LOW WEE HENG (NO. K/P : 730425-10-5495) 1. LOW WEE HOUNG (NO. K/P : 670829-10-5211) 2. LEE SEE (NO. K/P : 440201-10-5714)

LOW WEE HENG (NO. K/P : 730425-10-5495) 1. LOW WEE HOUNG (NO. K/P : 670829-10-5211) 2. LEE SEE (NO. K/P : 440201-10-5714)

The court held that Paragraphs 5(B) and 6 of the Will are invalid insofar as they purport to direct issuance of KSPSB shares because the testator did not own or control those shares at death; accordingly he could not lawfully bequeath them (nemodat quod non habet). The facts were sufficiently undisputed to justify determination under Order 14A and to answer the posed legal questions in the negative.

Citation
BA-22NCvC-436-08/2018 (Mahkamah Tinggi)
Parties
Plaintiff: Low Wee Heng; 1st Defendant: Low Wee Houng; 2nd Defendant: Lee See
Court
High Court
Jurisdiction
Malaysia
Judgment Date
6 May 2020
Case Number
BA-22NCvC-436-08/2018 (Mahkamah Tinggi)
Procedural Posture
Civil (originating Summons and Civil Suit) / Interlocutory Applications Determined; Grounds of Judgment Delivered
Outcome
Enclosure 48 (2nd Defendant Order 14A application) allowed; Enclosure 56 (Plaintiff application to cross-examine) dismissed with costs; Enclosure 58 (Plaintiff application to strike out counterclaim) dismissed with costs; declarations made on invalidity of will provisions as they relate to issuance of KSPSB shares
Legal Topics
Construction of Will, Order 14 a Determination, Cross Examination on Affidavit (o.38 R2), Strike Out (o.18 R19), Res Judicata/issue Estoppel, Nemodat Quod Non Habet, Minority Oppression and Buyout/winding Up
Source Language
Malay/English
Wills and Probate Trusts Company Law Civil Procedure Equity and Estates Construction of Will Order 14 a Determination Cross Examination on Affidavit (o.38 R2) +4 more

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Parties

Low Wee Heng

Plaintiff

Low Wee Houng

1st Defendant

Lee See

2nd Defendant

Procedural Posture

Civil (originating Summons and Civil Suit) / Interlocutory Applications Determined; Grounds of Judgment Delivered

Legal Issues

  1. 1 Whether a testator who did not own shares in a company can direct executors to issue that company's shares to beneficiaries under a will (Para 5(B) and 6)
  2. 2 Whether Paragraphs 5(B) and 6 of the Will are valid and binding on the executors
  3. 3 Whether the matter is suitable for determination under Order 14A ROC 2012 without full trial

Ratio Decidendi

The court held that Paragraphs 5(B) and 6 of the Will are invalid insofar as they purport to direct issuance of KSPSB shares because the testator did not own or control those shares at death; accordingly he could not lawfully bequeath them (nemodat quod non habet). The facts were sufficiently undisputed to justify determination under Order 14A and to answer the posed legal questions in the negative.

Court Disposition

Enclosure 48 (2nd Defendant Order 14A application) allowed; Enclosure 56 (Plaintiff application to cross-examine) dismissed with costs; Enclosure 58 (Plaintiff application to strike out counterclaim) dismissed with costs; declarations made on invalidity of will provisions as they relate to issuance of KSPSB shares

Orders

  • Declare Paragraph 5(B) and Paragraph 6 of the Will of Kin Seng @ Low Tick dated 15.4.1996 are not valid to direct issuance of KSPSB shares because testator did not own such shares
  • Declare steps taken by executors/directors to distribute KSPSB shares pursuant to Para 5(B) as ultra vires and invalid to the extent they purported to vest third-party shares under the Will