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They are links to my new blog.

TQ.

Regulation of Indecent, Obscene Matters on the Internet

The parents of children who use the public library are aware that some of the children have been visiting adult-oriented Websites. Concerned that some of these sites may contain obscene material, a group of parents complain to the Director of the Library.  As a result, the library purchases and installs software on all library computers blocking access to these sites. Another group of library users claim that this act amounts to censorship of the Internet contrary to what is provided in section 3(3) of the Communications and Multimedia Act 1998.

(i) Do you agree with their argument?

(ii) What are the legal considerations the court should take into account to determine whether the material amounts to “obscenity.”?

(iii) Suggest other methods the library could use to prevent the children from accessing these sites. (Total: 25 marks)

(i) The general rule under s.3(3) of the Communications and Multimedia Act 1998 (CMA) is that nothing in the CMA permits censorship on the internet. Additionally, Bill of Guarantee No.7 provides that the government will not censor the internet.

Based on the facts, only access to websites containing obscene material, were blocked by means of self-regulation, i.e. filtering. Thus, only a portion is blocked. It doesn’t amount to censorship. An example of actual censorship would be like that in China, where access to many websites are blocked. The objective of the CMA is to promote a secure and safe network, nurturing local content and culture. Hence, blocking access to obscene material is not amounting to censorship. S.211 and s.233 of the CMA attributes liability to those who provide obscene content. Furthermore, s.292 and s.293 of the Penal Code punishes those who circulate such material.

(ii) The test in determining what is obscene was laid down in R v Hicklin – ‘tendency to deprave and corrupt those whose minds are open to such immoral influences.’

Content Code: 3.0 and 3.1 – whether the content has the tendency to deprave and corrupt those whose minds are open to such communications specifically, (i) explicit sex acts/pornography, (ii) child pornography and (iii) sexual degradation

 Under the CMA, there are various sections prohibiting obscene materials:

s.211(1) – No content applications service provider or person using such service shall provide content which is indecent, obscene, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass any person.

s.211(2) – the penalty for contravention is a fine up to RM 50k or imprisonment up to 1 year or both; and be liable to a further fine of RM 1k per day for continuance of offence.

s.233(1) – A person who -

(a) by means of any network facilities or network service or applications service knowingly makes, creates or solicits; and initiates the transmission of any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

(b) initiates a communication using any applications service, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address commits an offence.

S.233(2) – A person who knowingly

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a)

- commits an offence.

s.233(3) – Penalty is a fine of up to RM 50k or to imprisonment up to 1 year or both; and a further fine of RM 1k per day for continuance of offence.

Under the Penal Code, there are other sections involved:

S.292 – whoever

(a) sells, distributes, publicly exhibits or in any manner puts into circulation, any obscene book, pamphlet, paper, drawing, painting representation or figure or any other obscene object whatsoever;

(b) – (e)

- shall be punished with imprisonment for up to 3 years or with fine or both.

S.293 – whoever sells, distributes or circulates to any person under 20 years, any such obscene object as referred to in s.292, is to be punished with imprisonment for up to 5 years, or with fine, or both.

(iii) Other methods to prevent access – (a) Educating the children to spread awareness of the negative effects of accessing such obscene material. (b) Situating the computers directly facing the counter, to prevent people from accessing such material.

Alibi - Section 103 of the Evidence Act 1950

S. 103 EA

Not all defences are statutory.

Alibi is not statutory, s.105 doesn’t apply.

It is governed by s. 103 of EA

Alibi: assertion made by the Accused in a criminal case or by a defendant in a civil case that he was elsewhere at or about the time of the offence/incident.

S. 3 to interpret s. 103

- logically, it would mean legal burden of proof on a balance of probabilities

However, you can still raise a reasonable doubt to acquit the Accused.

S. 11 EA – relevancy

S. 402A CPC – “establishing his alibi”

1. Dato Mokthar Hashim v PP [1983] 2 MLJ 232

Legal burden should be imposed on the accused person. However, in this case, the Federal Court referred to s. 402A of the Criminal Procedure Code which states “for the purpose of establishing his alibi”.

2. Yau Heng Fang v PP

The judge has misdirected himself in the previous case… in all criminal trials, the accused is deemed innocent until proven guilty by the prosecution. There is no burden placed on the accused to prove his innocence… defences such as alibi placed merely an evidential burden of introducing some evidence enough to create reasonable doubt in the minds of the jury. In other words, cannot look at s. 402 CPC, it is only procedure, should have looked at EA 1950.

3. Illian v PP

- Evidential burden was imposed

4. Arumugam Mothiyah v PP

The appellant brought to court a defence of alibi at a wedding. This was further supported by 4 other defence witnesses. The Sessions Court rejected the alibi because the accused could not name the bride and the bridegroom. The High Court however overturned the decision stating that the judge in the Sessions Court had failed to consider the fact that a wedding had in fact taken place on that time and date. [following the judgement in Illian v PP]

5. Empati Mat v PP

HC : legal burden of proof for alibi

COA agreed with the learned trial judge that the evidence did not have the effect of proving, supporting, corroborating or establishing in any way the alibi of the accused. The Court further referred to Dato’ Mokthar bin Hasim v PP and held that the accused only needs to establish his alibi on a balance of probabilities. The Court further stated that the accused had failed to cast a reasonable doubt. *This judgment is worded in a very confusing manner although the judge intended the correct position of the law*

6. Rosli Md Idrus v PP

- followed Dato Mokthar bin Hashim and also Empati Mat v PP where alibi has to be proved on the balance of probabilities.

7. Mohamad Najidi Abdul Halim v PP [2011] – This is a High Court case, on appeal from the Magistrate’s Court. The issue of burden of proof arises in this case. The Court referred to s.173(m)(i) to (iii) of the CPC.

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.

This section means that it is the duty of the prosecution to prove the case beyond reasonable doubt. Even if the accused fails to establish a defence but manages to raise a reasonable doubt, he can still obtain an acquittal.

The Court held that the lower court had made a misdirection in law when the trial Magistrate concluded that the accused had failed to prove alibi on the balance of probabilities and raise a reasonable doubt. The trial Magistrate had considered both balance of probabilities and raising a reasonable doubt to be one and the same thing, when in fact they are of two different levels.

Since it is a High Court, s. 182A of the CPC which is similar to s. 173(m) is referred to. The Court set aside the appellants conviction as the trial Magistrate has applied a higher burden on the defence of alibi, resulting in the miscarriage of justice.

8. Magendran Mohan v PP [2011] FC

One of the defences raised in this case against the charge of murder is alibi. FC held that only casting a doubt is sufficient to get an acquittal. 

3 Certainties of Express Private Trusts

Express Private Trusts

3 Certainties (Knight v Knight)

i) Certainty of intention

e.g. intention to give a trust property on condition that he graduates with flying colours. The condition must be fulfilled.

1. Quah Eng Hock v Ang Hooi Kiam (2000) 5 CLJ 126

The court referred to the need for the words used to be clear and unequivocal and held that words indicating that the donor intended to divest himself or herself of the beneficial interest would be sufficient for the purpose.

2. Comiskey v Bowring-Hanbury (1905) AC 84

A legacy was left to a widow “in full confidence” that she would leave the property on her death to one or more of the testator’s nieces. The precatory (expressing a wish) words were in themselves ineffective to create a trust. This will, however, went on to declare  that “in default of any disposition by here thereof by her will, I hereby direct that all my estate and property acquired by her under my will shall at her death by equally divided among the surviving said nieces” 

Majority of the HL held that a trust had been created and on the death of the widow, the property would pass to the nieces as provided for in the will.

3. Re Adams and Kensington Vestry

The testator bequeathed property to his wife for the ‘absolute use of my wife’. Court held that there was no trust because the wordings made it more like an absolute gift.

ii) Subject matter = make it certain with details

Re Kolb’s Will Trust

A reference to stocks and shares ‘in the blue-chip category’ was insufficiently certain because the term ‘blue chip’, has no precise meaning. The trust failed for uncertainty of subject matter.

Re Golay’s Will Trust - where a direction to allow a beneficiary to "enjoy one of my flats during her lifetime and to receive a reasonable income from my other properties" was upheld as the trustees could select and decide the matters. This decision was criticized because ‘reasonable income’ may not be certain.

iii) Object = beneficiary

The object can be a person, or group, or animal, or a charitable association.

Land Law Malaysia - Indefeasibility of Title

Indefeasibility of Title

Immediate indefeasibility

Registration immediately establishes indefeasibility except in cases of fraud. A purchaser in good faith for value immediately gets a good title.

Deferred indefeasibility

Registration of title obtained without fraud remains potentially open to attack if certain circumstances exist until the title is transferred to another (bona fide third party).

Effect of registration – s.340(1) – the title is indefeasible subject to subsection 2

S.89 – Conclusiveness of RDT

S.92 – indefeasibility of final title

S.341 – no adverse possession against an indefeasible title

Ways title becomes defeasible

Fraud [s.340(2)(a)], Misrepresentation [s.340(2)(a)], Forgery (b), Void/insufficient instrument (b), unlawful acquisition (c), operation of law [s.340(4)], claim in personam [s.206(3)], operation of other statutes

General rule:

Frazer v Walker (PC)

Facts: Mr. Frazer and his wife were registered owners of a farm. Mrs. Frazer borrowed money from a third party using the farm as security without her husband’s consent. She forged her husband’s signature since both of their signatures were needed for the mortgage contract. The land was sold to Mr.Walker who was unaware of the forgery. Court held that Mr. Walker had an indefeasible title as he was a bona fide purchaser for value without notice.

Indefeasibility of title and interests … is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which … a registered proprietor enjoys.

Exceptions:

Kesarmal v Valiappa Chettiar – ‘...title of a proprietor is liable to be defeated’.

S.340(2) –(a), (b), (c)

Fraud : s.340(2)(a)

Not defined in the NLC

1. Assets Co v Mere Roihi

fraud … means actual fraud, that is, dishonesty of some sort … Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered proprietor for value … must be brought home to the person whose registered title is impeached or to his agents.

2. Waimiha Sawmilling Co v Waione Timber Co

Dishonesty – a wilful and conscious disregard and violation of the rights of other persons

Principle

Fraud must have been brought home to the person whose registered title or interest is being impeached, i.e. he or his agent must be a party or privy to the fraud: Doshi v Yeoh Tiong Lay where the question was whether the knowledge which the solicitor (agent) had of the illegality and fraud of the transaction could be imputed to the client (Principal).

3. Doshi v Yeoh Tiong Lay

The appellant was the registered owner of premises in KL. He obtained a loan from a lawyer and deposited his documents of title together with 2 blank transfer forms duly executed by him to the lawyer. Upon default of payment, the lawyer transferred the premises to a company which was subsequently transferred to YTL, the current registered proprietor. YTL charged the land back to the company. The lawyer was involved in both transactions. The argument is that the knowledge is imputed on the client to know about the fraud committed earlier.

Held: YTL can retain the title. The solicitor’s knowledge cannot be imputed on the client to know about the fraud. Need to prove actual knowledge, not constructive knowledge.

4. Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors

Principle: the fraud complained of must have resulted in the registration of the title or interest and must have been committed before or at the time of registration

 - Whether it is a civil or criminal case, fraud has to be proved beyond reasonable doubt. It is a question of fact, from case to case.

5. Owe Then Kooi v Au Thiam Seng [1990] 1 MLJ 234

There were 2 actions.

i) Suit brought by Owe Then Kooi against Au Thiam Seng, his half-brother and a bank

ii) Foreclosure action brought by the bank against Au Thiam Seng and 5 others, all of them were registered owners of a piece of land charged to the bank.

Owe Then Kooi contended that he was the registered owner of 1/7 undivided share of the land in dispute and argued that Au Thiam Seng had fraudulently transferred that 1/7 share to himself. Here, Owe Then Kooi was sent to prison for conviction of murder which was reduced to culpable homicide. When sent to prison, he asked Au Thiam Seng to hold the 1/7 share as trust for him until he finishes his sentence. In prison, Owe Then Kooi signed certain documents brought by a lawyer’s clerk thinking that it was to create a trust for him. He could only converse in Chinese, so he did not know the contents of the documents which were in English. When he was released from prison, Au Thiam Seng gave him the sum of 4,350 ringgit purportedly being his share of rentals paid in respect of the land and due to him. Owe didn’t suspect anything until he received a notice of real property gains tax levied on the disposal of his 1/7 share, which led to the civil suit.

Held:  Au Thiam Seng had effected the transfer of Owe Then Kooi’s share to himself fraudulently. The payment of rental arrears was only his attempt to delay the discovery of fraud by Owe. Furthermore, his subsequent charging of the property with the other co-owners and failure to attend court proceedings cemented the fact that he had in fact acted fraudulently.

The title to the property reverted to Owe Then Kooi, but the charge remained vested in the bank. The bank only acquired an interest as charge in the land and not a title to the land. The registered proprietor can still sell the land to a third party who will take it subject to the registered lease or charge.

6. OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor Darul Takzim

In this case, the appellant bank was the chargee of a land granted by one Ng See Chow. Due to a default in payment, the appellant applied for the sale of the land. However, one Ng Kim Hwa claimed that he did not execute any transfer in favour of Ng See Chow and that the land was his. Court held that the appellant’s interest as chargee over the land was liable to be defeated under s.340(2)(b) and the proviso to s.340(3) didn’t apply although it was an innocent purchaser for value.

The principle established in OCBC case is that a chargee can only rely on the proviso in s.340(3) if the charge was granted after the land title was subsequently transferred, i.e. 2 transfers had taken place.

Mere knowledge of unregistered claim/interest amount to fraud?

(1) fraud against a previous holder of a registered title or interest

Datuk Jagindar Singh & Ors v Tara Rajaratnam

The respondent (Tara) was a registered proprietor of a land in Kulai, Johor. The 1^st (Jagindar) and the 2^nd (Suppiah) appellants were advocates and solicitors practicing in Johor. The 3^rd appellant Arul was a partner in the Singapore firm of Rodyk and Davidson. 

Tara’s brother-in-law, Dr.Das had financial difficulties and needed to get a loan from HKBC in Singapore where Jagindar was the guarantor. Jagindar wanted Tara’s land as security for the loan. At the time, the land was charged as security to Chung Khiaw Bank. Later, Suppiah asked Tara to sign a document which purported to put the land as security. However, the form used the word ‘transfer’ and when Tara questioned about it; he said that the transaction was going to be a security. Suppiah inserted a manuscript to the agreement, where there were 2 undertakings:

i) the land was not to be sold to anyone for one year without the respondent’s consent.

ii) The land would be transferred back to the respondent upon the repayment of 220k within 1 year.

Contrary to the undertakings, Suppiah transferred the property 18 days later to the 3^rd appellant, Arul. Then, on instruction from Jagindar, the land was transferred to Jet Age Construction Company, which was almost wholly owned by Jagindar. The property was then subdivided into 70 lots and sold to the public, so Tara couldn’t get the property back.

Held: The 1^st and 2^nd appellants never really intended to fulfill the conditions of the agreement and that they only wanted the respondent to sign the transfer form as they wanted the property. The 3^rd appellant colluded with the other appellants to get possession of the property. Datuk Jagindar was the one who wanted the property, while Suppiah and Arul were merely acting for Jagindar, since Jagindar was the one who instructed them.

(2) fraud against the holder of an unregistered interest.

Loke Yew v Port Swettenham Rubber Co Ltd

In this case, Eusope was the registered owner of 322 acres of land, and the appellant (Loke Yew) was in possession of 58 acres of it under unregistered Malay documents, making him the owner subject to payment of rent. The respondents, who knew about the appellant’s interest bought from Eusope the 322 acres excepting the said 58 acres. However, a transfer for the whole of the 322 acres were prepared, and the respondents induced Eusope to sign it by saying that they would purchase the appellant’s interest and this was reduced into writing. After obtaining the entire 322 acres, the respondents ordered the appellant to give up possession of the 58 acres.

Held: The Privy Council found for Loke Yew and that the respondents acquired title through fraud. The respondents had more than mere knowledge of Loke Yew’s unregistered interest. The assurances it made to Eusope had been made to induce Eusope to execute the transfer of the land and amounted to a deliberate plan to deprive Loke Yew of his interest. 

Misrepresentation: s.340(2)(a)

Contracts Act 1950 – fraudulent, negligent, innocent

1. Loke Yew v Port Swettenham Rubber Co Ltd

2. Datuk Jagindar Singh & Ors v Tara Rajaratnam – fraudulent misrepresentation

                                                                     

Forgery: s.340(2)(b)

Where registration is obtained by forgery, the registered title or interest of that person or body who is a party to the forgery may be defeasible by reason of fraud under s.340(2)(a) or forgery under s.340(2)(b). It would appear to apply even where that person or body is a purchaser in good faith and for value.

Paragraph (b) is easier to prove and also on a lower burden of proof. It is much more difficult to prove fraud.

1. Boonsom Boonyanit v Adorna Properties Sdn Bhd (HC)

Facts: The issue was over the sale of two lots of land in Penang belonging to Boonsom Boonyanit. The defendant, Adorna, wanted to purchase those lots from her. The defendant’s solicitors obtained the vendor’s name from a land search, and her passport number from the solicitors. The vendor’s solicitors had also prepared a statutory declaration to correct the name of the title from Sun Yok Eng @ Boonsom Boonyanit to Mrs. Boonsoom Boonyanit. The transfer was registered in favour of the defendant. Later, the plaintiff, Mrs. Boonsom claimed that she was the true owner of the properties and had never sold them to the defendant. The plaintiff claimed that the title acquired by the defendant was defeasible due to forgery.

Held: (i) The standard of proof in proving fraud is beyond reasonable doubt and not on a balance of probabilities.

(ii) Even if the plaintiff had proved forgery, the defendant had acquired an indefeasible title as a purchaser in good faith for value under the proviso to s.340(3).

2. Boonsom Boonyanit v Adorna Properties Sdn Bhd (COA)

(i) The standard of proof to be applied in civil forgery suits is on the balance of probabilities.

(ii) The words any purchaser in s.340 of the code refers to a subsequent purchaser, not an immediate purchaser. Therefore, deferred indefeasibility is practised and not immediate indefeasibility.

3. Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng (FC)

(i) Agreed that the standard of proof is on the balance of probabilities

(ii) Reversed the COA decision and held that by virtue of the proviso to s.340(3), any purchaser in good faith for valuable consideration obtains an immediate indefeasible title to the land. Even if there was forgery, the respondent still obtained an indefeasible title to the land.

4. Tan Ying Hong v Tan Sian San (FC) [2010]

The appellant was the registered owner of a land which was charged to UMBC, the 3^rd respondent, to secure loans made in favour of the 2^nd respondent. The 1^st respondent who acted under a power of attorney had executed the charges in favour of the 3^rd respondent bank. The appellant claimed that he did not sign the power of attorney, that it was forged and that the charge was void.

Held: The charges registered in favour of the 3^rd respondent were liable to be set aside under s.340(2)(b) on the ground of void instruments. Since the 3^rd respondent was an immediate holder of the charges, it could not rely on the proviso to s.340(3).

Principle: This case has overruled the decision in Adorna Properties and held that deferred indefeasibility is practised, and not immediate indefeasibility.

Forgery v Fraud

The very fact of forgery suffices by itself in making a registered title defeasible irrespective of the absence of knowledge or implication on the part of the proprietor. ... it affects immediate proprietor even if he be an innocent purchaser for value: Chiew Lip Seng v Perwira Habib Bank (M) Bhd.

The forgery does not need to relate to the party whose title is to be defeated. An instrument which is forged is void: OCBC Bank (M) Bhd v Pendaftar Hakmilik Negeri Johor Darul Takzim

Burden of proof of forgery is on balance of probabilities: EON Bank Bhd v Hotel Flamingo and Another Case and not beyond reasonable doubt (HC in Boonsom Boonyanit case). FC and CA – on balance of probabilities.

How to prevent forgery?

Take all necessary precautions to ensure that the person who appeared before the lawyer is who he said he is.

Forgery and transfer to a bona fide purchaser for value

Boonsom Boonyanit – allowed the transfer to stand in the case of bona fide purchaser for value

cf

Tan Ying Hong v Tan Sian San & Ors

In this case, the registered proprietor had never paid for the land although the land was alienated by the State.

1. Aik Ming (M) Sdn Bhd v Chang Ching Chuen  

2. Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen 

How does Capacity, Intention and Revocation Affect Wills?

Capacity

1. Age – s.4 of Wills act – no will made by any person below the age of majority (18) is valid.

Issue: whether there should be a maximum age. One possible argument is to require persons of a certain age to acquire a doctor’s certificate. However, if done so, another issue is whether a will made without such certificate is valid?

2. Mental competence

- s.3 of Wills Act – every person of sound mind

- Banks v Goodfellow (Cockburn CJ) – testator must have a sound and disposing mind and memory.

i) Nature of business

Testator must be aware that he is engaged in a testamentary act, i.e. expressing his wishes regarding the disposition of property that takes effect upon death.

ii) Recollection of the property

Testator must have a general awareness of the property he wishes to dispose of and not every item.

Waters v Waters – testator doesn’t need to know every atom of his property, as long as he knows generally the state of his property and what it consists of. How much he ought to know depends on how much he has.

iii) Objects of his bounty

Testator must be aware of the existence of potential beneficiaries.

Harwood v Baker – testator executed a will few days prior to his death in which he left all of his property to the wife and excluded some relatives. Will was invalid. Testator was too ill to give sufficient consideration to the potential claims of his relatives. Question was whether the testator was capable of recollecting who were his potential beneficiaries and intelligently excluded them.

iv) Manner of distribution

Testator must be able to recollect the manner in which the property is to be distributed between the objects of his bounty.

Boughton v Knight – testator must have an understanding to comprehend his relationship with the objects of his bounty and their claim upon him.

- Two types of lack of mental capacity: (i) persons born with limited mental capacity, (ii) mental impairment

1.Wood v Smith

Testator was 82, made a will 2 days before death. Court held that there was insufficient evidence that the testator was able to comprehend the extent of his property or the nature of the claims of those he was excluding.

  

2. Brown v Pourau

Testatrix was occasionally subject to trances in which she talked to spirits and fairies because she believed that a Maori curse was placed on her. Will was still valid.

3. In the Estate of Park

Testator was 78 and had suffered 2 strokes. He was previously a successful businessman but became forgetful and confused. He married a cashier he hardly knew. They were married and the testator executed a new will. The will was invalid on grounds of lack of mental capacity.

Capriciousness

- Even if a will is eccentric, it can still be valid if it’s Banks v Goodfellow competent.

1. Boughton v Knight

The law doesn’t prevent a man from making a will that is moved by capricious, frivolous, mean or bad motives

2. Bird v Luckie

A man is not bound to make a will that deserves approbation from the prudent, wise or the good. Some wills may seem capricious but if the testator is brought back to life, he would be able to explain why the will was made that way.

3. William Shakespeare left his wife his ‘second best bed’.

4. Henry, the Earl of Stafford, described his wife as the worst of women and guilty of all crimes. He left her five and forty brass halfpence which will buy a pullet for her supper.

Delusions

- It is an irrational belief which cannot be eradicated by a rational argument. Only delusions that influence the testator in making his will may render the will invalid.

1. Dew v Clark

Testator gave his only child a small gift out of his large estate. He treated her with great cruelty in her youth and described her as a fiend, a monster, Satan’s special property and a very devil. However, evidence showed that she was of exemplary character. Will was invalid.

2. Boughton v Knight

Testator left bulk of his estate to strangers. Will was invalid due to the testator’s insane dislike for the son.

3. Waring v Waring

Testatrix suffered various delusions including one where the PM used to visit her house, disguised as a fish peddler, to have an improper connection with her.

4. Smee v Smee

Testator believed he was the son of King George the IV and that his father prevented him from benefiting a trust fund which was diverted to favour his brothers. The will totally excluded his brothers. Court held that the will was invalid.

5. Re Nightingale

Testator was dying from cancer. He cut out his adopted son who was the main beneficiary under his first will, from his second will. Court held that the testator probably thought that the son was trying to murder him because the son had gently pushed him back onto the bed when he tried getting up.

6. Banks v Goodfellow

Testator left most of the estate to his niece. She had cared for him and stayed with him. He was once in a lunatic asylum. He was still suffering from 2 delusions, i.e. he was being pursued by devils and evil spirits and that a dead man pursued and molested him. He was however capable of managing his affairs. Will was valid.

When must the testator have mental capacity?

- Must be mentally competent when the will is executed. Lack of competency before or after execution of will is not fatal.

1. In the Estate of Walker

Testator was declared a lunatic. She suffered delusions which made her violent. She however took interest in general topics, was a clever woman with excellent memory and etc. Her will made in the presence of 3 doctors certifying she was mentally competent was valid.

2. Chambers and Yatman v Queen’s Proctor

A barrister was alleged to have strange and eccentric habits. He suffered from delusions including that he was an object of scorn to his friends and the world. He made a will, committed suicide and the will was still valid.

3. Parker v Felgate

If a mentally competent testator gives instructions to a solicitor to make his will, then loses mental competence before the will is executed, the will may still be valid.

4. Battan Singh v Amirchand

Instructions given to lay intermediaries to be passed to solicitors were held to be invalid.

Burden of proof

1. Barry v Butlin

The burden of proof in proving mental capacity lies on the party propounding the will. If the will is rational on its face, the presumption is that the testator had mental capacity. The burden shifts to the party opposing the will to rebut such presumption by evidence to the contrary. If successfully rebutted, the burden shifts back to the propounder.

2. Symes v Green

Testator made a will which his nephew challenged. The will was rational and properly executed, so the testator was presumed to be mentally competent. Evidence however showed that he was suffering from insanity when he made the will. The burden shifted back to the propounder who failed to prove that the testator had mental competence.

- If the will is irrational on the face, the presumption is that the testator lacked mental capacity.

1. Austen v Graham

The testator left a small gift to his brother and the rest to the Turkish Ambassador to benefit the poor in Constantinople and to erect a cenotaph with the testator’s description. Court found it absurd since the testator was an English native and a Christian. However, evidence showed that the testator had in his early life adopted the mode of living of a Mohamedan. Will was valid.

- There is a presumption that if the testator has been mentally competent prior to the will, he is also mentally competent during the execution.

- If the testator is known to be insane before execution, presumption is that the testator was still insane at the execution.

1. Cartwright v Cartwright

Testator’s will was rational on its face. Presumption was that she was mentally competent but evidence showed that she was insane 6 months before the will’s execution. The will was still upheld because of evidence that the testatrix understood the state of her affairs and to give what was proper in the way she has done.

Effect of mental incompetence

The will fails if the testator lacks mental incompetence. However, if the incapacity only affected 1 part of the will, the rest may still be valid.

1. Re Bohrmann

Testator was a psychopath. He however had exceptional acumen in managing his private affairs. He made substantial gifts to English Charities. However, he added a codicil to revoke gifts made to English Charities in favour of American Charities because he suffered a delusion that he was being persecuted by the London County Council. The judge upheld the will with the omission of the revoking clause.

- It is always recommended to arrange for the testator to be examined by a medical practitioner.

1. Kenward v Adams

If the testator is old and infirm, the making of his will should be witnessed and approved by a medical practitioner.

- There is no presumption that a person who is addicted to alcohol lacks testamentary capacity unless evidence can show that the testator was severely drunk when he made the will.

1. In the Estate of Heinke

Testator revoked a substantial gift to his housekeeper of 16 years, during a bout of heavy drinking. Codicil was held invalid on the ground that the deceased had not been of sound mind, memory and understanding.

2. Chana v Chana

A will was upheld even though the testator was a heavy drinker. A will becomes invalid if it can be shown that the drunkenness prevented the testator from knowing the nature of his act.

Intention

- A testator must have animus testandi when he executes a will. If no intention, the will is invalid. The testator must know and approve of the contents of the will.

1. d’Eye v Avery

Testator suffered a stroke and was unable to communicate. He made a will with the help of a former dancing partner. Although he had capacity to make a will, he lacked knowledge and approval. Will was invalid.

- If a will is properly executed and if the testator had mental capacity, the presumption is that there is animus testandi.

1. Lister v Smith

If a paper appears to be the record of a testamentary act, but in reality it was the offspring of joke, not seriously intended as a disposition of property, it should not be a valid will.

2. Nichols v Nichols

Testator’s will was written ‘I leave all my property between my children…that they will worship God, and not black coats.’ Black coats referred to lawyers whom the deceased was one and whom he loved to ridicule. The document was executed where the deceased wanted to show how short a will could be. The deceased never again referred to the will and regarded himself as not having made a will. Court pronounced intestacy.

Wishes intended to take effect on death

- testator must make an expression of wishes, normally to dispose of his property upon his death.

1. Hodson v Barnes

The words ’17-1925. Mag, Everything I possess. – J.B.’ was held to not constitute a will.

2. In the Estate of Knibbs

A barman on a liner said to the head barman during a chat about his sister Iris that ‘If anything ever happens to me, Iris will get anything I have got’. Court held that those words were mere gossip spoken without animus testandi.

3. Re Stable

Deceased was a young soldier. His solicitor mistakenly told him he could not make a will. He told his fiancée that he would give everything to her if anything happened to him. Court held that the will was valid as the statement was made with animus testandi.

Conditional Wills

- Testator may make wills which are conditional on the occurrence of some specified event. If condition is not fulfilled, there is no animus testandi.

                                             

 1. In the Goods of Hugo,

A married couple executed a joint will before a journey which had a condition that it is effective if they died together by the same accident. They survived the journey. The joint will was invalid.

2. In the Goods of Spratt

Testator was a soldier serving in New Zealand. He wrote to his sister saying that if the war continued and if he dies in an accident, his money goes to his sister. The testator died years after the war ended. Will was valid because it was not conditional. A will is unconditional if the testator says that he is led to making the will due to the uncertainty of life.

Knowledge and Approval

- The testator must know and approve of the contents of the will.

1. Cleare v Cleare

The testator must know and approve of the contents of the will. Lack of knowledge and approval renders a will invalid.

- The burden of proof is on the propounder of the will. If the will is duly executed and made by a testator with the mental capacity, the presumption would be that there was knowledge and approval. The burden then shifts to the person challenging the will to rebut the presumption. If evidence exists to rebut the presumption, the burden goes back to the propounder.

Suspicious circumstances

1. Tyrrell v Painton

If there are circumstances which excite the suspicion of the court, the propounder of the will has the burden to prove affirmatively that the testator knew and approved of the contents of the will. If successfully proven, the burden shifts to the party challenging the will to prove fraud, undue influence or mistake.

Wills prepared by beneficiary

1. Barry v Butlin

When a party prepares a will under which he benefits from it, it becomes a circumstance that excites the suspicion of the court. The Court will not uphold the will unless the suspicion is removed.

In this case, the testator gave nothing to his son. He gave a large amount to his Attorney. However, the suspicions were removed because, amongst others, the testator had been very friendly with the attorney and the will was executed openly in the presence of respectable witnesses.

2. Wintle v Nye

The solicitor made a will for the testatrix, Nye, which disposed of a substantial amount of property for the solicitor. The solicitor didn’t advise Nye to seek independent advice and the will was beyond the understanding of the testatrix. Court held that there was a heavy burden on the solicitor to prove knowledge and approval on behalf of Nye. Will was invalid.

3. Re Dabbs

Testator executed a will which was prepared for him on a computer by the claimant who was a major beneficiary under the will. The principle is that the greater the degree of suspicion, the greater will be the burden of dispelling that suspicion.

4. In Re A Solicitor

A solicitor was struck off the Roll for failing to advise 2 sisters-in-law to seek independent advice when they sought to make wills for the solicitor and his family.

Wills prepared by close relatives of a beneficiary

1. Tyrrell v Painton

Testatrix had made wills in favour of the defendant. However, she later made another will benefiting her cousin instead. The defendant’s son later visited her accompanied by his friend, a strange man. The testatrix made a new will though she was exhausted in favour of the defendant. It was written in the son’s handwriting and witnessed by the son and his friend. The will was invalid.

Principle: Even wills prepared by close relatives of a beneficiary can excite the suspicion of the court. Any well-grounded suspicion will suffice.

Mistake

- Not every mistake will affect knowledge and approval

i) Mistake as to whole will

1. Re Meyer

2 sisters attempted to make a codicil in favour of the other but mistakenly executed the other’s codicil. When the first of them died, it was held that the codicil is not valid as she had not intended to sign it. There was no animus testandi.

ii) Mistake as to legal effect

- A mistake as to the legal effect of the testator’s provision doesn’t affect the validity of the will.

1. Collins v Elstone

Testatrix left 2 wills and a codicil to the 1^st will. The 2^nd will contain a clause revoking all previous dispositions. She did not wish to revoke any earlier testamentary dispositions but the executor said that it wouldn’t. The advice was given mistakenly. Court held that since she knew of the clause, it revoked the earlier will.

iii) Mistake as to contents

-If any part was included by mistake without testator’s knowledge and approval, it can be omitted provided it doesn’t change the sense of the will.

1. In the Goods of Oswald

Testatrix executed a later will not realizing it contained a revocation clause. Court held that the revocation clause can be excluded.

 2. In the Goods of Boehm

Testator intended a bequest to be given to his daughters, Georgiana and Florence. The counsel who drafted the will mistakenly inserted Georgiana in both bequests. Court held that the name Georgiana could be omitted from the bequests intended for Florence.

3. Morrell v Morrell

Testator instructed that all his 400 shares in his company should pass to his nephews. Counsel drafted the gift as comprising forty shares. Courts held that the word could be omitted since the testator didn’t approve the inclusion of the word forty. All shares were passed to the nephew.

Fraud

- Testator is intentionally misled or deceived thus affecting the making of his will.

1. Allen v M’Pherson

The testator, having made large bequests to the appellant in his will, executed a final codicil containing a much smaller gift. It was alleged that this was the result of false representations made about the appellant’s character to the testator who was feeble in mind and boy. It was held that this is fraud.

2. Wilkinson v Joughin

Testator married a married woman. She deliberately concealed the fact from him. Testator described her as his wife in the will. The gift was void due to fraud. However, a gift to her daughter was valid since she was innocent.

3. Re Posner

Facts were similar but the testator was not deliberately misled since neither he nor his wife knew at the time of marriage that the wife was still married. Gift was upheld as there was no fraud.

Undue influence

- Coercion. Whether the influence asserted is coercion or persuasion?

1. Hall v Hall

In this case, the will failed because it was made for the sake of peace in consequence of the violence from the sole beneficiary, his wife.

Principle: If pressure of whatever character is exerted to overpower the volition of the testator in the making of his will, then it is considered as coercion.

2. Parfitt v Lawless

In this case, the priest served as the testatrix’s confessor. He received bulk of the testatrix’s estate under the will. There was no coercion.

Principle: i) No presumption of undue influence arises from the proof of a relationship

                ii) To prove undue influence, it is necessary to prove coercion, i.e. the testator’s                       volition was overborne.

  

a) No presumption

1. Craig v Lamoureux

Husband was the sole beneficiary under the ill wife’s will. He was instrumental in having her prepare a will. However, there was no evidence of coercion.

2. Mynn v Robinson

Wife made a new will departing from a previous will 9 days before her death in an extremely weak state. Presumption of undue influence arose and wasn’t rebutted. The husband had a record of deceptive behaviour. The presumption arose because of the circumstances surrounding the will’s execution.

b) Coercion

1. Wingrove v Wingrove

It is not sufficient to show that a person has the power to coerce the testator. It has to be shown that the power was indeed exercised. Coercion may be present even without actual violence. For instance, if a testator is so old that he is dependent and the caretaker threatens to leave him.

2. Betts v Doughty

Testatrix was 80 years old and attempted to alter her will to exclude the plaintiffs. The plaintiffs told her that if she executed a new will, she could not reside in their house. A solicitor’s clerk brought the new will for execution but was not allowed to see her. Courts upheld the earlier will but imposed a trust on the plaintiffs to hold their shares as trustees for the beneficiaries under the intended will.

3. Re Harden

Testatrix was dominated by a man who allegedly had occult powers as a medium. He passed messages from the other side as to how the testatrix should dispose of her estate. Wills were invalid due to undue influence.

Hampson v Guy – the weaker the testator, the easier to prove undue influence

Boyse v Rossborough – strong evidence of fraud or undue influence must be adduced since the allegations impart an element of moral condemnation.

Re Cutcliffe’s Estate – the party who made the pleas of undue influence would be penalized for costs if their pleas were unsuccessful.