Tutorial 8

Previously, Mr. Thorn added his newly acquired estate to his will. The instructions were as
follows:
a) My red Volkswagen Bettle to my wife;
b) RM60,000.00 to each of my children;
c) My saving account in Octopus Bank Berhad to my wife and children in equal share;
d) 4 shop lots to my siblings;
e) My eldest brother will receive RM50,000.00 for agreeing to be my executor;
f) A bequest of RM 15,000.00 to my best friend, Stone, and his wife, in equal share.
g) My BMW touring bike to be given to my eldest son if he passes in flying colors in
Business and Management Course. In the event he fails to fulfill the same, the bike
will be given to my youngest son.

Mr. Thorn’s beneficiaries are Mdm. Rose, his wife, his children, Mr. Log (eldest son), Ms.
Daisy, Ms. Dahlia, and Mr. Twig (youngest son). Mr. Thorn has four siblings, Mr. Pith (eldest
brother), identical twin sister, Ms. Heartwood and Ms. Sapwood and his youngest sister, Ms.
Bud.

The amendment has been made in a codicil and executed according to the Wills Act. One of
the witnesses is Mr. Pith’s wife, Ms. Calla.

Mr. Log is currently pursuing his study in Language and Art. He has no interest in business
and intends to have his own art gallery.

Both Mr. Thorn and Stone attended the same college in 2007 when they were both 19 years
old. Stone’s wife is Ms. Bud. Both died instantly due to an accident 2 months after the
executed codicil. They left their son; Aspen and he is under Mr. Thorn custody.

Determine the validity of the gift stated in the executed codicil.

ANSWER:
The issue is whether the gifts by Mr. Thorn as stated in the codicil are valid gifts?
Mr. Thorn’s codicil has introduced several amendments to his will, affecting the distribution of his
estate. These changes must be evaluated under Malaysian law, particularly the Wills Act 1959 (WA), to
determine their validity. There are few classifications of gifts, which are specific, general, demonstrate,
pecuniary, residuary.

a) My red Volkswagen Bettle to my wife.

It is valid as it fulfilled the requirements for the specific category.
In Section 2 of Probate and Administration Act 1959 (PAA), it states that “specific legacy” means a
legacy of specified property. It is a gift of a particular item or group of property owned by the testator,
distinguished in the will from other property of the same kind. Specific legacy indicates that it is a
movable property while specific devisee denotes immovable property. The properties shall be free from
encumbrances (charge, caveat). Takes priority over general legacies and are liable to abatement only if
the assets are insufficient to pay the debts.
For example, if the testator made a gift which leaves insufficient money to pay the debts, funeral
expenses and cost of administration, then the money for those expenses will be taken from pecuniary
legacies and not from specific legacies. The main characteristic is subject to the doctrine of ademption
(must be in existence at the time of death).
In the case of Re Abdullah Saleh Shooker, a legacy comes within the definition of "debt" in the
Moratorium Proclamation. Therefore, the executors should pay interest on the legacy at the rate of six
per centum per annum from the end of one year after the testator's death.
Here, the codicil bequeaths Mr. Thorn’s red Volkswagen Beetle to his wife, Mdm. Rose. This gift is
clear, specific, and unambiguous. There are no conditions attached to this bequest, making it
straightforward. According to Section 3 of the WA, a testator has the freedom to dispose of their property
as they wish, and this bequest does not contravene any statutory provision or public policy.
Therefore, this bequest is valid.
b) RM60,000.00 to each of my children.
For the part “RM60,000.00 to each of my children” it is valid as it fulfills the requirements for the
category “specific”. It is based on Section 2 of PAA and the case of Lim Soo Siam v Leow Yong Moey
& Ors, it was held that the legacy of $10,000 to the testator’s daughter for marriage expenses was
partially adeemed by her marriage during the testator's lifetime and by the payment by the testator
himself of her marriage expenses and that the balance should be paid to her for her sole use.
Applying to our case, the codicil shows that Mr. Thorn wishes to give RM60,000 to each of his children,
Mr. Log, Ms. Daisy, Ms. Dahlia, and Mr. Twig. This gift is also clear and unambiguous, specifying a
precise amount and identifiable beneficiaries. Under WA, there are no restrictions preventing a testator
from bequeathing specific sums of money to their children.
Consequently, this bequest is valid.
c) My saving account in Octopus Bank Berhad to my wife and children in equal share
The savings account falls under the category of general as it does not refer to any specific or particular
object. A gift of property to be provided out of the testator’s estate whether or not the property so
described forms part of the testator’s estate upon his death. This usually takes in the form of money.
In the case of Soo Bian Joo v Soo Boon Leong it was held that a gift arising from the general personal
estate of the testator and has no application to the distribution of property to the persons entitled under
intestacy.
In the case of Re Gage, a gift of ‘the sum of £1150 five per cent war loan 1929-1947 stock’ was held to
be a general gift even though the testator held the stock when the will was made as there was no
indication that the testator was referring to a property belonging to him.
Mr. Thorn’s codicil directs that his savings account in Octopus Bank Berhad be divided equally among
his wife and children. The beneficiaries are clearly identified, and the manner of distribution is
unambiguous. Under Section 4 of the WA, such a provision is valid provided the testator's intention is
clear, which it is in this case.
Thus, this bequest is valid.

d) 4 shop lots to my siblings;

The 4 shoplots are not deemed to be valid because it's uncertain on which shop lots and to be given to
which sibling. It is not clear and not specific.
The codicil bequeaths four shop lots to Mr. Thorn’s siblings, Mr. Pith, Ms. Heartwood, Ms. Sapwood,
and Ms. Bud. This bequest is not straightforward, specifying both the property and the beneficiaries.
Therefore, it is not valid.

e) My eldest brother will receive RM50,000.00 for agreeing to be my executor;

The authorities here are Section 2 of PAA, which provided the definition of “specific legacy” and the
cases that was mentioned earlier, which are the case of Re Abdullah Saleh Shooker and the case of Lim
Soo Siam v Leow Yong Moey & Ors.
Mr. Thorn stipulates that his eldest brother, Mr. Pith, receive RM150,000 for agreeing to be his executor.
This conditional bequest is permissible under Malaysian law, as executors can be compensated for their
services. The Wills Act 1959 does not prohibit such arrangements, provided the condition (agreeing to
act as executor) is met.
Therefore, this bequest is valid.

f) A bequest of RM 15,000.00 to my best friend, Stone, and his wife, in equal share.
Based on this bequest it can be both specific and pecuniary.
For category of specific the authorities used here are Section 2 of PAA and the cases that was mentioned
earlier, which are the case of Re Abdullah Saleh Shooker and the case of Lim Soo Siam v Leow Yong
Moey & Ors.
It is specific because Mr Thorn had instructed and specifically mentioned that the amount RM15,000.00
should be given to his best friend, Stone and his wife, Ms. Bud in equal share. It is also under the
category of pecuniary because it is a gift of money.
However, both Stone and Ms. Bud predeceased Mr. Thorn, dying two months after the codicil was
executed. Under Section 25 WA if a beneficiary predeceases the testator, the gift typically lapses unless
there is a substitute beneficiary (which are the children of the beneficiaries).
The general rule for lapse is that the beneficiary survives the testator. If the beneficiaries predeceased
the testator, the presumption of survivorship comes into the picture. Section 2 of Survivorship Act 1950
(SA) states that in all cases where two or more persons die in circumstances rendering it uncertain which
of them survived the other or others, such deaths shall (subject to any order of the court) for all purposes
affecting the title to property be presumed to have occurred in order of seniority and accordingly the
younger shall be deemed to have survived the elder.
Here, Stone and Mr. Thorn are the same age, therefore it can be presumed that Stone is older than his
wife, Ms. Bud and based on Section 2 SA, following the seniority, Stone died first then Ms. Bud. Even
though, Ms. Bud died she is included as a survivor. In this case, there is a substitute beneficiary named
Aspen, Stone and Ms. Bud's son. Therefore, by following the provisions given, Aspen, the son of Stone
and Ms. Bud, will receive the amount RM15,000.00.
Thus, this bequest is valid.
g) My BMW touring bike to be given to my eldest son if he passes in flying colors in Business
and Management Course. In the event he fails to fulfill the same, the bike will be given to my
youngest son.
The codicil provides that Mr. Thorn’s BMW touring bike be given to his eldest son, Mr. Log, if he
passes with flying colors in a Business and Management course. If Mr. Log fails to meet this condition,
the bike is to be given to Mr. Twig, the youngest son. Since Mr. Log is currently studying Language and
Art and has no intention of pursuing a Business and Management course, he did not fulfill the condition
of Mr. Thorn. Consequently, the condition precedent fails, and the bike should be given to Mr. Twig.
This conditional bequest is valid, as the condition made by Mr. Thorn is clear and enforceable.
Therefore, the bike goes to Mr. Twig
In conclusion, most of Mr. Thorn's bequests in the codicil are valid under Malaysian law, except for the
bequest to Stone and his wife, which lapses due to their predeceasing the testator. The conditional
bequest of the BMW touring bike to Mr. Log is also invalid due to the unfulfilled condition, and the
bike will go to Mr. Twig.
The next issue is whether the codicil was witnessed by Ms. Calla, who is the wife of Mr. Pith, a
beneficiary valid?
Based on the facts given, the codicil was witnessed by Ms. Calla, who is the wife of Mr. Pith, a
beneficiary. In Section 9 of the WA it states that if any person attests the execution of any will to whom
or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment of or
affecting any property, other than and except charges and directions for the payment of any debt or
debts, shall be thereby given or made, such device, legacy, estate, interest, gift or appointment shall, so
far only as concerns such person attesting the execution of such will, or the wife or husband of such
person, or any person claiming under such person or wife or husband, be utterly null and void, and such
person so attesting shall be admitted as a witness to prove the execution or to prove the validity or
invalidity thereof, notwithstanding such devise, legacy, interest, gift of appointment mentioned in such
will.
To simplify it means that gifts to an attesting witness or to wife or husband of attesting witness to be
void. A beneficiary or the spouse of a beneficiary should not witness a will, as it could be deemed invalid
due to potential undue influence or conflict of interest. Hence the gift to Mr. Pith, the beneficiary, who
is also the husband of the witness, would be void but the codicil is still valid.
The gift would now fall within residue, which is based on Section 19 WA, where it states that Unless a
contrary intention appears by the will, such property as is comprised or intended to be comprised in any
devise or bequest in such will contained, which fails or is void by reason of the death of the devisee or
legatee in the lifetime of the testator or by reason of such devise or bequest being contrary to law or
otherwise incapable of taking effect, shall be included in the residuary devise or bequest respectively,
if any, contained in the will. Which means that the residuary devises or bequests shall include estates
comprised in lapsed and void devises or bequests. Residuary is a gift of the testator’s remaining
property. If there is no other gift given, the gift of the whole estate is a residuary gift.
In conclusion, the gift bequested to Mr. Pith, the eldest brother of Mr. Thorn, a beneficiary of Mr.
Thorn’s will is void as Mr. Pith’s wife is a witness of Mr. Thorn’s will.
 Property passing under a will is governed
by the Wills Act.

Immovable property is governed by the

law of the country, while movable
property is governed by the law of the
testator's domicile.
Introduction

Property not disposable by will includes

Conditional gifts must align with property not owned by the testator, choses
recognized restrictions and will provisions. in action, and trust property.
Non-compliance with Condition
Non-compliance results in the property
becoming part of the residuary estate.
Immovable property (s.27 of WA)
Property Disposable by Will
Movable property (s.28 of WA)
A gift may be accepted or disclaimed.

If disclaimed, the gift becomes part of the

residue. The power of disposition by will is limited
to the extent of recognized interests to the
Disclaimer donee.
Requirements: person of Sui juris.

A gift under a will may fail due to lack of

Acceptance: case example Townson v Interest interest or failure of interest.
Tickell

Examples of failure of interest include

Property included in residuary devise if donee pre-deceasing the testator (s.19 of
the donee pre-deceases the testator (s.19 of
Gifts and the
WA), disclaimer, and ademption.
WA).

Exceptions: gift to testator's issue (s.25 of Lapse

Failure of Gifts
WA), alternative gift (Foo Yin Choo v Foo
Siew Lan), future gift (Re Midgley).
under a Will Legacy: a gift of chattels

Legacies & Devices Device: a gift of land

Specific gift fails if it does not form part of
the estate at the time of death.
Gifts are classified into 5 categories.

Can be partial. Ademption S.2 of PAA: a specific legacy means a

legacy of specified property.
Examples: Lim Soo Siam v Leow Yong
Moey & Ors, Low Gim Har v Low Gim Siah
Specific gifts are distinguished from other
properties in the will and are free from
Failure of Interest encumbrances.
Gift intended to extinguish a prior debt.

Specific
Conditions: debt precedes will, amount not Specific gifts take priority over general
less, advantageous to creditor, pecuniary legacies and are subject to the doctrine of
nature. ademption (must exist at the time of death).
Satisfaction Gifts
Lesser amount: consent of creditor. Examples: Re Abdullah Saleh Shooker, Lim
Soo Siam v Leow Yong Moey & Ors
Example: Re Fletcher
No specific object, provided out of the
Gift/condition void if against public policy. testator's estate, usually in the form of
money.
Public Policy
Example: Thrupp v Collett
Subject to abatement if the estate is
Insolvent estate: insufficient to pay for insufficient to pay debts, not subject to
funeral, debts. ademption.
General

Order of payment: Funeral expenses > Examples: Soo Bian Joo v Soo Boon Leong,
debts > testamentary disposition. Classification of Gifts Re Gage

Order of legacies abate: residuary > General in nature but paid out of a specific
general > specific. Abatement fund (e.g., education fund).

Demonstrative gifts treated as general if Demonstrative Not subject to ademption.

fund exhausted.
Example: Ashburner v Macguire
Example: Tan Boon Soo v Choa Eu Seng
A gift of money, usually general but may
Pecuniary be demonstrative or specific.

The testator's remaining property,

including lapsed and void devises or
bequests.

Residuary
Distribution based on the will, under s.19 of
WA.