to s 3(1) of the Civil
Law Act 1956 unless there is an explicit abrogation, variation, restriction or
modification by written law. In the case of Majlis Perbandaran Ampang Jaya v
Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389; [2006] 2 CLJ 1, Abdul
Hamid Mohamad FCJ (as he then was) stated: F
Strictly speaking, when faced with the situation whether a particular principle of
common law of England is applicable, first the court has to determine whether there
is any written law in force in Malaysia. If there is, the court does not have to look
anywhere else. If there is none, then the court should determine what is the
common law as administered in England on 7 April 1956, in the case of West G
Malaysia.

[38] In the recent Federal Court case of Tony Pua Kiam Wee v Government of
Malaysia and another appeal [2019] 12 MLJ 1; [2020] 1 CLJ 337, Nallini
Pathmanathan FCJ reiterated the principle of law that: H

[106] … for the common law position to be abrogated there must be specificity in
terms of the written law altering irrevocably the common law position.
…
[108] There is a common law presumption that the common law shall continue to I
apply until and unless the Legislature passes law with the express intention of
excluding it …
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A (See also Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v
Muziadi bin Mukhtar [2020] 1 MLJ 141; [2020] 1 CLJ 1 (FC)).

[39] In the light of the foregoing provisions, the concept of secret trust is
statutorily applicable in Malaysia. What is apparent is that the Malaysian Wills
B Act 1959 or other statutes or Acts of Parliament do not explicitly abrogate the
application of secret trust. In fact, it’s application is endorsed in the written law.
Section 30 of the Wills Act 1959 provides as follows:
30 Construction of wills
C (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
D Ordinance of the Straits Settlements (SS 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,
E 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.
F
[40] Section 100 of the Evidence Act 1950 provides as follows:
100 Construction of wills
Nothing in sections 91 to 99 shall affect the construction of wills, but in the States
G of Malacca, Penang, Sabah and Sarawak or any of them they shall, subject to any
written law, be construed according to the rules of construction which would be
applicable thereto if they were being construed in a Court of Justice in England.

[41] By virtue of these provisions, the applicable law for the interpretation of
H will made in Penang, as in the present appeal, which purport to create a secret
trust is that of English law and rules of equity.

[42] The proviso to s 3(1)(a) of the Civil Law Act 1956 does not exclude the
applicability of the law on trust and secret trust. This is because the court
I upholds secret trust to prevent fraud on a testator and the rules of equity are
applied to compel the trustee under a will to fulfill his promises to the testator.

[43] Furthermore, secret trusts depend on the operation of equity to be

effective. As Snell wrote:
600 Malayan Law Journal [2020] 4 MLJ

Secret trusts are a device by which the express intention of a person to make a A
testamentary gift may be enforced despite the testator’s failure to comply with the
formalities for the execution of a will or testamentary disposition under the Wills
Act 1837. They demonstrate the rationale of preventing the fraudulent reliance on
the statutory formalities as a justification for denying the enforceability of the secret
trustee’s expressly undertaken obligation’. (See Snell’s Equity, 32nd Ed Ch 24). B

[44] In our considered view, there is no cogent reason to ‘abrogate’ secret

trust in Malaysia. There are circumstances in which a testator creates ‘secret
trust’ to facilitate the intention to provide for certain parties.
C
[45] In this instant appeal, the evidence reveals that the deceased intended to
provide for his second wife’s children as they are the only next of kin who are
dependent on the deceased for financial support and some of them are still
studying at the material time. The deceased trusted the first defendant (his
D
brother) and the second defendant (his nephew) to manage the estate wisely to
take care of the second wife’s children’s needs. The plaintiffs on the other hand
are working adults, and had not been in contact with the deceased for more
than seven years and were not on good terms with the deceased.
E
[46] Both the defendants gave evidence under oath that the estate of the
deceased would be used for the benefit of the deceased’s second wife and their
children and not for their own benefit.

[47] In the circumstances of the case, it is also in the interests of justice that F
the secret trust is upheld so that the deceased’s estate is also not given to benefit
the defendants, but to uphold the wishes of the deceased.

[48] Therefore, the first leave question is answered in the affirmative.

G
THE SECOND LEAVE QUESTION

[49] At the outset, we note that the second leave question is not relevant to
the determination of this instant appeal. It must be distinctly remembered that
the plaintiffs’ case is not related to the law on secret trust. The plaintiffs’ case is H
anchored mainly on the ground that the deceased had no testamentary capacity
to make the will or that there was undue influence exerted on the deceased. The
defendants’ case is that there was no undue influence exerted on the deceased
because the defendants are not true beneficiaries but trustees under a secret
trust who hold the property for the benefit of the deceased’s second wife and I
their children. The elements to prove secret trust and testamentary capacity of
a testator are different.

[50] In any event, we will deal with the second leave question as follows.
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A [51] We have dealt with the elements to prove a secret trust in paras 30–32 of
this judgment.

TESTAMENTARY CAPACITY OF A TESTATOR

B [52] Generally speaking, testamentary capacity refers to the ability of a

person to make a valid will. From the authorities, testamentary capacity is
referred to as the ‘sound disposing mind’ of the testator. A testator is said to
have testamentary capacity when the testator is fully conscious, has a sound
mind, understands and approves the contents of the will.
C
[53] The meaning of testamentary capacity was explained by Cockburn CJ
in Banks v Goodfellow (1870) LR 5 QB 549, in the following words:
It is essential to the exercise of such a power that a testator shall understand the nature
of the act and its effects; shall understand the extent of the property of which he is
D 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
E not have been made.
…
In deciding upon the capacity of the testator to make his will, it is the soundness of the
mind and not the particular state of bodily health, that is to be attended to; the latter may
be in a state of extreme imbecility, and yet he may possess sufficient understanding to
F direct how his property shall be disposed of … (Emphasis added.)

[54] The case of Banks v Goodfellow not only lays down the test for
will-making capacity, but also makes it clear that a partial unsoundness of
mind, not affecting the person’s general faculties and not operating on the
G
person’s mind in regard to a particular testamentary disposition, will not be
sufficient to deprive the person of the power to dispose of their property in a
will.

H [55] The Federal Court in Udham Singh v Indar Kaur [1971] 2 MLJ 263
and Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2
MLJ 1; [2004] 4 CLJ 309 adopted and applied the meaning of testamentary
capacity as enunciated by Chief Justice Cockburn in Banks v Goodfellow.

I [56] The term ‘sound disposing mind’ was further explained by Jeffry Tan J
(as he then was) in Khaw Cheng Bok & Ors v Khaw Cheng Poon & Ors [1998]
3 MLJ 457 in the following words:
… formal validity of a will is that the testator’s mind must go with his testamentary act.
602 Malayan Law Journal [2020] 4 MLJ

It is necessary for the validity of a will that the testator should be of sound mind, A
memory and understanding — words which have consistently been held to mean sound
disposing mind. It is essential that the testator should know and approve of its
contents … (Emphasis added.)

[57] His Lordship also referred to Halsbury’s Laws of England (4th Ed, B
Vol 17) at para 898 to elaborate the term ‘sound disposing mind’. The relevant
excerpt of the judgment are as follows:
Halsbury’s Laws of England (4th Ed) Vol 17 para 898 thus enunciated a sound
disposing mind: C
In order to be of sound disposing mind, a testator must not only be able to
understand that he is by his will giving his property to one or more objects of his
regard, but he must also have capacity to comprehend and to recollect the extent of his
property and the nature of the claims of others whom by his will he is excluding from
participation in that property … It is essential that no disorder of the mind should D
poison his affections, pervert his sense of right or prevent the exercise of his natural
faculties, that no delusion should 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. (Emphasis added.)
E
[58] In summary, the will could only be valid if the testator has testamentary
capacity. What is meant by testamentary capacity is that the testator must be
fully conscious, have a sound mind, understand and approve the contents of
the will.
F
[59] In this connection, we refer to the Federal Court decision in Gan Yook
Chin where His Lordship Steve Shim FC applied the testamentary capacity test
as enunciated by Chief Justice Cockburn in Banks v Goodfellow as cited at
para 53 of this judgment.
G

[60] In the case of Tan Cheu Kee v Lim Siew Hwa [2016] MLJU
1599; [2016] 1 LNS 1684, the Court of Appeal adopted and applied the
principle as set out in Banks v Goodfellow as follows:
In applying these principles, and particularly the test in Banks v Goodfellow, I have H
focused my mind to the determination of whether the Deceased suffered from any ‘disease
of the mind’ and/or ‘insane delusion’ when he executed the Will and whether the
circumstances leading to his act of committing suicide impairs testamentary
capacity. Having sifted through the evidence, I do not find any evidence showing
that the Deceased suffered from any disease of the mind nor was delusional to the
I
extent of insanity. The evidence of the witnesses who had interacted with the Deceased
immediately prior to him executing the Will does not indicate any disease or infirmity of
mind. Neither does the circumstances that led to the suicide indicate unsoundness
of mind. There is absolutely no medical evidence to support the Defendant’s contention
that the Deceased was of unsound mind when he executed the Will …
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A …
Thus, considering the totality of evidence, and particularly the deceased’s interactions
with witnesses who testified at trial, I am convinced that in executing the Will, the
Deceased understood the nature and effect of making a will as well as the extent of the
property he was disposing and to whom he was disposing them to. And since the Deceased
B is shown to have testamentary capacity, the testator’s will must be give effect to ...
(Emphasis added.)

[61] In Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 MLJ 97; [2002] 4
CLJ 90 Gopal Sri Ram JCA (as he then was) stated:
C
... Now, the law upon the subject of a testator’s testamentary capacity, we find to be
well settled. The decided cases show quite clearly that very slight testamentary capacity
is required for the making of a will. The cases in which wills have been held invalid for
lack of testamentary capacity involve testators who were utterly insane either upon the
finding of the probate court or by reason of an order appointing a committee on the
D ground of insanity of the testator.
…
What the law requires to vitiate testamentary capacity is an insane delusion existing
at the time of making of the will. This will include insanity at the time of the making or
giving instructions for the making of the will. There are numerous authorities on the
E point. We find it quite unnecessary to deal with all of them here ... (Emphasis
added.)

[62] Testamentary capacity cannot be equated with contractual capacity. In

the words of His Lordship Gopal Sri Ram JCA (as he then was) in Lee Ing Chin
F
@ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97:
Thus, it may be soon that testamentary capacity is not to be equated with
contractual capacity. A person may lack the mental capacity to enter into a contract
and yet may have sufficient testamentary capacity.
G
[63] We venture to suggest that this approach is consistent with the concept
of task-specific capacity, that is, that a person’s capacity to make a decision in
one area or task (for example will-making) is distinct and separate, and
therefore cannot be extrapolated from their capacity to perform another task
H (for example entering into a contract and making decision about finances etc).

[64] It is also a well settled principle that to displace prima facie testamentary
capacity and due execution, mere proof of serious illness is not sufficient. There
must be clear evidence that the illness of the testator so affected his mental
I faculties as to make the deceased unequal to the task of disposing of his
property.

[65] This principle could be gleaned from a plethora of authorities. In Lee

Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, His
604 Malayan Law Journal [2020] 4 MLJ

Lordship Gopal Sri Ram JCA (as he then was) held that medical evidence must A
support that the deceased lacked testamentary capacity on the day the will is
executed. The relevant portions of the judgment are as follows:
It may thus be seen 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. B

…
As we have said earlier, there was not a shred of evidence to show that the deceased lacked
the mental capacity to make a will. We have had the evidence of the relevant witnesses
(in particular DW1) on the point read over to us several times during argument. C
There is not a shred of evidence, medical or otherwise to show that the deceased lacked
testamentary capacity on 16 April 1997. Accordingly, the finding by the learned
judge against the validity of the will on the ground of the deceased’s alleged mental
incapacity was based on no evidence and cannot stand. Further, a close reading of the
judgment of the learned judge shows that his finding of the lack of mental capacity based
on the available medical evidence was a matter of pure speculation and conjecture. At the D
risk of repetition, we emphasize that the medical evidence does not support a conclusion
that the deceased suffered from unsoundness of mind at any time, in particular at the
date of the will. (Emphasis added.)

E
[66] In Lee Ing Chin, the deceased was 82 years old, suffering from terminal
cancer and died less than two weeks after he made his last will. In this case, the
testator was suffering from cancer of an aggressive nature where the testator’s
throat and oesophagus were affected and the testator was given intravenous
drip and blood transfusion. Even so, the Court of Appeal upheld the will of the
F
deceased and that decision was affirmed by the Federal Court. His Lordship
Gopal Sri Ram JCA said:
The deceased was of course not in a state of perfect health because he was suffering
from terminal cancer. But on the authorities, perfect health is not a sine qua non of
testamentary capacity. G
…
The mere fact that the deceased was seriously ill with cancer or that the first defendant
being the propounder of the will was present at the execution of the will by the deceased
does not in our judgment throw any doubt on the validity of the will. In the present
instance, there is ample evidence, already adverted to, which supports a finding in H
favour of the validity of the will. (Emphasis added.)

[67] In Lee Ing Chin, the Court of Appeal cited an Indian case, that is, Kishan
Singh v Nichhattar Singh AIR 1983 P H 373. In that case, a deaf and dumb
person who was suffering from cancer of his back and head made a will. The I
court ruled that the testator’s will is valid and held that:
… the mere fact that the deceased was having cancer of the back did not mean that he was
not in a fit mental condition to make the will. A testator of a will does not have to be
found to be in a perfect state of health to have his will declared valid. The only criterion
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A is that the testator was capable of understanding the nature of his act, which was
fully proved in this case. Further, the mere fact that the propounder of the will was
present at the time of the execution of the will alone is not sufficient to doubt the
genuineness of the will. (Emphasis added.)

B [68] Further, reference also can be made to the decision in Carmel Mary
Soosai v Josephine Lourdsamy Ratnavathy R. Soosai & Ors [1987] CLJ Rep 498
where the court opined:
... I now tum [turn] (sic) to the next allegation raised by the caveators, ie, the
deceased’s lack of testamentary capacity due to ill-health.
C
It is not disputed that at the time of his death, the deceased was a chronic diabetic. He
had already lost sight of his left eye and was slowly losing sight of the other. The medical
evidence shows that he had been a chronic diabetic for at least 5 years before his
death and this had led to his undergoing an operation on 9 January 1982 to remove
his prostate gland. Prior to that, on 27 November 1981, he had also undergone a
D cataract operation to correct his eye but this operation turned out to be unsuccessful
as he had an irreversible damaged optic nerve which was already there before the
operation. DW6, who provided the follow-up treatment after the operation, did
not rule out of the possibility that the deceased’s chronic diabetic condition could
have caused the blindness to his left eye.
E The 3 doctors who examined and treated him of his various ailments, DW4 for his
diabetic, DW5 who performed the prostate gland operation and DW6 who did the
follow-up treatment of his left eye, all agreed that they were not competent to testify to
the deceased’s mental capacity during the period the will was executed as they have no
professional qualifications. However, a psychiatrist of 28 years’ standing, DW1, was
more than prepared to testify that every person who suffers diabetes suffers mental
F
incapacity. The most significant aspect of DW1’s evidence is that he never saw or
examined the deceased, and that his conclusion was based largely on his vast experience
in the field of psychiatric medicine and on the medical report of DW4, DW5 and
DW6 who examined and treated the deceased during the relevant period.
The deceased was an accountant and he managed his own firm, assisted by 3
G employees who were not professionals. There is also evidence to show that during
the period of ill-health, apart from the time when the deceased had to be
hospitalized and after his 2 operations, followed by a period of recovery, he
continued working in his office, keeping to his regular hours from 10.00 until 5.00
p.m with a break for lunch. He continued doing so up to the day before his death ...
H ... On the consideration of all evidence pertaining to the deceased’s mental capacity, the
opinion of DW1, who never saw or examined the deceased cannot carry any weight ...
(Emphasis added.)

[69] In an English case, Simpson, Re, Schaniel v Simpson (1977) 121 Sol Jo
I
224, the court stated that the making of a will by an old and infirmed testator
ought to be witnessed and approved by a medical practitioner who satisfies
himself as to the capacity and understanding of the testator and makes a record
606 Malayan Law Journal [2020] 4 MLJ

of his examination and findings. A

[70] However, it has been established by the Court of Appeal of England and
other jurisdiction after Re Simpson that the principle stated in Re Simpson which
is also known as ‘Golden Rule’ is merely guidance for solicitor and
noncompliance did not mean that there was a lack of capacity. For an example B
in the case of In the Matter of the Estate of Eva Burns, deceased; Burns and others
v Burns [2016] EWCA Civ 37, it was held as follows:
The judge was also well aware of ‘the golden rule’ and Mr Welton’s apparent
ignorance of it. It has to be recalled, however that the ‘rule’ is a prudent guide for
solicitors dealing with a will for an aged testator or one who has been seriously ill. As C
is pointed out in Williams Op Cit at para 4.21, however, the rule does not constitute
a rule of law but provides guidance as to a means of avoiding disputes; ‘it is not a
touchstone of validity or a substitute for established tests of capacity or knowledge and
approval’. (Emphasis added.)
D
[71] In Key and another v Key and others [2010] EWHC 408 (Ch) (Ch),
Briggs J noted that the ‘Golden Rule’ was not a rule of law affecting the validity
of a will, but a recommendation for good practice. He said:
Compliance with the Golden Rule does not, of course, operate as a touchstone of E
the validity of a will, nor does non-compliance demonstrate its invalidity. Its
purpose, as has repeatedly been emphasized, is to assist in the avoidance of disputes,
or at least in the minimization of their scope. As the expert evidence in the present
case confirms, persons with failing or impaired mental faculties may, for perfectly
understandable reasons, seek to conceal what they regard as their embarrassing
shortcomings from persons with whom they deal, so that a friend or professional F
person such as a solicitor may fail to detect defects in mental capacity which would
be or become apparent to a trained and experienced medical examiner, to whom a
proper description of the legal test for testamentary capacity had first been provided.

[72] Before concluding the issue under discussion, perhaps it would be G

useful to highlight a recent case decided in the United States of America which
is of much relevance to the present case. The case is In re Estate of Luce No
02–17–00097-CV (Tex App Nov 15, 2018). In this case, the Court of Appeal
in Texas admitted a will where the testator had not personally signed the will
and had merely communicated his wishes by blinking. The facts of the case are H
these: The testator was involved in a serious accident that left him in a
quadriplegic condition. A week after he was admitted to the hospital, he was
intubated, which made him unable to speak. Paralysed from the chest down
and unable to move, the testator was only able to express by blinking his eyes to
signify ‘yes’ and ‘no’. Through this blinking system, his lawyer was able to draft I
a will based on the testator’s blinking answers to a series of essential queries, and
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A through this blinking system, he instructed a notary to sign the will for him.

[73] The Texas Court of Appeal ruled that the testator had sufficient mental
ability to understand he was making a will, the effect of making the will, and
the general nature and extent of his property. This is because, the evidence
B showed that the testator did not suffer any brain injury from the accident. The
medical records indicated that he was lucid.

[74] Further, according to the lawyer, the testator was of sound mind, and he
C had no concerns about the testator’s capacity. The lawyer testified that he met
the testator alone and had determined that they could communicate using the
blinking system. The testator communicated that he wanted to make a new will
disposing of his assets and property, who he wanted to inherit under the new
will, and that he intended to revoke any prior wills. The lawyer also testified
D that the testator understood the nature and extent of his assets and knew who
his family members were. The testator, who was in the midst of divorce
proceedings with his wife, made it clear that he did not want his wife to take his
assets under the new will.

E [75] Moreover, two days after the will’s execution, a doctor examined the
testator who was still unable to speak because he was intubated, but they
communicated by the testator nodding his head ‘yes’ and ‘no’ or by him casting
his gaze at index cards labelled ‘yes’ and ‘no’. As a result of the examination, the
doctor determined that the testator was fully competent and able to make his
F own decisions, including financial and medical decisions. Based on this
evidence, the court affirmed the will of the testator.

[76] In the light of the authorities discussed above, the position in law on
testamentary capacity is clear: if the testator is ill, it does not deprive his ability
G or capacity to execute it. There must be clear evidence to depict on insane
delusion existing in the testator’s mind at the time of making of the will.
Essentially, it is sufficient for the testator, at the time the will is executed to have
sufficient mental ability to understand he is making a will, the effect of making
the will, and the general nature and extent of his property. The duty of the court
H is to give effect to the will of the testator and not deprive him of the right to
select the beneficiaries based on his wish.

[77] Having said that, we must emphasis that testamentary capacity

assessments are ultimately questions of fact to be determined by courts when
I the issue of a person’s capacity arises in the course of legal proceedings.
Therefore, the courts must scrutinise of all the relevant evidence that was
presented at the trial before reaching a decision on the balance of probabilities.
In Nicholson v Knaggs [2009] VSC 64, Vickery J of the Supreme Court of
Victoria said:
608 Malayan Law Journal [2020] 4 MLJ

The proper approach of the Court to the question whether a testator has A
testamentary capacity is clear. Although proof that a will was properly executed is
prima facie evidence of testamentary capacity, where the evidence as whole is
sufficient to throw a doubt upon the testator’s competency, the Court must decide
against the validity of the will unless it is satisfied affirmatively that he was of sound
mind, memory and understanding when he executed it or, if instructions for the will B
preceded its execution, when the instructions were given.

BURDEN OF PROVING TESTAMENTARY CAPACITY

[78] The legal principle on burden of proving testamentary capacity is clear C

as well. The burden is on the party propounding the will. In the present case it
is the defendants.

[79] This position was well explained by learned author Sarkar on Evidence
(14th Ed), Vol 2 at p 1396. The relevant part of the passage is reproduced D
hereunder:
Wills — The law has been thus stated in two well-known cases: ‘These rules are two;
first, that the onus probandi lies in every case upon the party propounding a will and he
must satisfy the conscience of the court that the instrument so propounded is the last will
E
of a free and capable testator. The second is, that if a party writes or prepares a will,
under which he takes a benefit, that is a circumstance that ought generally to excite
suspicion of the court, and call upon it to be vigilant and jealous in examining the
evidence in support of the instrument, in favour of which it ought not to pronounce
unless the suspicion is removed, and it is judicially satisfied that the paper propounded
does express the true will of the deceased … F
Those who propound a will must show that the will of which probate is sought is the will
of the testator, and that the testator was a person of testamentary capacity. In ordinary
cases, if there is no suggestion to the contrary, any man who is shown to have executed a
will in ordinary form will be presumed to have testamentary capacity, but the moment
the capacity is called in question, then at once the onus lies on those propounding the will G
to affirm positively the testamentary capacity. Moreover, if a will is only proved in
common and not in solemn form, the same rule applies even though the action is to
attack a probate which has been granted long ago …
A propounder of the will has to prove its due and valid execution and if there are any
suspicious circumstances he must remove them from the mind of the court — Facts to be H
considered on the question of due execution of will. (Emphasis added.)

[80] On this issue, our Federal Court in Gan Yook Chin neatly summed up
the law in the following terms:
I
As regards the burden of proof, the Court of Appeal quite rightly stated the settled
law, ie that where the validity of a will was challenged, the burden of proving
testamentary capacity and due execution lay on the propounder of the will as well as
dispelling any suspicious circumstances surrounding the making of the will; that the
onus of establishing any extraneous vitiating element such as undue influence, fraud
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A or forgery lay with those who challenged the will. In this connection, we find the
approach taken by the High Court of Australia in William Henry Bailey & Ors v
Charles Lindsay Bailey & Ors (1924) 34 CLR 558 to be instructive. Therein Isaacs
J said inter alia:
(1) The onus of proving that an instrument is the will of the alleged testator lies on
B the party propounding it; if this is not discharged, the court is bound to
pronounce against the instrument.
(2) This onus means the burden of establishing the issue. It continues during
the whole case and must be determined upon the balance of the whole
evidence.
C
(3) The proponent’s duty is, in the first place, discharged by establishing a
prima facie case.
(4) A prima facie case is one which, having regard to the circumstances so far
established by the proponent’s testimony, satisfies the court judicially that
D the will propounded is the last will of a free and capable testator.
(5) A man may freely make his testament, howsoever old he may be; for it is
not the integrity of the body, but of the mind, that is requisite in
testaments.
(6) The quantum of evidence sufficient to establish a testamentary paper must
E
always depend upon the circumstances of each case, because the degree of
vigilance to be exercised by the court varies with the circumstances.
(7) As instances of such material circumstances may be mentioned: (a) the
nature of the will itself regarded from the point of simplicity or
F complexity, or of its rational or irrational provisions, its exclusion or
non-exclusion of beneficiaries; (b) the exclusion of persons naturally
having a claim upon the testator; (c) extreme age, sickness, the fact of the
drawer of the will or any person having motive and opportunity and
exercising undue influence taking a substantial benefit.

G (8) Once the proponent establishes a prima facie case of sound mind, memory and
understanding with reference to the particular will, for capacity may be either
absolute or relative, then the onus probandi lies upon the party impeaching the
will to show that it ought not to be admitted to proof.
(9) To displace a prima facie case of capacity and due execution, mere proof of
H serious illness is not sufficient: there must be clear evidence that undue
influence was in fact exercised, or that the illness of the testator so affected
his mental faculties as to make them unequal to the task of disposing his
property.
(10) The opinion of witnesses as to the testamentary capacity of an alleged
I testator is usually for various reasons of little weight on the direct issue.
(11) While, for instance, the opinions of the attesting witnesses that the
testator was competent are not without some weight, the court must judge
610 Malayan Law Journal [2020] 4 MLJ

from the facts they state and not from their opinions. (Emphasis added.) A

[81] The Federal Court in Ong Eng Hock & Anor v Ong Cheng Guan &
Anor [2018] 5 MLJ 701; [2018] 7 CLJ 154 held as follows:
Leave question 1: Whether the probate rule that the burden of proving that the
B
instrument so propounded is the last will and testament of the testator applies in a
case where the impugned will has already been admitted into probate and a sealed
grant of probate issued by the High Court?
Answer: ‘Those who propound a will must show that the will of which probate is sought
is the will of the testator ... has to prove its due execution and valid execution and if there
C
are any suspicious circumstances … remove them from the mind of the court. …’ But
where a will has been admitted to probate, the person who seeks revocation of the probate
has to establish sufficient cause.
Question 2: Where the challenge to the impugned will is on grounds of forgery, and
specifically that the executor had forged the will, whether the burden lies entirely on
the challenger in proving forgery? D
Answer: Where the will has been admitted to probate, the person who seeks
revocation of the probate on the ground of forgery has the burden and initial onus
to prove forgery. Where the will has not been admitted to probate, it would appear
from all cases decided that both propounder and challenger could not be absolutely freed
from the burden and or onus of proof. (Emphasis added.) E

[82] Reference is also made to Choo Mooi Kooi @ Choo Soo Yin v Choo Choon
Jin @ Jimmy Choo and other suits [2012] 2 MLJ 691. In this case, Varghese
George JC (as he then was) neatly summed up the law in the following terms: F
In a nutshell the guiding principles in this area of law that could be distilled from the
said decisions (as also from various other cases considered in them) could be
summarised as follows:
(a) where the validity of a will is challenged, the testamentary capacity of the testator
must be first established; G
(b) the burden of proving:
(1) testamentary capacity, and
(2) due execution was on the propounded of the will, as was also the burden
of H
(3) dispelling any suspicious circumstances that surrounded the making of
the will.
(c) there must be evidence that the contents of the will had been read over to the
deceased and the deceased understood the dispositions being made;
I
(d) the onus then shifted to the party challenging the validity of the will to establish
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A to the satisfaction of the court on relevant and cogent evidence the existence of any
vitiating circumstances;
(e) mere suspicions or conjectures are not ordinarily sufficient to dispense the
validity of the signature or the contents of the will;
(f ) the court will not concern itself with the fairness of the disposition in the will
B
once satisfied that the testator understood the dispositions being made and the will
in question was duly executed;
(g) whether the execution of the impugned will was a result of ‘testamentary
incapacity’ (ie not of good health, sound mind, memory and understanding) was a
C specific finding of fact to be made on the totality of the evidence led before the
court;
(h) the burden of proof often shifts about in the process of the cause according to the
successive steps of the inquiry, before leading to the decisive inferences to be made
… The propounded of the will still had the ultimate burden of dispelling any
D suspicious circumstances that may have surrounded the making of the will;
(i) the elements or ingredients to be established on evidence to successfully uphold
the consideration of ‘natural love and affection’ as valid, included evidence of some
spontaneous happening in the normal course of a relationship predicated by birth
(natural) or a fondness or affection of mind (love) together with a measure of
E personal attachment or feeling for the other;
(j) a duly executed MOT could still be invalidated and any transfer thereby
registered could be set aside under s 340(2)(b) of the National Land Code 1965 as
having been obtained through a ‘void or insufficient instrument’, where it can on
facts be shown that there was not exuberated any ‘natural love and affection’ as
F between the transferor and the transferee;
(k) the jurisdiction of the court to grant relief on an allegation that there was indeed
‘undue influence’ exerted, is as wide and as flexible as the exigency of the case
demand. The court could hold that there was undue influence even without direct
proof of any dominance over the will of a party to a transaction …
G (l) even where undue influence may not have been definitely established on
evidence, the court could still strike down a will or instrument that had been
challenged on that count, under the inherent duty of the court to be vigilant against
suspicious circumstances which could go to the root of the validity of any document
before the court.
H
[83] On the factual matrix of the present appeal, we agree with the findings
of the Court of Appeal that the learned High Court judge had misapprehended
the concept of secret trust and misdirected her mind in deciding that the
deceased did not have the testamentary capacity to make the will dated
I 18 December 2013. We ourselves have perused the evidence on record and are
satisfied that the defendants had adduced sufficient evidence at the trial to
establish that the deceased had testamentary capacity to make the will on
18 December 2013. In our view, the learned High Court judge had failed to
appreciate adequately, properly or at all the following evidence:
612 Malayan Law Journal [2020] 4 MLJ

(a) although the deceased was suffering from terminal cancer of his kidney, A
it did not automatically mean that the deceased did not have the
testamentary capacity on 18 December 2013 by reason of his cancer. It
was sufficient for the deceased to have a sound mind on 18 December
2013;
B
(b) the evidence of DW1, the advocate who prepared the will and his
secretary, DW2, who witnessed the execution of the will by the deceased
on 18 December 2013 shows that the deceased was very clear in his
mind when he gave instructions to DW1 on 18 December 2013 in the
morning, and when he executed the will on 18 December 2013 in the C
afternoon. The deceased also gave specific instructions to DW1 in
person and in private to name both the defendants as executors, after
being informed by DW1 that there was a requirement to have two
executors if he has minor children. This proves that the deceased was of
sound mind, able to comprehend and had in his mind that his minor D
child with his second wife, who was still studying at that point in time,
were the true beneficiaries of his estate. DW1 and DW2 are
independent and disinterested witnesses;
(c) all the five witnesses who saw the deceased on 18 December 2013 E
affirmatively and consistently stated that the deceased was of sound
mind, lucid, conscious, mentally alert and able to communicate on
18 December 2013;
(d) the plaintiffs called as their witness, PW1, a urologist and the only
F
doctor who treated the deceased. A careful scrutiny of the testimony of
PW1 reveals that the plaintiffs failed to establish that the deceased did
not have testamentary capacity. PW1 did not see the deceased on
18 December 2013. Apart from that, PW1 testified that when he last
saw the deceased on 13 December 2013, although the deceased was G
disturbed, he was still lucid, conscious and of sound mind. Therefore,
the phrase ‘… still having trouble to cope with the disease, mentally and
physically’ stated by PW1 in his letter dated 13 December 2013 could
not be taken as evidence of a lack of testamentary capacity on
18 December 2013. PW1 did not see the deceased on the day the will H
was executed by the deceased, and when he last saw the deceased on
13 December 2013, he confirmed that the deceased was still lucid,
conscious and of sound mind;
(e) the defendants also called Dr Azlan as their last witness who also was an I
expert witness. Dr Azlan’s testimony on the medication prescribed to the
deceased and the possibility of any side effects are consistent with PW1’s
testimony and observation that the deceased was lucid, conscious and of
sound mind;
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A (f) there were also no independent medical evidence before the trial court to
substantiate the plaintiffs’ assertions that the deceased did not have
testamentary capacity to execute the will which he executed on 18
December 2013. Thus, in our view, the issue of the deceased’s allegedly
impaired mental health was not proven at any point in time; and
B
(g) the defendants established that the will is the last will of a free and
capable testator. The defendants also established a prima facie case of a
sound mind, memory and understanding with reference to the
particular will.
C
[84] The learned High Court judge failed to consider sufficiently or at all the
above evidence and facts which are favorable to the defendants. It is trite that
when a trial judge fails to properly analyse or analyse at all the entirety of the
evidence adduced on record before the court, it is the duty of the appellate
D court to intervene and correct the decision. The Court of Appeal was right in
interfering with the findings of fact by the learned High Court judge on the
issue of the deceased’s testamentary capacity.

E
[85] Based on the aforesaid, it is our considered view that the second leave
question is irrelevant. However, even if the question must be answered, it must
be answered in the affirmative.

THE THIRD LEAVE QUESTION

F
[86] The argument most pressed and relied upon by the plaintiffs is that the
doctrine of secret trust is against public policy because it is used to assist the
testator’s purported ‘sins’ or ‘skeletons in the cupboard’ to benefit his ‘genes or
acquaintance’.
G
[87] With respect, the submission is misconceived. The overriding purpose
behind secret trusts is to enable property to be left in a will without explicitly
naming who the property is being left to, by a bequest to a person who has
previously promised to hold that property as trustee for the intended recipient.
H As wills are, by nature, public documents open to scrutiny, the concealment of
identity that a secret trust provides is vital for those desiring a degree of privacy
in the final disposal of their estate. In one sense, it would indeed not be in ‘good
conscience’ to deny a testator the ability to distribute their estate as they see fit.
I
[88] We find support in the following statement by Lord Sumner in the case
of Blackwell v Blackwell [1929] AC 318 as follows:
In itself the doctrine of equity, by which parol evidence is admissible to prove what
is called ‘fraud’ in connection with secret trusts, and effect is given to such trusts
614 Malayan Law Journal [2020] 4 MLJ

when established, would not seem to conflict with any of the Acts under which from A
time to time the Legislature has regulated the right of testamentary disposition.

[89] Tommy Cheung in his article Secret Trusts and Testamentary Freedom in
Trusts & Trustees [2019] Vol 25(7), pp 730–736, had this to say:
B
An express trust is an ‘act of a party’, whereas a constructive trust ‘arises by operation
of law as from the date of the circumstances which give rise to it’. Equity enforces
secret trusts because testators expressly create them. It would be unfair to the
testator if the courts were to disallow his/her last wish based on a formality issue.
Thus, equity looks to the substance rather than the form.
C
When we look at Section 9 of the Wills Act 1837, there are undeniably formal
requirements attached to testamentary dispositions. However, they are only there to
prevent the fraudulent or unconscionable acts of any individual. Importantly, they
require substantial evidence to prove the intent of the testator. The formality
promotes and protects the testator’s freedom to dispose of his/her property as he/she
wishes after death. The individual’s right to control his/her property is part of the D
policy underlying the Wills Act 1837. It is a public policy in which equity aims to
protect a testator’s testamentary disposition and ensures that it runs according to
his/her intent so long as it does not contradict other principles or policies.

[90] The concept of secret trust is consistent with the fundamental human E
right of privacy. Sheridan, LA in his article English and Irish Secret Trusts [1951]
67 LQR 314 opined:
… the desire of a testator for secrecy about his dispositions is just as much
indulgeable as the desire of the State to ensure the existence of reasonable evidence
of those dispositions. The trouble with the wills Act is that it tries to provide for the F
evidence without making allowance for the secrecy. Any new provision that may be
enacted would have to endeavor to strike a balance between the need for evidence
and the desire for secrecy.

[91] Nwudego Nkemakonam Chinwuba in his article Filling The Gaps G

Between Colonial Legal Heritage And Prevailing Local Customs In Family
Relations: The Place Of Secret Trust [2016] African Journal of International and
Comparative Law, Vol 24(1), pp 45–63 articulated:
The view that remains apposite is that it is a trust that has evolved with the ‘face of
H
common humanity’ to uphold the private intentions of men or the last wishes of a
dying human. The tension that arises from testacy and acceptance of the secret trust
as a valid trust within a strict regime of testacy laws indicates that the recognition of
the trust is not based on a right to property alone. For the right to property with its
incident of free alienation, is steeped in limitations while the secret trust is a
humanistic principle based on the good nature of earlier generations who made I
allowance for the evolutionary nature of wrong and right in the life of a human
being.

[92] Further, the author noted as follows:

 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 615

A Thus one can assert that the secret trust is a legitimate legal tool that assures a person
space. Against the interest of the settlor to dispose of his property privately is also the
interest of the recipient.

[93] To deny the existence of an agreement between the testator and the
B intended trustee would be to commit a fraud, and, providing the trust complies
with the requisite conditions, it is unrealistic to uphold a strict reading of
statute to allow the trust to fail. The court may intervene if there is a risk of an
unconscionable result, like the denial of a testator’s wishes. Alastair Hudson, in
Understanding Equity & Trusts (9th Ed, Routledge, 2015) 70 notes that ‘the
C
purpose of equity is to introduce fairness in circumstances in which statute
might permit unfairnesses’.

[94] Another justification of the enforcement of secret trusts is that it is made

D outside and independently of the will. This ‘dehors the will’ theory provides
that the secret trust is not created by the will, but rather arises from the
independent obligation accepted by the trustee. It was utilised and developed
by the House of Lords in Blackwell and its overwhelming advantage is that it
does not presuppose a contradiction between the enforcement of secret trusts
E and the English Wills Act 1837. The trustee/legatee promises to perform acts
outside the will, and equity enforces these inter vivos promises as the testator
desires because ‘equity looks into the intent rather than the form’, which always
compliments the statues, but is not confined by them. Danckwerts J in Re
Young [1951] Ch 344 at p 350, in holding a secret trust valid, stated that:
F
… [the person] does not take by virtue of the gift in the will, but by virtue of the
secret trusts imposed upon the [trustee] who does in fact take under the will.

[95] The modern justification of the enforcement of secret trusts was neatly
G summarised by Megarry VC in In re Snowden:
… the whole basis of secret trusts, as I understand it, is that they operate outside the
will, changing nothing that is written in it, and allowing it to operate according to
its tenor, but then fastening a trust on to the property in the hands of the recipient.
It is at least possible that very different standards of proof may be appropriate for
H cases where the words of a formal document have to be altered and for cases where
there is no such alteration but merely a question whether, when the document has
been given effect to, there will be some trust of the property with which it dealt.

[96] There are passages to the like effect in Lewin on Trusts (18th Ed, Sweet
I & Maxwell, 2008) and Halsbury’s Laws of England (4th Ed, Butterworths,
London 2007 Reissue). The editors in Lewin said in para 3-077 as follows:
The competing explanation of secret trusts is that the statutory requirements of the
Wills Act 1837 are entirely disregarded since the secondary donee does not take by
virtue of the will.
616 Malayan Law Journal [2020] 4 MLJ

[97] The editors in Halsbury’s Laws of England explained in para 672: A

Creation of secret trusts. Secret trusts have commonly been regarded as a product of
the principle that equity does not allow the statute which requires certain written
formalities for the creation of interest in land to be used as an instrument of fraud.
More recent cases, however, appear to establish that there is no conflict with the
Wills Act 1837 since the trust operates outside as it is said, dehors the will. ... This B
trust is not regarded as a testamentary disposition coming within the Wills Act 1837
but as a trust within the ordinary equity jurisdiction.

[98] Alastair Hudson, in his book Equity and Trust (8th Ed, Routledge 2015)
C
at p 323 observes that secret trusts constitute an exception to the English Wills
Act. The author had this to say:
One further explanation of the operation of secret trusts would be, quite simply,
that they constitute an exception to the Wills Act which defies straightforward
definition … it does not correlate easily with the existing rules concerning trusts and D
therefore its difference ought to be recognised as much as the possibilities of its
complying with more general principles of English trusts law. … it is only possible
to correlate secret trusts with the broadest possible principles of the law of trusts:
that is, that the conscience of the secret trustee will prevent that person from
denying the office imposed on him once he receives a gift under the will.
E

[99] Similarly, Snell’s Equity (33rd Ed), paras 24–031 at p 663 states as
follows:
The preferable theory is that secret trust operate outside the will. They rest on the
simple principle of enforcing the equitable obligations binding a man’s conscience, F
and do not depend on specific proof of fraudulent conduct by the trustee. The will
is only relevant as far as it completes the constitution of the trust by vesting the
property in the intended trustee. Accordingly, since the title of a beneficiary under
a secret trust arise outside the will, he does not lose his benefits if he witnesses the
will or predeceases the testator. On the other hand, if the secret trustee predeceases G
the testator the secret trust probably fails because there is a failure of the legacy upon
which the trust was intended to operate.

[100] In that regard, the Court of Appeal had correctly observed at para 11(c)
that: H
… the court’s endorsement of the secret trust does not breach the Wills Act or any
other statutory law. … It only goes to show bona fide and the true intention of the
testator, if the plea of the secret trust succeeds. Thus, as a general rule, the only
instance the probate can be set aside is in a case, if the respondent had established the
testator did not have testamentary capacity to execute the said will. ( I

[101] Quite recently, the Hong Kong Court of Appeal in Tsang Tat Hung &
Anor v Tsang Tat Wing [2017] HKCU 1165 quoted with approval the following
view:
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
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A Principles of secret trusts

35.1. The principles governing secret trusts have been set out in Lewin on Trusts
19th ed para. 3-076 as follows:
These are trusts outside a will that affect a beneficiary under a will [the 1st
B plaintiff ]. Equity has engrafted on the above common law principles rules of its
own, by which the primary donee taking under a will [the 1st plaintiff ] may be
compelled to hold the gift [the part share of the Property] on trust for a
secondary donee [the 2nd plaintiff ] under an arrangement with the testator [the
Deceased] taking effect outside the will. Such trusts are called ‘secret trusts’
because one reason for creating them is to keep the ultimate beneficial interest
C out of the will, which is a public document. Secret trusts arise where a testator
intends his gift to the primary donee to be employed as he, and not the primary
donee, desires and tells the primary donee of his intention and (either by an
express promise or by the tacit promise which is signified by acquiescence) the
primary donee encourages the testator to bequeath his money in the belief that
D his intentions will be carried out … (Emphasis added.)
35.2. Although that passage refers to ‘encouragement’, it is clear that that is not essential
to the creation of a secret trust as the editors of Lewin said in the following paragraph
(3-077):
E The equitable rules seem originally to have been based upon there having been
a fraudulent encouragement of the testator but the fraud theory has more
recently been formulated in terms that equity fastens a trust on the primary
donee under the will where his conscience is bound by the extraneous
arrangement. The competing explanation of secret trusts is that the statutory
F requirements of the Wills Act 1837 are entirely disregarded since the secondary
donee does not take by virtue of the will. Though the facts commonly involve
immoral and selfish conduct on the part of the primary donee that is not a
necessary element. This would seem to support the theory that secret trusts take
effect outside the will, which is relevant only so far as it completes the
G constitution of the trust.

[102] What can be distilled from the above discussion is that a secret trust, as
a creature of common law, operates outside the formalities of Wills Act 1959.
Nevertheless, a secret trust is a form of an inter vivos express trust in which the
H testator and trustee mutually agree to form a trust relationship for the lifetime
of the testator. Once this is understood, one can also understand that secret
trusts are enforced to promote the main policy principle behind the Wills Act
1959: to protect the testamentary freedom of testators.
I
[103] In Malaysia, the testamentary freedom of a testator was recognised long
before the Wills Act 1959 was enacted. Taylor J in In re Tan Soh Sim, deceased;
Chan Lam Keong and 4 others v Tan Saw Keow and 3 others [1951] 1 MLJ
21; [1951] 1 LNS 77 observed as follows:
618 Malayan Law Journal [2020] 4 MLJ

By the year 1930 a much higher proportion of the non-Malay population had A
become domiciled in the Malay States and the practical difficulty of administering
a variety of personal laws, especially in relation to intestate succession, had greatly
increased. This and other causes led to the passing of the Distribution Enactment
(Now Cap 71) which repealed the Recognition Order in Council and introduced
the main provisions of the English Statute of Distribution, 22 & 23 Charles 11, Cap B
10, to govern succession to the estate of every intestate (other than a Moslem) who
died locally domiciled. This was not in any sense an attack on Chinese custom or on
any other personal law. Testamentary freedom is absolute. The Chinese
property-owning classes are accustomed to making wills and the practice is not
uncommon among the Indian and other communities. They were all put on the same C
basis and, granted a local domicil, there was no room for uncertainty. Everybody
could give full effect by his will to his own personal views on family succession,
customary or otherwise, and if he did not make a will, then the one statute applied
irrespective of the community. But as regards other matters within the domain of
the personal law, such as marriage, adoption and guardianship, the law of Perak
reverted to the state in which it was before 1893 and the law of the other States D
remained in the same state as it had been in throughout-namely, that in the absence
of any statutory provision, the Courts applied the personal law of the community
concerned. (Emphasis added.)

E
[104] Thus elucidated, any inconsistency or contradiction between the
doctrine of secret trust and the Malaysian Wills Act 1959 is a non-starter. In the
premise, the third leave question is answered in the negative.

CONCLUSION
F

[105] We have given our anxious consideration to the submissions advanced

on behalf of the plaintiffs/appellants but we do not find any merit in the
appellant’s submissions to justify interference with the Court of Appeal’s
judgment. G

[106] In this instant appeal, in giving effect to the secret trust, the Court of
Appeal took into consideration various factors which include:
(a) respect over the principle of testamentary freedom and the testator’s last H
wish;
(b) secret trust is an established principle of trusts law; and
(c) the interest of society requires that a testator should make adequate
provision for his surviving family. I

[107] For those reasons, we affirmed the decision of the Court of Appeal and
dismissed the appeal with costs. So ordered.
 Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun
[2020] 4 MLJ Yean & Anor (Zawawi Salleh FCJ) 619

A Appeal dismisses, COA’s decision affirmed.

Reported by Ashok Kumar