INTRODUCTION A will is often challenged by attacking the deceased’s age, illness, medication or dependence on others. Under Malaysian law, the real inquiry is whether the testator had testamentary capacity at the material time the will was made. Malaysian courts do not ask whether the testator was bedridden, looked frail, or suffered from serious illness. The courts will enquire whether the testator had a “sound mind” at the material time the will was made. [1][2] TEST FOR TESTAMENTARY CAPACITY The well-settled test is that the testator must understand [3] : – i) that he is making a will and the effect of making it;ii) the general nature and extent of the property he is disposing of; andiii) the claims of those who ought to be considered. No disorder of the mind or insane delusion should poison the testator’s affections, pervert his sense of right, or influence the disposition in a way that would not have happened if the mind had been sound. [3][4] The testator does not need to be in perfect health. However, the testator must still know what he is doing, what he owns, and who may ordinarily have a claim on his estate. “SOUND MIND” ≠ PERFECT HEALTH A person may be very old, seriously ill, physically weak, or even close to death, and yet still have sufficient understanding to make a valid will. [1][2][3][4] A will may still be valid even though the deceased is described as “a very sick man”, so long as he understood the nature and extent of the properties he was disposing of and was able to comprehend and appreciate the claims of the beneficiaries he had in mind. [2] There must be clear evidence that the illness so affected the testator’s mental faculties as to make him unequal to the task of disposing of his property. Mere proof of serious illness is insufficient to displace prima facie testamentary capacity and due execution. [1] If the testator is ill, that does not by itself deprive him of the ability or capacity to execute a will. What is required to vitiate testamentary capacity is clear evidence of an insane delusion existing at the time of making the will. [5] ILLNESS OR MENTAL CONDITION A will may be vulnerable if the evidence shows that, at the material time the will was made, the testator did not understand the nature of the act, the effect of the will, the extent of the property being disposed of, or the claims of those who ought to be considered. [1][3][4] Cases before the courts distinguish between physical weakness and mental incapacity. A person may be weak in body but clear in mind. However, if the testator’s mind was affected by delusion, confusion, medication, or cognitive impairment such that he was unable to understand the testamentary act, the will may fail. [3][4][6] WHO MUST PROVE TESTAMENTARY CAPACITY? Where the validity of a will is challenged, the propounder of the will bears the burden of proving [2][7][8] : – i) testamentary capacity;ii) due execution; andiii) the absence of suspicious circumstances surrounding the making of the will. Only after that burden is discharged does the burden shift to the person challenging the will to prove any vitiating factor such as undue influence, fraud or forgery. [2][7][8] The challenger does not have to begin by disproving the will. The propounder must first satisfy the conscience of the court that the paper propounded is the last will of a free and capable testator. [7][8] CHALLENGE TO A WILL MUST BE SUPPORTED BY EVIDENCE Where the evidence is clear and consistent, the will is more likely to be upheld. Where the evidence is weak, contradictory, or raises unanswered suspicion, the will may be set aside. [2][6][7] The following factors may be considered by the courts [1][2][8] : – i) the evidence of the solicitor who prepared or witnessed the will;ii) the evidence of the attesting witnesses;iii) medical evidence directed to the testator’s mental state at the material time; andiv) evidence that the contents of the will were read over to the testator and understood by him. General references to old age, hospital visits, or illness are not enough. If unsupported by evidence, allegations of lack of testamentary capacity are “just a bare allegation” and “pure conjecture”. [9] Where testamentary capacity is genuinely in dispute, the issue ordinarily turns on evidence at a full trial, including the evidence of witnesses, the solicitor, and, where relevant, medical practitioners. [7] WHEN WILL A WILL GENERALLY BE VALID? A will is generally valid where the court is satisfied that, at the time of execution [1][2][7][8]: –   i) the testator was fully conscious and had a sound mind;ii) the testator understood and approved the contents of the will;iii) the testator understood the nature and effect of making the will;iv) the testator understood the general nature and extent of his property;v) the testator was able to comprehend and appreciate the claims of those who ought to be considered;vi) the will was duly executed; andvii) any suspicious circumstances have been sufficiently explained or dispelled. Once these matters are established, the courts will generally give effect to the wishes of a free and capable testator. The courts are not concerned with whether the disposition was fair, generous or expected. [5][8] CONCLUSION A “sound mind” does not mean perfect health. It means sufficient mental ability at the material time the will was made. [1][2][3] Serious illness does not, without more, defeat capacity; but the will must still be shown to be the act of a free and capable mind. [1][2][5] In the next part of this series, we will look at suspicious circumstances, and when they are serious enough to put the validity of a will in doubt. Footnotes [1] Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581 (Federal Court)[2] Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1

INTRODUCTION It is trite that where a party who has obtained an adjudication decision in its favour fails to receive payment of the adjudicated amount from the party against whom the adjudication decision was made, the successful party may seek direct payment from the principal pursuant to section 30 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”). However, section 30 may only be invoked if money is due or payable by the principal to the adjudication respondent at the time of receipt of the request under section 30(1). This requirement was recently considered by the Court of Appeal in Tri Pacific Engineering Sdn Bhd v KL Eco City Sdn Bhd [2026] MLJU 1313. BRIEF BACKGROUND The Plaintiff was appointed by the Main Contractor, Ireka Engineering & Construction Sdn Bhd (“Ireka”), as the Sub-Contractor for certain works under the project. The Plaintiff alleged that it had completed the works but that Ireka had failed to pay the sums due under the sub-contract. The Plaintiff then commenced adjudication proceedings under the CIPAA against Ireka. Before the conclusion of the adjudication proceedings, the Plaintiff had already received RM532,940.70 from Ireka. On 8.5.2023, the adjudicator delivered the adjudication decision in favour of the Plaintiff, and the Plaintiff then sought direct payment from the Defendant, as principal, for the total adjudicated sum of RM1,191,624.42. The Plaintiff issued two notices under section 30 of the CIPAA, namely the first notice dated 9.5.2023 and the second notice dated 23.5.2023. The Defendant subsequently made direct payment of RM998,653.66 to the Plaintiff. ISSUE BEFORE THE COURT The predominant issue before the High Court, and later on appeal, was whether there was any money due or payable by the Defendant to Ireka at the time of receipt of the Plaintiff’s notice of demand made under section 30 of the CIPAA and, if so, whether the Defendant was liable to pay the balance adjudicated amount to the Plaintiff. The Plaintiff contended that the Final Certificate dated 10.6.2023 showed that monies were due or payable by the Defendant to Ireka, and that the statutory requirement under section 30(5) was therefore satisfied. The Defendant, on the other hand, contended that at the time of receipt of the second notice, only the balance retention sum of RM998,653.66 was due or payable to Ireka, and that this sum had already been paid directly to the Plaintiff. The Defendant further relied on the Settlement Agreement entered into with Ireka and contended that, even taking the Final Certificate into account, the amount due or payable to Ireka was only RM87,916.92. HIGH COURT The High Court dismissed the Plaintiff’s claim. The High Court Judge found that the valid Notice of Request for the purpose of section 30 of the CIPAA was the second notice, and not the first. This was because, as at the date when the first notice was issued, the time frame for Ireka to pay the adjudicated sum to the Plaintiff under the adjudication decision had not yet expired. Accordingly, the first notice was premature and invalid. The learned High Court Judge then considered whether there was any money due or payable by the Defendant to Ireka at the time of receipt of the second notice, and concluded on a balance of probabilities that, as at the time of the second notice, only the balance retention sum in respect of the Plaintiff’s portion of works amounting to RM998,653.66 was due by the Defendant to Ireka. As that sum had already been paid directly to the Plaintiff, there were insufficient funds to sustain the Plaintiff’s claim under section 30. COURT OF APPEAL The Court of Appeal upheld the High Court’s decision and dismissed the appeal.The Court of Appeal ruled that the right to direct payment from the principal arises only when there is money due or payable by the principal to the successful party in the adjudication proceedings at the time of receipt of the Direct Payment Demand. In this case, the material time was when the second notice was received by the Defendant. The Court of Appeal adopted and reiterated the position taken in HSL Ground Engineering Sdn Bhd on the effect of section 30(5) of the CIPAA and the words “due or payable”. If there is an obligation or liability to pay upon it being properly claimed, the Defendant is obliged to make direct payment if there is money due or payable under section 30(5) of the CIPAA. The Court also accepted the distinction between “due” and “payable”, namely that a debt may accrue when the relevant certificate is issued, but the money only becomes due upon expiry of the payment period stipulated in the contract. The focal point of the dispute was the Final Certificate dated 10.6.2023. The Plaintiff argued that this demonstrated that there were funds due and payable by the Defendant to Ireka at the material time. The Court of Appeal disagreed. After reviewing the Final Certificate, it found that the same showed the total amounts due to 12 nominated subcontractors, of which the Plaintiff itself was one, and that from that figure, only RM998,653.66 was due to the Plaintiff. The Court therefore did not agree with the Plaintiff’s contention that the Final Certificate demonstrated that, at the material time, there were funds due and payable to the Main Contractor. The Court of Appeal further held that, pursuant to the Final Certificate and after taking into account the set-off or deductions made in accordance with the Settlement Agreement, the amount due or payable by the Defendant to Ireka was RM87,916.92. However, that sum would only become due when the Final Certificate was issued on 10.6.2023. Since the Plaintiff took the position that there was no fresh demand under section 30 of the CIPAA after the second notice, there was no amount due or payable by the Defendant to Ireka as at May 2023 beyond the RM998,653.66 already paid. The Court also found that the Settlement Agreement was a valid agreement between the Defendant and Ireka and could be

INTRODUCTION The decision of the High Court in Perbadanan Pengurusan 10 Boulevard v. Newlake Development Sdn Bhd & Anor [2026] MLJU 1378; [2026] MLRHU 987 provides an important clarification on the limits of a developer’s ability to retain ownership over facilities within a strata development. At its core, the dispute concerned whether the developer could lawfully designate visitor carparks and landscape areas as “accessory parcels” appurtenant to its own parcel, thereby retaining ownership and control over them, or whether those areas constituted “common property” belonging to all parcel owners. BACKGROUND FACTS 10 Boulevard is a commercial strata development comprising four office towers. Under the amended Development Order, the development was required to provide 1,302 carpark bays, including 118 visitor carpark bays. When strata titles were issued, the Developer registered 122 ground-floor carpark bays together with several landscape, boom-gate and ticketing-machine areas as accessory parcels attached to its own parcel comprising the basement carparks. The Developer subsequently rented out the carparks and imposed parking charges on the users. The Management Corporation of 10 Boulevard commenced proceedings against the Developer and the Director of the Selangor Land and Mines, contending that these areas constituted common property and could not lawfully be retained and monetised by the Developer. MANAGEMENT CORPORATION’S CASE The Management Corporation argued that the impugned areas were common property by operation of law. It relied on section 2 of the Building and Common Property (Maintenance and Management) Act 2007 (“BCPA“), which expressly includes carparks, entrances, exits and landscape areas within the definition of common property. Since sections 44 and 45 of the BCPA prohibit contracting out of its provisions, any Sales and Purchase Agreement clause purporting to reserve visitor carparks to the developer was void and unenforceable. The Management Corporation also relied on the Court of Appeal case of Ideal Advantage Sdn Bhd v Perbadanan Pengurusan Palm Spring @ Damansara [2020] 4 MLJ 93 and High Court case of PJ Centrestage JMB v Cherish Springs Sdn Bhd & Ors [2024] MLJU 591, which emphasised that common property cannot be removed from the statutory scheme through private contractual arrangements. DEVELOPER’S CASE The Developer relied principally on the Sale and Purchase Agreements (“SPAs“), which expressly excluded the carparks from the definition of common property and provided that the carparks belonged to the developer. The Developer also argued that the Management Corporation was estopped from challenging its ownership as the arrangement had been accepted for years and maintenance charges had been paid accordingly. The Developer further relied on the Court of Appeal case of Target Term Sdn Bhd v Waldorf and Windsor Management Corp and Another Appeal [2024] 6 MLJ 598, where the Court held that once carparks are identified as accessory parcels in a certified strata plan, they cannot be regarded as common property. On this basis, the Developer contended that the impugned areas had been validly accessorised and therefore belonged to it. FINDINGS OF THE COURT The Court accepted that the impugned accessory parcels were being used in conjunction with the Developer’s main parcel. However, the Court held that this was not the decisive issue. The real question was whether the visitor carparks should have been carved out as accessory parcels in the first place. In answering that question, the Court placed significant weight on the Development Order. Although the Development Order did not specify the exact location of the required visitor carparks, the Court found that it is logical that the 122 ground-floor bays were intended to fulfil that requirement, given their location and close correspondence with the number of visitor bays required under the Development Order. The Court held that the statutory definition of common property under the BCPA prevailed over the SPA provisions. Any attempt to reserve the visitor carparks to the Developer through contractual arrangements was therefore invalid. The Court also rejected the developer’s estoppel argument, reaffirming the principle that estoppel cannot be used to circumvent a statute or validate an arrangement prohibited by law. Since the relevant SPA clauses contravened the BCPA, they were null and void. PRACTICAL IMPLICATIONS FOR DEVELOPERS AND OWNERS This decision serves as an important reminder that developers cannot rely solely on SPA provisions or the designation of an area as an accessory parcel to retain ownership of facilities that are intended to serve the development as a whole. While Target Term confirms that validly created accessory parcels are generally not common property, this case demonstrates that the Court may still examine whether those parcels ought to have been accessorised in the first place. Where the area in question is intended by statute or planning approval to function as common property, a developer cannot transform it into a private asset through drafting or registration alone. REAFFIRMATION OF STATUTORY PROTECTION This High Court decision reaffirms a simple but important principle: where there is a conflict between a private agreement and a mandatory statute, the statute prevails. Developers cannot privatise visitor carparks, landscape areas and other facilities intended for common use merely by labelling them as accessory parcels. Ultimately, the decision reinforces the integrity of Malaysia’s strata management regime and safeguards common property from being converted into a private revenue-generating asset. Disclaimer: This article is for general information only and does not constitute legal advice or legal opinion. It should not be relied upon as a substitute for specific legal advice. No person should act (or refrain from acting) based on this article without obtaining advice on the specific facts and circumstances. Halim Hong & Quek does not accept responsibility or liability for any loss or damage arising from reliance on this article. Halim Hong & Quek reserves the right to update, amend or withdraw this article at any time. All rights reserved. Subscribe to DISPUTES DECODED BY HHQ, our bi-monthly legal update, at https://mailchi.mp/hhq/2nofd6rjlt to receive our latest legal updates and articles. You may also visit the HHQ website at https://hhq.com.my/insights/ for further articles and insights from our team. About the authors Meyer Thor Xiao XinSenior AssociateDispute ResolutionHalim Hong & Quekmeyer.thor@hhq.com.my ○ Tan Chuin-LoongAssociateDispute ResolutionHalim Hong &