Robert left a will dividing his estate among his relatives. His executor, David, has questions about the validity of the will and the beneficiaries. The will is valid as it was in writing, signed by Robert, and witnessed by two people as required by law. Nicole is entitled to the house as evidence suggests she was Robert's favorite sister. Joe is only entitled to RM50,000 of the RM100,000 bank gift as the account held less. Kevin is entitled to the 10,000 remaining shares as the gift was general. Sandra is entitled to the car as an exception to lapse applies when the original beneficiary dies with issue.

1. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
APRIL 2010 PART C – QUESTION 1
1. Introduction
The law of succession is concerned with the transfer or devolution property upon death. It
can be devided into two principal, namely :
a) The law of intestate succession
b) The law of testate succession or the law of wills
In a property held in trust, if an individual holds the legal, but not the beneficial title to
property, then, on his death, although the legal title will pass under his will or under the
intestacy rules applicable to his estate, the beneficial title will remain vested in the person
who has beneficial title.
2. Facts
Robert (testator) - Died June 2009.
Nicole & Margaret - Robert’s sisters which in the will stated that th house in
Nilai Impian was to be given to his favourite sister.
Donald - To receive a BMW but Donald died in April 2009.
Sandra - Donald’s daughter.
Joe - To receive RM 100,000 in CIMB saving bank account.
Kevin - To receive 10,000 shares
James - As the witness and to receive RM 60,000 because of his
comradeship.
Lucy - James’s servant and witness of the will.
David - Executor named by Robert.
To advise David the validity of the will and the disposition in the will.
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2. ADMINISTRATION OF TRUST – LAW 556
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3. Issues
1. Whether the will made by Robert is valid.
2. Whether Nicole or Margaret is entitled to the house in Nilai Impian.
3. Whether Joe is entitled to RM 100,000.
4. Whether Kevin is entitled to 10,000 shares.
5. Whether Sandra, being Donald’s daughter is entitled to the BMW car.
6. Whether James as the witness entitled to RM 60,000.
4. Intestate/Testate
Upon his death, Robert had left a will to manage his estate. Therefore, he died testate. It
is the essence of testacy that there must be a legally valid and enforceable will in
existence.
Section 18 of Wills Act 1959 provides that a will is the intention of the testator as to how
he/she wants to dispose his property and it will become a legal document upon the death
of the testator.
5. First Issue - Whether the will made by Robert is valid.
5.1 The Law
Section 3 of the wills act state that a person may dispose of his property by will.
Section 5 of the wills act lay down the requirement of a will. Section 5(1) that the
will must be in writing to become a strong evidence of testator’s wishes and to
prevent fraud. Section 5(2) specifies that the will must be signed by the testator at
the foot and end of the document. The signature has to be witnessed by two or
more witnesses. Section 4 of the Probate and Administration Act 1959
provides that the court have the power to appoint an administrator to an estate of a
testator. Literally, the statutory formalities in the making of will are witnesses,
signature, acknowledgement (material) and writing (it must be written in form of
pencil, printed, typed, and by computer.
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3. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
5.2 The Application
The will was made, Robert wrote it on a piece of paper. Along
with that, James who was there as the witness had signed the will. 10 minutes
after the session, Lucy, James’s servant, arrived and it was mention in the facts
that Robert had told Lucy about the will and Lucy then signed the paper which
making her as the second witness. This shows that the three of them was there at
the time the will was made. When the will was being prepared for probate, it was
found that the will made by Robert was not dated. There is no provision in the
Wills Act which mentioned that a will needs to be dated and vice versa.
Moreover, in the case of Katchi Fatima it was held that a non dated will is valid.
5.3 Conclusion
The will made by Robert is valid even though it had not been dated. This is by
virtue of Section 3 and Section 8 of the Wills Act which lay down the requirement
of a will. It is also by virtue of Section 5(2) of the Wills Act that the witnesses
during the will been made must be minimum of two person. All the requirements
have been fulfilled in order to consider the will as a valid will.
6. Second Issue - Whether Nicole or Margaret is entitled to the house in Nilai Impian.
6.1 The Law
It has to be determined whether the house at Nilai Impian given by Robert is a
specific gift or general gift. Specific Gift is a gift for a special item. It has two
characteristic :
a) It forms a special part of the testator’s estate at the date of his death
b) That specified part of the testator’s estate can be severed from the rest of the
testator’s estate.
A precondition is that the beneficiaries should survive the testator in order to take
the benefit, or else the gift will lapse. The exceptions to the doctrine of lapse,
whereby, a gift to a predeceased person will not lapse if he/she left behind an
issue. General Gift is a gift not of particular item but of something which is to be
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4. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
provided out of the testator’s general estate. It need not form part
of the testator’s property at the time of his death. When there is
ambiguity in determining the beneficiaries in the will, then the equivocation
principle will be applied. This principle is also called latent ambiguity and it
arises if a description of the object or the subject matter of the gift is applicable to
two or more persons or things.
In the uncertainty of subject matter or object is illustrated in the case of Charter v
Charter, the testator, T, by his will appointed ‘my son, Forster Charter’ as his
executor and gave him residuary estate. He also directed him to pay annuity and
allow maintenance to his mother ‘so long as they reside together in the same
house’. T had a son named Forster Charter, but this son had died some years
before the testator made his will and he could not be the son referred to. At the
time the will was made, T had two sons, William Forster Charter and Charles
Charter. Probate was granted to William Forster Charter. Charles applied for
revocation on the ground that he, Charles, was the person named in the will. The
judge admitted evidence of the surrounding circumstances when T made his will.
The court found out that Charles was living at home with his parents and working
on T’s farm, that William had lived away from home for some years and seldom
visited T, and that T did not call him ‘Forster’ but always ‘Wiliam’ or ‘Willie’.
The judge decided in favour of Charles. William appealed to the House of Lords.
The four members were evenly divided. Lord Chelmsford and Lord Hatherly
thought the will was not uncertain or ambiguous. But Lord Cairns and Lord
Selborne upheld the decision of the judge. They considered that the provision in
the will under which the executor was directed to pay the annuity and follow for
maintenance to T’s widow – so long as they reside together in the same house, did
not apply to William and so there was uncertainty or ambiguity. Once uncertainty
or ambiguity was established, evidence of surrounding circumstances of the
testator at the time he made the will could be admitted under the armchair
principle and this evidence pointed clearly to Charles and Charles won.
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5. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
6.2 The Application
The gift to Robert’s sister is a house at Nilai Impian. And it was to be given to his
favourite sister. Robert had two sisters, Nicole and Margaret. From the facts
given, Margaret has been residing in Australia for the last ten years and Nicole
lives nearby Robert’s house. In order to advise David of the disposition of the
estate in the will, here, uncertainty or ambiguity appear in determining who is the
beneficiary of the will. By applying the armchair principle and evidence of
circumstances, together with the case of Charter v Charter, obviously Margaret
was out of Robert sights for the last ten years and it is hard to see from the eye of
a reasonable person how Margaret could be Robert favourite sister for she was
way out of bound and distanced from Robert. While Nicole, lives nearby Robert’s
house and the words ‘favourite sister’ may fall on her because she is the person
whom nearer to Robert than Margaret.
6.3 Conclusion
Therefore, to conclude, the house in Nilai Impian should be given to Nicole after
evidence of surrounding circumstances been apply by the virtue of the Armchair
Principle in the case of Charter v Charter.
7. Third Issue - Whether Joe is entitled to RM 100,000 in Robert’s CIMB account.
7.1 The Law
A specifies legacy or specific devise fails by ademption if its subject matter has
ceased to exist as part of the testator’s property at his death. However, neither
demonstrative nor general legacies fail by ademption. Specific legacy is a gift by
will or specified personal estate. General legacy is a gift not of any particular
thing, but of something which is to be provided out of the testator’s general estate.
Its subject matter may or may not form part of the testator’s property at his death.
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6. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
Demonstrative legacy is a hybrid between specific and general
legacy. It is a gift which is general in nature but which is directed to be satisfied
primarily out of a specified fund or specified part of the testator’s property.
In the case of Ashburner v Macguire where the bequest was of the interest to his
sister for life and the principal of the said bond, on the deceased of his sister to her
four daughters. The debtor became bankrupt and the testator received a small
dividend in his lifetime. There were other dividend paid to the creditors after the
testator’s death. There was also in the case a bequest in these words. ‘ I bequeath
to Mr Wm, Beauses, my capital stock of 1000 in the India’s Company Stock.’
The testator had exactly 1000 stock at the time of making his will and no more but
sold out the whole of it before his death. No legacy arose as to his legacy of the
stock. The Lord Chancellor aid no claim countenanced that claim. The legacy was
gone. The bequest was considered to be specific of the stock, not pecuniary with
reference to a fund.
7.2 The Application
In his will, Robert had left RM 100,000 in his CIMB Bank account to his brother,
Joe. This is a demonstrative legacy since it is to be satisfied out of the testator’s
fund which is Robert’s CIMB saving’s account. However by the virtue of
Ashburner v Macguire, since the bequest is specific in nature, that is, Robert’s
CIMB savings account.
7.3 Conclusion
Joe is only entitled to RM 50,000 not RM 100,000 as specified in the will. This is
because, the balance in the CIMB bank account is only RM 50,000. Thus it is not
sufficient to pay to Joe the specified amount of the will. This is by the virtue of
Ashburner v Macguire and Demonstrative Legacy.
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7. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
8. Fourth Issue - Whether Kevin is entitled to 10,000 shares.
8.1 The Law
It has to be determined whether the shares given by Robert is a specific gift or
general gift. Specific Gift is a gift for a special item. It has two characteristic :
a) It forms a special part of the testator’s estate at the date of his death
b) That specified part of the testator’s estate can be served from the rest of the
testator’s estate.
A precondition is that the beneficiary should survived the testator in order to take
the benefit, or else the gift will lapse. The exeptions to the Doctrine of Lapse,
whereby, a gift to a predeceased person will not lapse if he/she left behind an
issue. General Gift is a gift not of particular item but of something which is to be
provided out of the testator’s general estate. It need not form part of the testator’s
property at the time of his death.
Section 18 of the Wills Act specifies that wills should be construed to speak from
the death of the testator. It is to take effect as it has been executed immediately
after the testator death unless a contrary shall appear by the will.
8.2 The Application
The 10,000 shares bequeathed to Robert’s brother, Kevin is a general gift since it
did not specify the details of share to be given to Kevin. By the virtue of Section
18, Kevin is entitled to the shares since it was Robert’s intention to bequeath the
shares irrespective of which ever share. He did not make other intention in his
will.
8.3 Conclusion
The fact stated that originally Robert had 10,000 shares when he made the will.
However he had sold 5000 of the shares in Sime Darby Bhd during his lifetime.
Then Robert bought 5000 shares in Nestle thus leaving a remainder of 10,000
shares after his death. Kevin is entitled to this remaining 10,000 shares since
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8. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
Robert did not specify the type of shares to be bequeathed and
also by the virtue of it being a general gift and authority from Section 18 of Wills
Act.
9. Fifth Issue - Whether Sandra, being Donald’s daughter is entitled to the BMW car.
9.1 The Law
It has to be determined whether the shares given by Robert is a specific gift or
general gift. Specific Gift is a gift for a special item. It has two characteristic :
c) It forms a special part of the testator’s estate at the date of his death
d) That specified part of the testator’s estate can be served from the rest of the
testator’s estate.
A precondition is that the beneficiary should survived the testator in order to take
the benefit, or else the gift will lapse. The exeptions to the Doctrine of Lapse,
whereby, a gift to a predeceased person will not lapse if he/she left behind an
issue.
General Gift is a gift not of particular item but of something which is to be
provided out of the testator’s general estate. It need not form part of the testator’s
property at the time of his death. Section 19 of Wills Act stated that lapse refers
to the failure of testamentary gift arising during the death of the devisee or legatee
in the testator’s lifetime. Exception to Section 19, is that by the virtue of Section
25 of the Wills Act the gift to the beneficiary who predeceased the testator will
not lapse if he leaves behind an issue who will then be the donee of the gift.
9.2 The Application
The gift to Donald is a BMW car. Since it is a valuable and form a specific part of
Robert’s estate at the date of his death. Since Donald died in April 2009 before
Robert who died in June 2009, the Doctrine of Lapse is applicable. Since Sandra
is Donald’s daughter, she should be able to receive the gift.
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9. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
However, since Donald is merely a friend and not related to Robert in any way as
provided for in Section 25 of the Wills Act, the exception where a gift to a
predeceased person shall not lapse if he/she had left behind an issue is not
applicable.
9.3 Conclusion
Sandra is not entitled to the BMW car bequeathed to Donald even though she is
Donald’s daughter. This is because the exception in the Doctrine of Lapse is not
applicable by the virtue of Section 25 of the Wills Act since Sandra is Donald’s
daughter and Donald died before Robert’s death and Donald did not leave any
issue of instrument nor instruction on inheritance.
10. Sixth Issue - Whether James as the witness entitled to RM 60,000.
10.1 The Law
There is no strict requirement in terms of the capacity of the witness for a wills for
as long as the witness is in mentally sound adult states. Attestation is the term
used to describe the act of witnessing o document or will. According to Section 9
of Wills Act, it stated that gifts to an attesting witness or to wife or husband of
attesting witness shall be void.
In the case of Ross v Caunters, the plaintiff sued the solicitor for professional
negligence because he failed to tell him that he cannot be a witness because his
wife is a beneficiary. Therefore she received nothing and the solicitor was held
negligent.
10.1 The Application
James is Robert’s best friend. Due to their friendship Robert bequeathed
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10. ADMINISTRATION OF TRUST – LAW 556
PREPARED BY AHMAD FAROUQ AMIR (2010313869)
RM 60,000 to James. By applying the authority from Section 9 of
Wills Act, James, as one of the witness the time the will made by
Robert, may not be the beneficiary of the estate because he will
become a bias witness.
Moreover, Judge Russel obiter’s in the case of The Estate of Bravda said that
the rule is necessary to assure reliable, unbiased witness. In this case the spouse
attested to the will and therefore the will failed to be admitted to probate, so the
property will be distributed according to the Distribution Act 1958.
10.2 Conclusion
James is not entitled to RM 60,000 even though it was stated in the will because
he is also the witness of the will and this is contrary for the principle of capacity
of witness which laid in Section 9 of Wills Act and by the virtue of Ross v
Caunters.
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