Case Review
CASE: THO YOW PEW & ANOR V CHUA KOOI HEAN
MATERIAL FACT:
The plaintiffs in this case were the elder and younger brother of Dr. Tho Yow Cheong (the deceased) who died testate on 5 December 1996. They were the executors and trustees of the will executed by the deceased which dated on 20 October 1995. On 16 June 1997, the plaintiffs applied to the High Court of Kuala Lumpur by way of petition for a grant of probate of the said will. The defendant who was the wife of the deceased however then entered a caveat with the Registry on 10 July 1997 in order to prevent the grant of probate to the plaintiffs without the defendant being given notice. On 21 October 1997, the plaintiffs commenced this probate action against the defendant praying to the court to decree probate of the said will in solemn form of law. The defendant then counterclaim seeking a declaration that the said will is null and void and prayed that she be grated letters of administration to the estate of the said deceased.
ISSUES:
1. Whether deceased had requisite testamentary capacity to execute will 2. Whether suspicion satisfactory discharged by the party propounding the will 3. Whether the will valid 4. Whether probate should be granted
HELD:
Plaintiffs claim dismissed with cost and defendant’s counterclaim allowed with cost
REASON FOR JUDGMENT: 1. The burden of proving the deceased had the requisite testamentary capacity laid with the parties propounding the will, which were the plaintiffs in this instance. 2. The deceased suffered from nose cancer and was heavily dependent on a steroid drug called “dexamethasone” to obtain relief from its resultant pains and discomfort. “Dexamethasone” used long term can give rise to several physical and psychiatric side effects. There is also doubt that the deceased who experienced weakness of his limbs and muscles with reduced motor function could have typed the will in question. 3. The plaintiffs did not impress as having done
MATERIAL FACT:
The plaintiffs in this case were the elder and younger brother of Dr. Tho Yow Cheong (the deceased) who died testate on 5 December 1996. They were the executors and trustees of the will executed by the deceased which dated on 20 October 1995. On 16 June 1997, the plaintiffs applied to the High Court of Kuala Lumpur by way of petition for a grant of probate of the said will. The defendant who was the wife of the deceased however then entered a caveat with the Registry on 10 July 1997 in order to prevent the grant of probate to the plaintiffs without the defendant being given notice. On 21 October 1997, the plaintiffs commenced this probate action against the defendant praying to the court to decree probate of the said will in solemn form of law. The defendant then counterclaim seeking a declaration that the said will is null and void and prayed that she be grated letters of administration to the estate of the said deceased.
ISSUES:
1. Whether deceased had requisite testamentary capacity to execute will 2. Whether suspicion satisfactory discharged by the party propounding the will 3. Whether the will valid 4. Whether probate should be granted
HELD:
Plaintiffs claim dismissed with cost and defendant’s counterclaim allowed with cost
REASON FOR JUDGMENT: 1. The burden of proving the deceased had the requisite testamentary capacity laid with the parties propounding the will, which were the plaintiffs in this instance. 2. The deceased suffered from nose cancer and was heavily dependent on a steroid drug called “dexamethasone” to obtain relief from its resultant pains and discomfort. “Dexamethasone” used long term can give rise to several physical and psychiatric side effects. There is also doubt that the deceased who experienced weakness of his limbs and muscles with reduced motor function could have typed the will in question. 3. The plaintiffs did not impress as having done