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Mohamad Khairul Fathi Bin Mohamad Khir (235783)
Suhaili Azura Binti Mohamad Adzhar (235797)
Testamentary capacity is the mental capacity required to make a valid will . In the common
law tradition, testamentary capacity is the legal term of art used to describe a person's legal and
mental ability to make or alter a valid will. This concept has also been called sound mind and
memory or disposing mind and memory. The presumption of capacity where a will is rational,
professionally drawn, seemingly regular in form and is made by a person whose capacity is not in
doubt, there is a presumption that the will is valid. This presumption can be rebutted by a
challenger to the will showing that there is a real doubt about capacity. At this point the
burden of proving capacity moves to the propounder of the will to then show that there was
testamentary capacity at the time the will was executed.
According to the case of Udham Singh v Indar Kaur, the burden of proving testamentary
capacity rests on the person alleging the validity, of the will for instance, the petitioner who is the
propounder of the will.A propounder is a person who applies for the grant of probate to the ‘will’,
namely, the executor of a ‘will’ as does the burden of dispelling any suspicious circumstances that
may surround the making of the will.
According to Section 101(1) of Evidence act 1950 stated that when a person is bound to
prove the existence of any fact, it is said that the burden of proof lies on that person while
section 102 Evidence Act stated that whom burden of proof lies provides that the burden of
proof in a suit or proceeding lies on that person who would fail if no evidence at all were
given on either side
On top of that, the case of Krishnavani a/p Muniandy v Sethambal d/o Doraiappah &
Anor held that the onus of proving a ‘will’ is always on the propounder when the issue of
testamentary capacity of the grantor is raised and when there appears to be suspicious
circumstances surrounding the execution of the will. In other word, the burden of proving
testamentary capacity and due execution lies on the propounder of a will. The propounder is the
person who applies for grant of probate to the will, namely the executor.
In Banks v Goodfellow , it mentioned about the the validity of the will of John Banks. He
suffered from delusions that he was being persecuted by devils and also by a deceased local grocer.
His will was challenged on the basis that he was insane and therefore unable to make a will. The
will was found to be valid after trial by jury, before Brett J. On appeal, this judgment was
confirmed unanimously by a panel of four appeal judges in Queen’s Bench. The will was found to
be valid, not influenced by his delusions, and deemed rational, being in favour of his only close
relative.
In conclusion, the burden of proving is discharged upon the propounder when he have the
testamentary capacity during executing the valid will.
*Valid will is where the testator must be at least 18 years old, of sound mind, will in writing, signed and also witnessed by at
least 2 witnesses who will then sign in your presence and in the presence of each other.
In the Eu Boon Yeap & Anor v Ewe Kean Hoet, where the law stated that where unsoundness
of mind is alleged , the burden of proof on testamentary capacity lies on party propounding the
will.
In Barry v Butlin, there are 2 rules governing the nature of the onus of proof placed upon a party
propounding a will. Firstly, which is he must satisfy the conscience of the court that the instrument
so propounded is the last will of free and capable testator. Secondly, if a party writes or prepares
a will under which he takes a benefit that is to dispel any suspicious circumstances surrounding
the making of will.
It should be also be emphasised that suspicious circumstances in the context of wills relate to the
circumstances in the context of wills relate the circumstances surrounding the making of the will
and not the circumstances surrounding the testamentary capacity of testator. In the case of Tho
Yow Pew & Anor v Chua Kooi Hean , the testator was diagnosed as having nose cancer. He
became quite ill and administered to himself several drugs to alleviate the headache he was
suffering. By his last will and testament, the testator devised percent share in the half- share he
owned in house in KL to his mother, daughter and son respectively and the residue of his estate to
his sister. The testator’s wife was bequeathed RM 1 while testator’s 2 brothers were appointed as
executor and trustee of his estate. After the testator died, wife claimed pronouncement of validity
of will. The deceased was actually heavily dependent on steroid drug called dexamenthosone to
relief him from pain had actually causes him psychiatric problem due to long time use of the drugs.
Moreover, deceased have muscle weaknesses that reduce motor function to type will in question.
Hence, as suspicious that had been raised had not been satisfactory discharged by plaintiff, the will
was null and void but defendant appealed. The court later held that was misdirection of law when
he addressed suspicious circumstances to testamentary capacity instead of suspicious
circumstances on making the will. Therefore, retrial was ordered. A mere fact that the deceased
having cancer does not mean he is not in fit mental condition to make will. On the other hand, in
the case of The Estate of Hew Wai Kwong, the court held that the will was invalid due to the
existence of suspicious circumstances surrounding the making of the will
The onus is also on the propounder to dispel any suspicious circumstances where by read over the
clause as stated in Gan Yook Chin v Lee Ing Chin . In this case, the testator was seriously ill with
cancer did not throw any doubt on validity of the will as there was ample evidence supported
testator’s testamentary capacity. Once it was accepted that the testator understood the disposition
of will and that it was executed by him, there was end to any suspicious circumstances and other
collateral issue raise on validity of will. The mere fact of that deceased was seriously ill with
cancer did not throw any doubt on validity of will. The onus of establishing any extraneous
vitiating element such as undue influence, fraud and forgery lay with those who challenged it. This
is why propounder must prove testator free of choice and not influence by force, fraud or undue
influence where it will affected as probate would be refused.
In conclusion, the propounder of a will must establish and prove that testator understood the
disposition of will and it was duly executed by him as his will.

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Mohamad Khairul Fathi Bin Mohamad Khir (235783)

Suhaili Azura Binti Mohamad Adzhar (235797)

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