“What are the criteria one must prove to show that a will signed by an elderly person is invalid?”
CASE:
BRIEF FACTS:
- This case concerned the validity of a will [the said Will] executed by the Deceased, Mr Kong Siew Tong on 10 May 2014 when he was 97 years old.
- All parties to the proceedings were the Deceased’s children. Essentially the Deceased’s children sued each other with regard to the validity of the said Will.
- The Will substantially favoured the Respondents [the parties who won at the High Court] and appointed the First Respondent as the sole executor of the estate.
- The Appellants [the parties who lost at the High Court] challenged the Will on the grounds that the Deceased lacked mental capacity [testamentary capacity] when he signed the Will and the Appellants further argued that the Will was made under suspicious circumstances and undue influence.
- The Respondents counterclaimed for an order that the Will was valid and that a grant of probate should be granted.
DECISION OF THE HIGH COURT (HC)
- The High Court upheld the validity of the Will, finding that the Deceased possessed the mental capacity to sign the Will and that there were no suspicious circumstances.
- The HC further held that the solicitor who prepared the Will was a credible witness.
- Dissatisfied, the Appellants appealed to the Court of Appeal.
DECISION OF THE COURT OF APPEAL (COA) – APPEAL ALLOWED
- The Court of Appeal held that the Will was invalid and that the Deceased had died intestate [ie without a valid will].
- The Court reaffirmed that mental capacity [testamentary capacity] of the Deceased is assessed at the time the Will is executed. While advanced age alone does not negate testamentary capacity, the Court stressed that where a person is of extremely old age, the evidence must be scrutinised with particular care.
- In this case, the Court found that there was a real doubt as to the Deceased’s capacity.
- The Court held that the testamentary capacity test concerns [a] the Deceased’s state of mind and not his physical state; [b] concerned the deceased’s capacity to understand and his ability to remember things; [c] these should be applied in relation to the particular transaction, its nature and complexity.
- The Court found that the evidence of the lawyer who prepared the Will was not credible for the following reasons [a] he did not produce any record of the Deceased’s instructions to draft the Will; [b] there was contradiction of his evidence regarding the Deceased’s alleged approval of the draft Will; [c] the lawyer could not remember many matters regarding his own role in the preparation of the Will; [d] he had changed his sworn evidence 3 times regarding the place where the Deceased signed the Will.
- The Court further found multiple suspicious circumstances surrounding the making of the Will, including the involvement of beneficiaries in its preparation, the omission of significant assets, the deprivation of the Deceased’s ability to revoke the Will, and the Respondents’ control over the Deceased’s movements and medical access.
- The Court also drew an adverse inference under section 114(g) of the Evidence Act 1950 against the Respondents for failing to call a medical practitioner who had examined the Deceased multiple times prior to his death to testify on his testamentary capacity.
- Taken cumulatively, the Respondents failed to discharge their burden of proving testamentary capacity and satisfactorily explaining the suspicious circumstances. The Will was therefore declared invalid.
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