Till death don’t us part: The interplay between a Will, the Deceased’s Assets and Matrimonial Assets

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Violence is the last refuge of the incompetent. -Isaac Asimov

Anger is a terrible force. It consumes far more than it is entitled to and more often than not, utterly obliterates its originator.

Conjugal relationships are especially subject to anger’s destructive ability. The dynamics between a married couple are complex and multi-layered, with in-laws adding an additional (galling) tier. 

A common scenario

Archibald and Bethany are a newly-married couple. They purchase No. 36, Klang, Selangor (“No. 36”).

At the time No. 36 is purchased, Bethany expends her own monies (on the downpayment, renovations, etc.). However, she is agreeable to No. 36 being registered solely in Archibald’s name.  

30+ years go by and the relationship strains.

On one particularly stormy night, Archibald pens a Will in his own handwriting (a holographic Will). He asserts that No. 36 is to be solely bequeathed to his brother, Chekhov.

Archibald dies. The Will is discovered and Chekhov attempts to have Bethany removed from No. 36.

The interplay between a Will and Matrimonial Assets

In such a scenario, a question arises: Was Archibald entitled to Will away No. 36, given that Bethany contributed towards their matrimonial home? There is a clear interplay here between the rights of a wife and the intentions of the newly-deceased Archibald.

The law comes down in favour of Bethany: The CA decision of Premavathy v Dr Premalatha [2020] 2 MLJ 376

The answer to this conundrum may be discovered by reading the CA decision of Premavathy v Dr Premalatha [2020] 2 MLJ 376. Dr Ganeshwaran and Dr Premalatha were a married couple. They purchased No. 62, Lebuh Peria, 41200 Klang (“the Klang house”) as their matrimonial home.

Their relationship deteriorated. A petition for divorce was filed and was pending.

Dr Ganeshwaran then died. In his Will, the Klang house was bequeathed to his family (excluding his wife).

The matter went to trial. There were 2 core issues:

1. Was the Klang house a matrimonial property?

2. If it was a matrimonial property, was Dr Ganeshwaran still able to will-away the Klang house, to the exclusion of his wife?

The decision post-trial

At trial, both Dr Ganeshwaran’s parents and his wife asserted that they paid for the Klang house. His wife was able to produce receipts showing payments towards the deposit and the monthly instalment payments (see para. 31 of the Grounds).

In the upshot, the High Court determined that his Will was valid. However, his decision to exclude his wife from the Klang house was wrong; Dr Ganeshwaran could not Will away what was not his and as a result, a constructive trust in favour of his wife was pronounced.

The proceedings at the Court of Appeal

At the CA, an appeal and cross-appeal were lodged. The wife claimed his Will was not valid, whereas the Executor maintained that the Klang House belonged to the parents.

The CA dismissed both the appeal and the cross-appeal. The CA held (inter alia) as follows:

(l) the 1/2 share of the matrimonial asset for the benefit of the respondent in our view was a fair, just and reasonable division of the said matrimonial asset. The 1/2 share of the matrimonial asset that is being held on trust for the benefit of the respondent is to be excluded from Dr Ganeshwaran’s will dated 14 February 2016; 

(m) the learned JC was correct to make a finding that the will is a valid and binding will. This means that Dr Ganeshwaran can only bequeath his ownership/share of the matrimonial property ie 50% to the appellant in this case, Premavathy a/p Balakrishnan whilst the remaining 50% belongs to the respondent;

A subsequent application for leave to the Federal Court was dismissed (see the observations of the High Court in Premalatha v Premavathy [2023] MLJU 2595, where the wife was obligated to return to the High Court for ancillary orders due to the recalcitrance of the Executor).

Key takeaways

A spouse’s interest in any matrimonial property remains inchoate (i.e., indeterminate) until the Court determines what they (rights) are (Ng Li Lin v Ting Tian Hwa [2017] 10 MLJ 626; Gan Lei Chew v Tee Choon Hwa [2022] MLJU 3637). However, upon death, it is clear that a trust arises over matrimonial assets; these form a separate class that will be carved-out from distribution.

A spouse may then be denied (even in death) when one is circumspect and careful. If one carefully peruses the CA’s Grounds, it is clear that what ultimately determined the matter would be the wife’s contributions towards the initial deposit and the monthly instalments for the Klang House; when contrasted against the parents’ inability to produce any proof of contributing towards the purchase price, the Court was bound to determine the matter in her favour.

GAVIN JAYAPAL

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