12 September 2025 

PROBATE AND ADMINISTRATION
Testamentary capacity – Undue Influence – Validity of Will – Intestacy – Probate

Kong Kin Lay & Ors v Kong Kin Siong & Ors
Civil Appeal No: W-02(NCvC)(W)-290-02/2023)| Court of Appeal
– see the grounds of judgment here

Facts The dispute arose over the validity of a will executed on 10 May 2014 by the late Mr. Kong Siew Tong (“the Deceased”), who was 97 years old, illiterate, and wheelchair-bound since 2009. The Deceased had two wives and 13 children, including both Appellants and Respondents in this appeal. The will was prepared by the family’s lawyer and witnessed in the presence of two attesting witnesses, with its custody later controlled by the Respondents. The Appellants challenged the will on grounds of lack of testamentary capacity, suspicious circumstances, and undue influence. After consolidating several related suits, the High Court held that the Deceased had the requisite testamentary capacity, there were no suspicious circumstances, and the will was not procured through undue influence. The High Court declared the will valid, granted probate to the 1st Respondent, and appointed him sole executor. Unhappy with the decision of the High Court, an appeal was filed at the Court of Appeal.

Issues 1. whether the High Court erred in finding that (i) the Deceased had testamentary capacity; (ii) there were no suspicious circumstances surrounding the making of the will; and (iii) the will was not procured under undue influence.
2. Whether the High Court had wrongly drawn adverse inferences under section 114(g) of the Evidence Act 1950 against the appellants for not questioning certain witnesses.
3. Whether the “Golden Rule” requiring medical confirmation of testamentary capacity in cases of aged or infirm testators should have applied.

Held In delivering the unanimous decision, YA Datuk Wong Kian Kheong allowed the appeal and set aside the High Court’s ruling. The Court of Appeal held that there was real doubt as to the Deceased’s testamentary capacity, given his advanced age, illiteracy, wheelchair-bound condition, and signs of senility. The Respondents, as propounders of the will, failed to prove capacity at the time of execution. The court stressed the “Golden Rule” (Re Simpson’s Case), which advises medical confirmation of capacity for aged or infirm testators, yet no medical practitioner was involved. This omission, together with evidence of undue influence by the Respondents who controlled the Deceased’s access to treatment, restricted contact with other siblings, and took custody of the will, undermined the will’s voluntariness. The suspicious circumstances of its execution, including being signed in a car, read by the family’s lawyer, and later kept under one Respondent’s control, were not explained away. The court therefore declared the will invalid, held the Deceased to have died intestate, and appointed the 1st Appellant and 1st Respondent as co-administrators under the Distribution Act 1958.

Zul Rafique & Partners
{12 September 2025}

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