Suspicious circumstances in the execution of a Will
Gavin Jay Anand Jayapal
Advocate & Solicitor l Principal of Gavin Jayapal l Don't hate, litigate
The CA has recently (20.01.2025) released its Grounds for Teoh Ying Rin v Savatery Jayaraman [2025] MLJU 169. Via this decision, the CA has considered suspicious circumstances in the context of a Will.
In this article, I will consider the CA’s findings and discuss certain key elements as to trial preparation (my personal view as to the dos and don’ts).
The background facts
The CA’s GOJ do not delve much into the facts. For this, one must turn to the HC’s Grounds (Savatery Jayaraman v Teoh Ying Rin [2024] 7 MLJ 163).
Mr Nantha Kumaran Saravanamuthu (“the Deceased”) suffered from terminal cancer. He left a Will dated 29.04.2019 (“the Will”). The Will named Ms Teoh Ying Rin (“Defendant”) as his sole executor and beneficiary. He passed away on 07.06.2019.
Less than 40 days separated the date of the Will and the date of his death.
At the time of his passing, Ms Savatery Jeyaraman (“Plaintiff”) was the Deceased’s wife. They had met at an orphanage and had grown up together. Their 36-year marriage produced no issues.
?On 25.06.2019, the Defendant turned up at the Plaintiff’s house and showed her the Will. The HC found as a fact that:?
[43]??The defendant is a stranger to the family. She is not related to either the testator or the plaintiff. She was a freelance accounts clerk in the Banting area. In 2008, the defendant did some accounts work for Asia Fertiliser on an ad-hoc basis. When the testator incorporated Advanced Fertilizer in 2010, the defendant joined the company as a full-time staff. Within five years of joining Advanced Fertilizer, the defendant climbed up the ranks of the company from accounts officer to director. In March 2015, the defendant was appointed as one of the directors of Advanced Fertilizer.
The Deceased died a wealthy man. In his Will, he left the bulk of his Estate to the Defendant. This included land, company shares, monies in the bank and his jewellery and religious books.
The Defendant also produced 2 letters dated 29.04.2019, affirming the contents of the Will. The Will and the letters were all prepared by the Defendant. There were 2 witnesses to the signing of the Will.
At trial, the HC found that undue influence had been exercised. The Court proceeded to set-aside the Will and to declare that the Deceased died intestate.
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On appeal
On appeal, the CA reversed the HC’s findings.
Much turned on 1 issue: Did the Plaintiff abandon her pleaded cause of action of undue influence?
The CA held that she had:
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[16]??In paragraph 26(b) of the respondent’s statement of claim, it was pleaded that the testator “lacked the physical and/or mental ability and overall testamentary capacity to instruct or execute any will or testamentary at any time during this period”. “This period” was in reference to between March 2019 and the day the testator passed away on 7.6.2019. At paragraph 32 of the same pleading, the respondent repeated that she would contend that the impugned will was “invalid, null and void as at the time it was allegedly made, the Deceased (the testator) had no testamentary capacity, by reason of his debilitating terminal illness with excruciating pain and physical disability, which substantially affected and impaired his mental stability, rendering him mentally disorientated”.
?[17]??Insofar as this part of the respondent’s averments and contentions are concerned, they are irrelevant in the trial because the respondent had abandoned them at the outset of the trial. The position taken by the respondent is confirmed in the respondent’s counsel’s submission-in- reply at paragraphs 5 and 6 which stated as follows:?
“5. …We informed the Court even during pre-Trial Case Management on 18 March 2022, that we accepted the Deceased had testamentary capacity and therefore, the handwriting expert report which Teoh (the appellant) sought to adduce could be admitted without calling the maker.
6. We highlighted that our case was not that the Deceased has no testamentary capacity but that there were suspicious circumstances in the making and execution of the Will which Teoh did not explain or dispel.”?
[18]??On this issue, we find that the appellant’s counsel was correct in his submission to state that the respondent had dropped her pleaded case of lack of testamentary capacity and had focused her case on suspicious circumstances.
?The CA went on to state that the Plaintiff had only framed her case as being one of suspicious circumstances:?
[19]??The respondent had relied on her alternative pleaded case. The respondent contended that there were circumstances attending and relevant to the preparation and execution of the impugned will which could give raise to suspicious circumstances and had led to the inference that the terms of the impugned will did not express the mind of the testator, and that the testator did not know nor approve the contents of the impugned will at the time of execution.
The CA listed 6 errors by the HC (paragraphs 26-47). However, the one that I believe most swayed the Judges would be the failure to challenge the 2 letters:
[32]?In the present case, the appellant adduced two important documents to substantiate the fact that the testator had the knowledge and had given his approval of the whole contents of the impugned will. As mentioned earlier, the two letters, one to the appellant and the other to the respondent, if considered as a whole vis-à-vis reading the impugned will together with the two letters, it could well establish that the testator was fully aware of the making of the impugned will as well as that he had full knowledge and approval of the entire contents of the impugned will. The learned High Court judge merely made mention of the two letters in her Grounds of Judgment. Her Ladyship did not make any finding the two letters were forged or that the contents of the two letters had been disproved. Therefore, the two letters stand as credible evidence before the trial court to support the testator’s knowledge and approval of the contents of the entire impugned will, not just paragraph 4 of the impugned will.?
[33]?In fact, the two letters, in the opinion of this Court, are sufficient evidence to dispel or remove any suspicious circumstances surrounding the making of the impugned will. The two letters, which were admitted as evidence and were not disproved, are the best evidence to show the testator had the knowledge and had given his approval of the contents of the impugned will. The two letters were dated the same date as the impugned will, therefore, that infers the testator executed them on the same day and that the testator was certain as to how he wanted to dispose his properties upon his demise.
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Analysis of the CA’s Decision and my personal observations
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I am of the view that the CA made the Judgment it did due to 3 factors:
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Maintain your pleaded case (don't abandon too soon and have a vision towards the CA)
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The CA made a finding that the Plaintiff had abandoned its pleaded position on undue influence. I believe that a perusal of the Grounds will show that certain statements made during Case Management (and the Plaintiff/Respondent's Submission in Reply) were utilised to substantiate this.
I am of the opinion that the Plaintiff would have been better-served if she had insisted on maintaining her pleaded case (suspicious circumstances surrounding the Will + undue influence). In this way, she would have had 2 rungs on which to challenge the Will.
By abandoning the pleaded claim of undue influence, the Plaintiff was hamstrung at the Court of Appeal. She was limited to solely going on suspicious circumstances, which bring us to the 2 letters.
The 2 letters and dispelling suspicious circumstances
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The 2 letters relied-upon by the Defendant ought to have been placed in Part C and challenged extensively. The burden would then have been on the Defendant to show that these letters even existed.
When this is coupled with the undue influence exercised by the Defendant, one can see how the same would go hand-in-hand to demolish the purported letters.
Produce all documents and if they are unavailable, go for discovery
As a final consideration: the failure to produce the 2 Wills of the Deceased.
This Plaintiff may have been assisted by filing an application for discovery. If the Defendant still refused and/or failed to produce the 2 Wills, an application may have been made to strike the Defence and to enter Judgment for the Plaintiff.
Of course, this is all available with the benefit of hindsight. One cannot second-guess the outcome and play armchair critic unless one is in the heat of battle (and subject to the instructions of one’s client). The crucible of trial must leave one victor and one vanquished.
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Conclusion
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In concluding, the CA has greatly-added to the jurisprudence of the constituent aspects of suspicious circumstances. From the reading of the CA’s Grounds, it is apparent that one must be terrifyingly tight when it comes to trial prep and the taking of one’s pleadings.
Whilst abandoning a pleaded cause of action may seem reasonable (at the time), the long-sightedness to foresee appellate proceedings must be considered by every practitioner.
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GAVIN JAYAPAL
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