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WILL AND PROBATE – COURT OF APPEAL INVALIDATES WILL OF 97-YEAR-OLD TESTATOR: CAPACITY, SUSPICION AND UNDUE INFLUENCE PROVED

1. Summary and Facts:
Kong Kin Lay & Ors v Kong Kin Song & Ors [2025] 5 MLJ 891 concerns on validity of a will executed on 10.5.2014 by the late Mr Kong Siew Tong, who was 97 years old, illiterate, and wheelchair bound. He was survived by two wives and thirteen children, including the Appellants and Respondents. The will was prepared by the family lawyer, attested by two witnesses, and later kept under the Respondents’ control. The Appellants challenged the will on grounds of lack of testamentary capacity, suspicious circumstances, and undue influence. The High Court rejected all challenges, upheld the validity of the will, granted probate to the 1st Respondent, and appointed him sole executor. The Appellants then appealed to the Court of Appeal.

2. Legal Issues:
• Whether the High Court erred in holding that the Deceased had testamentary capacity, that no suspicious circumstances existed, and that the will was not procured by undue influence.
• Whether adverse inferences were wrongly drawn against the Appellants under section 114(g) of the Evidence Act 1950 due to their failure to question certain witnesses.
• Whether the “Golden Rule”, which requires medical confirmation of testamentary capacity in cases involving aged or infirm testators, ought to have been applied.

3. Court’s Findings:
• The Court of Appeal allowed the appeal and set aside the High Court’s decision.
• There was genuine doubt about the Deceased’s testamentary capacity, given his very old age, illiteracy, wheelchair-bound condition, and indications of senility.
• As the parties relying on the will, the Respondents failed to prove that the Deceased had the necessary capacity when the will was executed.
• The Court of Appeal considered the “Golden Rule” in Re Simpson’s Case, which recommends medical confirmation of testamentary capacity for elderly or infirm testators, and noted that no doctor was involved to examine or record testamentary capacity, which was fatal.
• Combined with undue influence and the suspicious circumstances of the will, this cast doubt on its voluntariness.
• The Court declared the will invalid, held that the Deceased died intestate, and appointed the 1st Appellant and 1st Respondent as co-administrators under the Distribution Act 1958.

4. Practical Implications:
This judgment affirms the several principle of laws including:
• Family members or potential beneficiaries should not control access, restrict contact, or otherwise exert influence over a testator, as this can invalidate a will.
• The burden of proving the testator’s capacity will bear on the person who seeking to enforce the will.
• The will shall be executed in a proper way in order to avoid dispute.

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