karn woon lin - memorandum of appeal
TRANSCRIPT
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.
2. The Learned Judge erred in law and in fact in
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
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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
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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
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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.
5. The Learned Judge erred in law and in fact in giving
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
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contradicted in material particulars and had been
shown, through cross examination, to be unreliable
and not worthy of credit.
6. The Learned Judge erred in law and in fact in
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
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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
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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.
7. The Learned Judge erred in law and in fact in
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
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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.
8. The Learned Judge erred in law and in fact in
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
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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.
9. The Learned Judge erred in law and in fact in
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.
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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.
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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.
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11. The Learned Judge erred in law and in fact in giving
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.
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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.
12. The Learned Judge erred in law and in fact in
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
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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.
13. The Learned Judge erred in law and in fact in
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.
14. The Learned Judge erred in law and in fact in
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.
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15. The Learned Judge erred in law and in fact in
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.
16. The Learned Judge erred in law and in fact in
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.
17. The Learned Judge erred in law and in fact in
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
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erroneous inferences and failing to take into
consideration the Submissions of the Appellants.
18. The Learned Judge erred in law and in fact in
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.
19. The Learned Judge erred in law and in fact in
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
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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.
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20. The Learned Judge erred in law and in fact in
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.
21. The Learned Judge erred in law and in fact in
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
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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.
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23. The Learned Judge erred in law and in fact in
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
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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.
24. The Learned Judge erred in law and in fact in
failing to hold that based on the totality of
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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:
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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
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