JCW

[Law and Application of Secret Trust in relation to a Will] Chooi Peng was the counsel for the Appellants. A Will was challenged with a Full Trial. The Court of Appeal expounded on the important principles  of law in relation to  “Secret Trust”  and held amongst others that : (i)       The requirements for the formality of the will has been satisfied and the Appellant’s defence (against the Respondent challenging the Will) is simple and straightforward and they had pleaded a secret trust;   (ii)       The common law concept of “secret trust” is recognised in Malaysia despite the law of will placed under the statutory regime in Malaysia. The Court’s endorsement of the secret trust does not breach the Wills Act or any other statutory law;   (iii)      The High Court misdirected on the issue of testamentary capacity by combining the issue of secret trust with that of testamentary capacity. Testamentary capacity is related to medical evidence of related credible evidence, and has nothing to do with a story related to secret trust   (iv)      The law of secret trust was developed to assist the testator’s purported “sins” are what is often said “skeleton in the cupboard” for just and equitable reason to benefit his genes or acquaintance, whether lawful or otherwise to provide some form of security to his beloved ones.  The law on secret trust has developed in a manner to close its eyes on public policy or breach of rule of law related to monogamous or polygamous marriage inclusive of polyandry or relationship of cohabitee, etc.  The court does not strike out secret trust argument based on illegality or public policy.