KUALA LUMPUR (March 2): Two of the late Lim Siew Kim’s children intensified their challenge over her RM1.6 billion will on Monday (March 2), as their counsel urged the High Court to strike out what he described as inadmissible “hearsay” evidence central to the defence’s case.

Appearing for the plaintiffs, Datuk V Sithambaram applied to expunge at least eight portions of the written statement of the fourth defendant, lawyer Datuk Low Beng Choo, who not only prepared the disputed will but was also present during its execution.

Sithambaram argued that parts of Low’s testimony, particularly those recounting what Siew Kim allegedly said during the preparation and signing of the will, amount to hearsay and should therefore be expunged.

“For hearsay evidence to be admissible under any exception, it must not be relied upon for its truth,” he told the High Court. “Here, the defence seeks to rely precisely on the truth of what the deceased purportedly said.”

The will in question belongs to the late Siew Kim, the third child of the deceased gaming mogul Tan Sri Lim Goh Tong. Her two daughters, Chan T’shiao Li and Kimberly Chan T’shiao Miin, filed the probate suit on Jan 19, 2023, challenging the validity of the will and questioning whether their mother possessed the requisite testamentary capacity at the time it was executed.

Sithambaram argued on Monday that he was not objecting to Low’s direct observations — such as her account that Siew Kim sat upright, appeared alert and signed each page of the will. Those, he conceded, fall within Section 60 of the Evidence Act, which allows witnesses to testify on what they personally saw or heard.

However, the senior counsel drew a sharp distinction when it came to conversations between the deceased and the solicitor. 

“What the deceased told her is hearsay. I cannot cross-examine the deceased,” he argued in court. “The will speaks for the deceased. You cannot now bring in what she allegedly said outside the will to corroborate it.”

He argued that allowing such evidence would prejudice the plaintiffs’ case and could effectively determine the dispute at the outset.

Sithambaram further contended that the commonly cited hearsay exception relating to state of mind does not apply, as the mental state of the witness — not the deceased — must be directly in issue.

“The fourth defendant’s mental state is not directly in issue,” he said, cautioning that misapplying the exception would undermine established evidentiary principles.

The contested will was allegedly signed while Siew Kim was warded in a private hospital. The estate is estimated to be worth RM1.6 billion.

Evidence is direct, not hearsay

In response, Low’s lawyers, S Sivaneindiren and James Khong, rejected the “characterisation of the testimony” as they argued that Low is entitled to testify on what she personally heard and saw — including instructions given to her by the deceased in her capacity as the drafting solicitor.

“The evidence is not being offered to prove the truth of the deceased’s statements,” Sivaneindiren argued. “It is tendered to demonstrate that instructions were in fact given and to explain how those instructions influenced the solicitor’s actions.”

He said the purpose of the evidence is to show that statements were made and that they shaped the drafting process and not just to prove the truth of the contents of those statements.

Sivaneindiren further contended that excluding such evidence would make it impossible for the court to properly assess testamentary capacity and to dispel alleged “suspicious circumstances” surrounding the will.

“This objection has never been taken in probate cases in this manner,” he added, urging the court to either dismiss the application or, alternatively, defer any ruling on admissibility until the conclusion of the trial.

If the objection is overruled, the defence sought for the costs of the application to be treated as “costs thrown away” in any event.

In this proceeding, the first defendant Malcolm Fernandes is represented by Rishwant Singh and Chia Eng Yi while the second defendant Chan Mei Yee is represented by Ong Kheng Leong and Ong Yu Jian. The third defendant, Marcus Chan — Siew Kim’s only son — is represented by Datuk K Kirubakaran, Goik Kenwayne and Foong Kar Yee.

The probate trial is also linked to a separate proceeding in which Marcus Chan is seeking to replace the current court-appointed officers managing the estate. He has nominated Victor Saw Seng Kee and Surendran Sathya Seelan of PricewaterhouseCoopers Advisory Services Sdn Bhd, or alternatively Lok Peng Chuan of KPMG Corporate Restructuring PLT, to assume the role.

Both matters are being heard before High Court judge Mahazan Mat Taib at the High Court of Malaya.

In brief remarks at the close of submissions, Mahazan said the issue engages both evidentiary principles and the court’s broader duty in probate matters.

“The court will consider the submissions carefully,” she said, before adjourning.

The court fixed 11am on Tuesday for its ruling on whether the impugned portions of Low’s testimony should be struck out. The trial is scheduled to continue on April 20 following the decision.