karn woon lin - memorandum of appeal

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO: P-02-1155-2010

ANTARA

1. KARN WOON LIN2. LIM CHIN HOCK … PERAYU-PERAYU

DAN

CHEAH CHOR BOK … RESPONDEN

[DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANGGUAMAN SIVIL NO. 22-730-1999 (M.T.4)

ANTARA

1. KARN WOON LIN2. LIM CHIN HOCK .. PLAINTIF-PLAINTIF

DAN

CHEAH CHOR BOK .. DEFENDAN

Yang diputuskan oleh Yang Arif Hakim Dato’ Balia Yusof bin Hj Wahi di Mahkamah Tinggi Malaya di Pulau Pinang yang keputusannya dibacakan di Mahkamah Tinggi Malaya di Kuala Lumpur pada 13 haribulan April 2010]

MEMORANDUM OF APPEAL

The Appellants abovenamed appeal to the Court of Appeal

against the whole decision of The Honourable Justice

Dato’ Balia Yusof bin Hj. Wahi given on the 13th day of

April 2010 on the following grounds:

1. The Learned Judge erred in law and in fact in

dismissing the Appellants’ claim and in allowing the

Respondent’s counter-claim.


holding that on the totality of the evidence of the

Respondent (DW1), DW4 and DW5, the Respondent as

the propounder of the will, had discharged the

burden of proving the deceased’s testamentary

capacity and that there was nothing inherently

improbable in the evidence of the said witnesses.

Based on the evidence adduced, such as documentary

evidence in the form of medical reports, MRI report

and nursing notes, the Learned Judge ought to have

held that the Respondent had failed to discharge the

burden of proving testamentary capacity. The oral

evidence given by DW2 and DW3 shows that the

deceased lacked testamentary capacity on the day the

2nd Will is said to have been thumb-printed:

a. The nursing notes from 9.4.99 to 15.4.99 from

Gleneagles show that the deceased was confused,

had loss of memory, could not remember what she

had done in the morning, had slurred speech,

dysphasia and had open eyes most of the time,

unable to help herself during breakfast, could

2

not answer questions correctly, had difficulty

in speaking and her language was incoherent.

b. The medical report from DW3 done 3 days after

the deceased had been discharged from

Gleneagles on 15.4.99 and admission into Island

Hospital on 19.4.99, showed that the deceased

suffered from brain cancer. On 19.4.99 the

deceased was disorientated as to time, place

and people.

c. The evidence above confirms that the symptoms

suffered by the deceased had been prevalent

since even before early April 1999 and that the

said symptoms could not have appeared suddenly

on 19.4.99. Her condition had degenerated

progressively and brain cancer had caused her

death.

d. If the deceased had understood the contents of

the alleged 2nd Will, she would have signed the

same and not thumb-printed it as she had been

signing her documents.

The Learned Judge failed to appreciate that the

matters stated above show that the deceased had no

3

testamentary capacity and even if she had

testamentary capacity she had no clear understanding

and could have been easily influenced in view of her

feeble condition.

3. The Learned Judge erred in law and in fact in not

holding that the Respondent had failed to satisfy

the formal requirements relating to the 2nd Will.

The Respondent, as the propounder of the 2nd Will,

failed to call the only other independent witness to

the 2nd Will, that is the clerk of the lawyer who had

prepared the 2nd Will. The lawyer who had prepared

the 2nd Will did not attest the thumb-print of the

deceased on the said will thus raising reasonable

suspicion that he was not convinced about the

testamentary capacity of the deceased. The alleged

will states that the deceased ‘signed’ the alleged

Will in the presence of 2 Witnesses when in fact it

had not been signed but thumb-printed by the

deceased.

4. The Learned Judge erred in law and in fact in giving

undue weight to the bare and unproven allegations of

the Respondent and DW4 that the deceased had felt

betrayed and cheated by the 1st Appellant and was

angry with the 1st Appellant and this had prompted

4

the deceased to change her will when such

allegations had been rebutted by documentary and

oral evidence of the Appellants. As confirmed by

the Respondent, none of the said allegations had

been made by the deceased in the presence of the 1st

Appellant. The Respondent, DW4 and Annamalai had

concocted a story to say that the 1st Appellant had

stolen the deceased’s money so as to to justify the

creation of the alleged will. The Respondent had

lodged a police report against the 1st Appellant but

had requested the police not to take action on it.

The Respondent had confirmed that the said police

report had been drafted by Annamalai and it had been

lodged without any instruction from the deceased.

The Respondent also confirmed that he had refused to

give a statement to the police in relation to the

said report.


undue weight to the evidence of the Respondent

(DW1), DW4 and DW5 and in holding that from their

evidence the deceased was shown to be aware of what

she was doing and knew exactly the nature of her

acts and that he had no sufficient reason for

disbelieving and rejecting their evidence when in

fact the evidence of the said witnesses had been

5

contradicted in material particulars and had been

shown, through cross examination, to be unreliable

and not worthy of credit.


placing undue reliance on the evidence of the

Respondent (DW1) in the light of, inter alia, the

following:

a. The Respondent (DW1), having come into the

scene after a lapse of 20 years, had caused the

creation of the alleged will; withdrew monies

of the deceased from the banks/financial

institutions; transferred the deceased’s monies

into his own name; transferred shares of the

deceased and sold shares from more that 28

counters; opened safe deposit boxes of the

deceased and closed accounts of the deceased;

taken all the deceased’s monies and

jewelleries; caused a Power of Attorney to be

given to him by the deceased; withdrew the

deceased’s pension and sold her car and made

insurance claims on policies under the

deceased’s name. The above actions/conduct

show that he was interested only in

dissipating/pilfering the assets of the

6

deceased. He refused to allow the deceased to

undergo a biopsy test saying that it was too

expensive when in fact the deceased had more

than sufficient money for her medical

treatment.

b. The Respondent gave different and mutually

contradictory versions/evidence relating to the

preparation of the alleged 2nd Will. He said

that Mr. Annamalai prepared the alleged Will;

that the deceased gave him instructions to

prepare the alleged will at her house in

Moulmein Road and that the instructions were

given 2 days earlier. Subsequently, he said

that he could not remember where the deceased

gave the instructions; that he was present when

the instructions were given; it took a few

hours for the deceased to give her instructions

and during these few hours she could speak very

clearly. He also said that the alleged Will

was brought to the house on 15.4.99 by

Annamalai. He changed his version and said

that he went to see Annamalai on 15.4.99 to

give instructions to Annamalai when the

deceased was in Gleneagles Hospital. He also

said that he and DW4 were present in

7

Annamalai’s office to give instructions to

prepare the alleged Will and that they just

told Annamalai what had happened and he

(Annamalai) just decided. It was also his

version that Annamalai met the deceased on

16.4.99 with a prepared will. The Respondent

said that the deceased was in a position to

speak clearly and coherently to Annamalai when

the medical evidence shows that she had

difficulty in expressing herself.

c. The Respondent had lodged a police report

against the 1st Appellant without any

instructions from the deceased and based on the

report as drafted by Annamalai and that he had

refused to give a statement to the police in

relation to the said report.


failing to reject the evidence of DW4 as being

unreliable based on the fact, inter alia, that she

was an interested witness and not an independent

witness. She had been instrumental in bringing

the Respondent into the picture after estrangement

with the deceased for 20 years. DW4 and the

Respondent had conspired to defraud the deceased

8

from the time of her admission into Gleneagles until

her death. She (DW4) had lent her active assistance

to the Respondent in dissipating the estate of the

deceased and had benefited from the wrongful acts.

The modus operandi of the Respondent and DW4 with

the assistance of Annamalai was to procure the

thumb-print of the deceased on documents in order to

dissipate the deceased’s assets while the deceased

was mentally incompetent. Although she said that

the deceased thumb-printed the alleged 2nd Will, she

was not sure whether she thumb-printed it on her own

accord or assisted by someone else. All events

about thumb-printing on different occasions are

properly described in her diary but not the thumb-

printing on the alleged Will. She was a witness to

the alleged will and testified that the deceased

could speak well and coherently for hours to

Annamalai when the nursing notes do not support such

an incredulous assertion as the notes show that the

deceased suffered from dysphasia and could not have

spoken properly or coherently.


attaching undue weight and relying on the contents

of the diary of DW4 when the same has been shown to

be not contemporaneous, unreliable, conflicting and

9

inherently improbable. DW4 admitted in cross-

examination that her diary had been prepared in

anticipation and for the purpose of the court case.

The diary entries show that many statements had been

added on subsequently in red as an afterthought.


failing to hold that the alleged 2nd Will cannot be

admitted to probate in the light of the existence

various suspicious circumstances. The Learned Judge

ought to have held that the Respondent had failed to

dispel the said suspicious circumstances raised and

established by the Appellants and that they were

relevant in determining the validity of the 2nd Will:

a. Instructions for the preparation of the alleged

Will was not given by the deceased. The

Respondent and DW4, a witness to the alleged

will, had acted in collusion with Annamalai.

Annamalai had come with a prepared will and

according to the Respondent, everything had

been left to Annamalai to prepare. If the

deceased had been able to give instructions she

would have done so directly to Annamalai. The

fact that instructions had been given by him

has been confirmed by the Respondent himself.

10

b. Annamalai, who had come to see the deceased

with a ready will or prepared will, did not

deem it fit to be a witness to the alleged will

when he had witnessed the thumb-printing of the

PA given by the deceased in favour of the

Respondent on the same day.

c. There is sufficient evidence of collusion

between Annamalai (the lawyer who purportedly

prepared the alleged will but did not deem fit

to attest it), the Respondent who took the

whole benefit under the alleged 2nd Will and

DW4, a witness to the alleged will, to defraud

the deceased’s estate.

d. The instructions for the preparation of the

alleged will had been given to Annamalai by the

Respondent and DW4 and not by the deceased.

The Respondent is the sole beneficiary under

the alleged will for which he and DW4 had given

the instructions to Annamalai.

e. The Respondent, DW4 and Annamalai had allowed

the deceased to thumb-print the alleged 2nd Will

without any attempt to allow her to sign it.

11

This had been done at a time when the deceased

was in a weak condition as shown by medical

evidence. There is evidence of undue influence

by the Respondent and DW4 at a time when the

deceased was in a feeble condition and could be

easily influenced.

f. Annamalai had drafted the police report lodged

by the Respondent. This had been done without

the instructions of the deceased but with the

collusion/assistance of DW4 with the sole aim

of blemishing the 1st Appellant as a criminal

and in order to justify the creation of the

alleged will.

10. The Learned Judge erred in law and in fact in not

holding that the Respondent and DW4 had committed

fraud and had colluded and conspired with the

lawyer who had prepared the 2nd Will and that the

Respondent together with DW4 were instrumental in

creating the alleged will and were the actual

writers of the said alleged Will and that the

contents of the alleged Will could not have been

known or approved by the deceased under the medical

condition she was in at that material time.

12


undue weight to the evidence of DW5 whom he

considered as independent and disinterested party

when the contrary was the case and in holding that

her evidence spoke a lot about the mental faculty of

the deceased on 15.4.1999, just a day before the

making of the will when the medical evidence did not

support such a conclusion. The Learned Judge ought

to have held that DW5 was not a reliable witness in

the light of the answers elicited from her in cross-

examination:

a. DW5 is not an independent witness because she

had taken DW4 and the deceased to other banks

to help them close the account but had been

unsuccessful as confirmed in the diary entries

of DW4. She had allowed unauthorized closing

of the joint account and had allowed the

Respondent and DW4 to open the safe deposit box

when the deceased was mentally incompetent as

confirmed by the medical report of DW3. The

extent to which she had gone to assist the

Respondent in closing joint accounts and taking

out the deceased’s monies show that she cannot

be considered as an independent witness.

13

b. In her Witness Statement, she said that the

condition of the deceased on 15.4.99 was the

same as on 19.4.99 and that she was alert and

spoke well. However, medical evidence from

Island Hospital shows that by 19.4.99 the

deceased was mentally incompetent and

disorientated as to time, place and people.

c. DW5 had refused to reply to the letter from the

Appellants’ solicitors making enquiries about

the closing of joint account but on the other

hand she had co-operated fully with the

Respondent and DW4 to the extent of exceeding

her duty as a bank manager. She produced ID35

without the original although she claimed that

the original was with the bank. The date on

ID35 has been shown to be superimposed with a

different ink and the identity card number is

also different thus showing that the said

document had been fabricated as it was produced

10 years after the case had commenced.


holding that the evidence of DW5 had been affirmed

by the Respondent and DW4 and that as to the most

material date of 16.4.1999, their evidence left him

14

in no doubt as to the ability and understanding of

the deceased in making the will. The Learned Judge

failed to appreciate the fact that the medical

evidence relating to the deceased’s condition prove

otherwise.


holding that the deceased was in her own self and

had the faculty of understanding and to appreciate

the whole circumstances and situation she was in

and in holding that confusion was not an incapacity.

This is contrary to the medical evidence which show

that the deceased was suffering from cancer of the

brain and that she was in a confused state even

before being discharged from Gleneagles and

disorientated as to time, place and people when

first examined by DW3 on 19.4.99.


holding that DW3’s evidence is not of much value in

so far as proof the deceased’s mental capacity to

make the will is concerned and in holding that in

this case the medical evidence does not show that

the deceased lacked testamentary capacity when in

fact the documentary and oral evidence show the

contrary.

15


considering that there could have been a lucid

interval when no direct evidence has been adduced by

the Respondent in that regard because none of the

medical doctors (DW3 and DW3) were present at the

time of the execution of the alleged 2nd Will on

16.4.99 to testify conclusively as to the occurrence

of a lucid interval.


failing to draw adverse inference under section

114(g) of the Evidence Act against the Respondent

for failing to call Annamalai’s clerk, the only

other independent witness, who could have shed light

on what had really happened as DW4 has been proven

to be an interested witness, had colluded and

conspired with the Respondent and Annamalai and had

fabricated evidence through her diary entries.


failing to give sufficient weight to the testimony

of the 1st Appellant which was not challenged by the

Respondent in many material particulars; in

accepting the erroneous statements and evidence of

the Respondent without critically analyzing the

same; in arriving at unjustified conclusions and

16

erroneous inferences and failing to take into

consideration the Submissions of the Appellants.


failing to give due weight to the medical records

and the evidence of DW2 and DW3 in relation to the

probable mental state of the deceased at the time

of the making of the 2nd Will in the light of the

unavailability of any direct evidence relating to

the testamentary capacity of the deceased at that

material time.


accepting the evidence of DW1, DW4 and DW5 despite

the overwhelming evidence adduced during the trial

in respect of, inter alia,

a. the clear contradictions and inconsistencies in

their evidence in relation to, inter alia, the

deceased’s condition, her bank accounts and the

contents of the safe deposit box.

b. the involvement of the Respondent and DW4 in

the whole scheme to defraud the deceased and/or

to take and/or dissipate the assets of the

deceased during the time when the deceased was

17

helpless due to her weak mental and physical

condition as a result of brain cancer. The

Respondent had said that the deceased’s

condition on 19.4.99 was the same as on 16.4.99

but this is not supported at all by medical

evidence.

c. the collusion/conspiracy of the Respondent and

DW4 with Annamalai to put the 1st Appellant in

bad light by way of misrepresentation to the

deceased about the 1st Appellant and by lodging

a police report against the 1st Appellant

without the instruction of the deceased.

d. collusion/conspiracy of the Respondent and DW4

with Annamalai to create the 2nd Will within 4

days after the Respondent had come into the

picture, whereby the Respondent was made the

sole beneficiary of the deceased’s estate.

e. in creating the impression that the Respondent

and the deceased were actually in contact and

were not estranged and used to bump into each

other during Chinese New Year when in fact they

actually met for the first time only on 12.4.99

after being estranged for 20 years.

18


allowing the counter claim of the Respondent which

contained a prayer that the Appellants are to

account to the Respondent. The Respondent could not

rebut the evidence of the 1st Appellant that she took

only what belonged to her and had not taken any

money or property belonging to the deceased. On the

other hand, clear and irrebuttable documentary

evidence had been adduced by the Appellants in

respect of the properties of the deceased taken by

the Respondent and DW4 in the form of money in the

accounts of the deceased; contents of safe deposit

boxes; jewellery; pension; vehicle and insurance

claims on policies under the deceased’s name.


accepting uncritically the bare statements of the

Respondent and DW4 (a witness who had been proven to

be not independent, unreliable and also as an

interested witness) that the deceased had expressed

her intention of leaving everything to the

Respondent. The Learned Judge ought to have held

that in the light of the fact that the Respondent

and DW4 had organized the whole scheme in causing

the 2nd Will to be created, the 2nd Will expresses

their intention instead of the intention of the

19

deceased and further that they (the Respondent and

DW4) are the actual writers of the 2nd Will as it is

they, on their own admission, and not the deceased,

who appointed Annamalai and gave instructions to

Annamalai for making of the 2nd Will. DW4, although

not named as a beneficiary under the 2nd Will, was in

fact a beneficiary of the whole scheme because she

had put her name as the nominee for the death

benefits due to the deceased under NUTP, she took

the deceased’s jewellery and also got some ang pows

as stated in her diary.

22. The Learned Judge erred in law and in fact in ruling

that the 2nd Will is a valid will and should be

admitted to probate when the other independent

witness to the 2nd Will had not been called to give

evidence and no explanation had been tendered for

failing to call the said witness and when DW4, a

witness to the alleged 2nd Will claimed that the

deceased thumb-printed the 2nd Will but was not sure

whether the deceased thumb-printed the said Will on

her own accord or assisted by someone. There is

non-compliance with the formal requirements for the

making of a will.

20


looking at the 2nd Will in isolation and in failing

to see that the collusion/conspiracy between the

Respondent, DW4 and Annamalai forms a part of bigger

scheme, in that:

a. Annamalai was not an independent legal adviser

in respect of the alleged 2nd Will because he

had been appointed by the Respondent and DW4,

had acted in accordance with the wishes of the

Defendant and DW4 and he had been paid by them.

He was thus an interested party.

b. Annamalai drew up the 2nd Will based on the

instructions of the Respondent and DW4, caused

it to be thumb-printed but he himself did not

attest the said Will.

c. Annamalai drafted the police report to be

lodged by the Respondent without any

instruction from the deceased.

d. He caused the deceased to thumb-print the Form

14A at a time when the deceased was not

mentally competent and easily influenced due to

consumption of anti-depressent drugs. He

21

stated affirmatively in Form 14A that the

deceased could understand the nature and effect

of the said document when that could never have

been the case based on medical evidence.

e. On 30.4.99, he caused the deceased to thumb-

print the change of nominee form when based on

medical evidence by then the deceased had no

mental capacity.

f. He wrote various letters to the banks and

financial institutions without the instructions

of the deceased. The Respondent had said in

cross examination that he had left everything

to Annamalai.

g. He wrote a letter to the Appellants’

solicitors, inter alia, describing the

deceased’s condition in June 1999 stating that

the deceased could speak clearly and

coherently. By this time, the deceased was in

fact unable to conduct her affairs and had

reached a ‘vegetable’ stage.


failing to hold that based on the totality of

22

evidence and in all the circumstances of the case,

the deceased lacked testamentary capacity for making

the alleged Will, that there were suspicious

circumstances surrounding the making of the said

Will which had not been dispelled, that the formal

requirements for the making of the 2nd Will had not

been complied with and that the Respondent, DW4 and

Annamalai had hatched a scheme to take advantage of

the deceased to dissipate the estate, change the

Will and to commit a fraud and as such the

Appellants’ claim ought to be allowed.

25. In the premises, the Appellants pray that the

decision of the Learned Judge be set aside and this

Appeal be allowed with costs here and in the Court

below and such other order as deemed fit by this

Honourable Court be granted.

Dated the 7th day of June, 2010.

……………………………………………………………………………Solicitors for the Appellants

This Memorandum of Appeal is filed by Messrs Balwant Singh & Co of No. 69, Lebuh Bishop, 10200 Penang, Solicitors for the Appellants.Tel. No:

23

Fax No:File Ref:

To:

1. The Deputy Registrar,Court of Appeal Malaysia….

2. The Deputy RegistrarHigh Court Kuala Lumpur….

3. The Respondent and/or his Solicitors

24

karn woon lin - memorandum of appeal

Documents