Legal Cauldron issue 1 of 2011

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A bi-annual legal magazine published by Messrs Jayadeep Hari & Jamil (Malaysia)

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Legal Cauldron issue 1 of 2011

  1. 1. No KDN: PP 15706/02/2011 LEGAL CAULDRON Jayadeep Hari & Jamil Advocates and Solicitors WE CARE In this issue: The Personal Data Protection Act 2010—what it means to you. Motor Accidents—What next? Execution of Wills—why you must make one. Divorce—The End of Family Life? JHJ’s new strategic alliance with our partners in China— Shanghai Promise. JHJ’s new Melaka branch. The Cauldron Team: EDITOR: Andrew Chee Issue no. 1LEGAL CAULDRON Issue No 1 of 2011 DESIGN & LAYOUT: Andrew Chee 2011 CONTRIBUTORS: Ganesheraj Selvarajah of T. Gajendran Thaneshmohan Shobana Pathmanathan Our offices: PETALING JAYA KOTA BHARU 2 KOTA BHARU 1 MELAKA KUALA LUMPUR Unit 612, 6th Floor, Tingkat 2, Lot 11, 2713, 1st Floor, Section 22, No.54-1, Jalan TU 2, Suite 2.03 (2nd Floor) Menara Mutiara Majestic, Bangunan Tabung Haji, Batu 2, Jalan Kuala Krai, Taman Tasik Utama, Block A, No 45, Medan Setia Satu, No. 15, Jalan Othman, Kompleks Niaga, Jalan Dato Pati, 15050 Kota Bharu, 75450 Ayer Keroh, Plaza Damansara, Bukit Damansara, 46000 PJ, Selangor. 15000 Kota Bharu, Kelantan. Kelantan. Melaka. 50490 Kuala Lumpur. T: 03-7784 7255 T: 09-747 7782 T: 09-741 2050 T: 06-234 7330 F: 03-7781 7255 F: 09-747 4733 F: 09-741 2051 F: 06-234 4800 T: 03-2096 1478 | F: 03-2096 1480
  2. 2. MESSAGE FROM THE EDITOR:Welcome to the first edition of the Legal Cauldron for Shanghai Promise will give you peace of mind for your over-2011. It has been a very eventful first-half of the year for JHJ seas ventures.and we are proud to bring you, once again, more legal writ-ings, from the JHJ team. We hope you enjoy reading them In addition to new strategic alliances, JHJ has also expandedas much as we enjoyed writing them. and opened a new branch office in Melaka. We are proud to also announce the opening of our new branch as of July 1,Moving forward with our resolutions from last year, JHJ is in 2011 to serve you better and in more places. If you have athe final stages of implementing our JHJ 360o Student At- matter that you would like us to look into in Melaka, ortachment Programme. The various lawyers, partners anywhere in the country for that matter, don’t hesitate toand staff have had meeting after meeting to gather perspec- call us. If you want to contact the Melaka branch in particu-tives, especially from fresh graduates and pupils in chambers, lar, please find the address and contact numbers at the frontto come up with a programme which we feel best equips of our newsletter and in our newflash columns as well.the student with necessary practical skills for legal practice.Without going into too much detail, our programme lasts, And this brings us to our final point: JHJ would like to thanknecessarily for nine months, on a very flexible schedule so you, our valued clients, for participating in our JHJ Bloodas to not interrupt the student’s academic pursuits but in- Donation Drive 2011. Thank you so much for making it astead complements his or her studies with knowledge of the success! We could not have done it without you! As youpractical relevance of the things he or she is taught in already know, donating blood the last time round made usschool. see the critical importance of doing our little part in giving back to society. We decided, this time, to organise it our-With exposure in all our departments, this programme will selves and collaborated with Pusat Darah Negara hold anhelp the student find his inclination or the area of practice event for a day where we gathered everyone we knew, in-that he or she feels most comfortable in very early in his or cluding clients, family and friends, to donate blood to theher professional life. We at JHJ also feel that it is only fair National Blood Bank reserves. To bring the cause closer tothat the student be remunerated and we choose not to say home, we held it in the comfort of our office premises andthat the fact that the student is learning and gaining experi- cooked home-made food to treat everyone for parting withence is adequate remuneration. All in all, we are very ex- a little bit of their blood. Some claimed that our Knowledgecited for this programme to launch in September and if you guy’s fried rice and home-made sambal made them forgetknow anyone who has completed his or her LLB but not yet about having lunch outside. We were touched by such com-finished the CLP, please inform them that they can apply to pliments but most of all, we were touched by the responsejoin our programme. Call us at 03-2096 1478 or email given by you, our valued clients, in support of this cause.kd@jhj.com.my for further details. We thank you once again and have in the works, plans toAs you may have also noticed, JHJ has undertaken an exten- expand our corporate social responsibility (CSR) effortssive re-branding exercise to re-establish our corporate further. JHJ has always cared for the environment that weidentity. We have a shiny new outlook but rest assured, our live in and its inhabitants therein. From giving back to thewarmth and high level of personal attention is still main- inhabitants of society, we now hope to help the inhabitantstained. And don’t worry, a new look does not mean a new of Malaysia’s lush tropical forest. We are looking forward toprice scale either; we just wanted a fresh look and we have finding a way to collaborate with the World Wildlife Fundnot started charging more for anything as a result. For a (WWF) to help locally in preserving Malaysia’s unique wild-glance at the new JHJ, take a look at our newly launched life from extinction and illegal wildlife-trafficking. Whetherwebsite (still at the same address: www.jhj.com.my) to we focus on saving a particular specie or animals in general,see some of the results of our re-branding exercise. Parts of we hope to involve you and hope to receive the great sup-the site may still be under construction, but we feel com- port you have been giving us all these years. We can’t thankfortable enough to show you the new JHJ. Also, feel free to you enough and we are open to any suggestions you mayrequest for a copy of our new corporate profile to see an have for us in our CSR efforts.updated list of services that JHJ now provides. Without further ado, please enjoy the latest edition of theSpeaking of services, JHJ is also proud to announce a new Cauldron with our compliments.strategic alliance with Shanghai Promise Law Firm(“Shanghai Promise”), one of the top and most comprehen- Thank you.sive firms in China. With many now seeking to penetratethe Chinese market, JHJ together with Shanghai Promise isable to very comfortably and securely help Malaysians initi- EDITORate, advise, resolve, and settle all their necessary legal affairs Andrew Cheein China. Now with JHJ, you can rest assured that if you Knowledge Departmentever had thoughts of “going into” China, we can help you in andrewchee@jhj.com.myalmost any matter and at the same time give you value for WE CAREmoney without having to venture into it yourself riskingcostly mistakes and promises from unsafe sources. JHJ and Legal Cauldron 1 of 2011 | 2
  3. 3. PERSONAL DATA PROTECTION ACT 2010 - What it means to you. By Ganesheraj SelvarajahThere has been a lot of buzz recently about this new legisla- 4. Security Principle.tion (i.e. the Personal Data Protection Act 2010, hereinafterreferred to as “the Act”) which purports to keep safe an The data user must take practical steps to protect the per-individual’s personal data from abuse. But many are uncer- sonal data from any loss, misuse, modification, unauthorisedtain as to the implications of the Act or accidental access or disclosure, alteration or destruction.It would be useful to use the following illustration from the However, “practical steps” is not defined but arguably theoutset: measures that need to be taken would vary with regard to the risk and sensitivity of the data in question and hence theLet us say you want to sign up for a mobile-phone package practical steps that need to be taken by a hospital wouldby Telco A. In doing so, you would naturally fill in an appli- differ from a telco or bank.cation form in which you would disclose your personal in-formation; typically your I/C number, address, other contact 5. Retention Principlenumbers, emails, etc. Under the Act, the Telco is referredto as the “data user” and you the “data subject”. This principle provides that data shall be kept and/or proc-Now, the Act seeks to regulate the data user’s treatment of essed for so long as is necessary only. Once the purpose foryour personal information via guidance through a set of which the data was collected is achieved, it is mandatory forseven (7) principles: the data to be disposed. For example, if your loan applica- tion was rejected by the bank, arguably then, your data must1. General Principle: The processing of data re- be destroyed or permanently deleted. quires consent.This is self-explanatory but it should be noted that even if “You must also be informed of youryou do give your consent, Telco A may only use your datafor lawful purposes only, and for purposes directly related right to access and correct yourto the activities of the Telco and only to such an extent as is data…”necessary and not excessive in relation to that purpose. Themethod of giving consent is not specified but it is reasonablyassumed that consent cannot be inferred but must be given 6. Data Integrity Principlethrough some positive act. However, it does not last for-ever. You may, by notice in writing, revoke your consent This principle imposes a duty on the data user to ensureand the data user must cease processing your data. that the personal data is accurate, complete, not misleading and up-to-date for its purpose or directly related purpose.2. Notice and Choice Principle. This is important with regards to the legal status of an indi- vidual, e.g. a discharged bankrupt. Obviously, if his status as aThis principle sets outs requirements which, among others, discharged bankrupt is not updated it would be detrimentalstate that the data user must inform you in writing that your to him.personal data is being processed (by the data user itself orby third parties) and for what purpose. You must also be 7. Access Principleinformed of your right to access and correct your data andchoose, if there is a choice, how to limit the processing of The right to access your data and correct it if inaccurate isyour data. In addition to that, you must also be informed of ancillary to the Data Integrity Principle above. For obviouswhat data is voluntary or obligatory; if obligatory, then what reasons, if you are not allowed to access and correct yourare the consequences of failing to supply that said data. data, then there cannot be integrity in it. However, there are circumstances where the data user may refuse your re-3. Disclosure Principle. quest to correct your data but the data user must give you notice of it.The disclosure principle has two aspects: Furthermore, it is an offence to transfer data to a country• First, data users are only allowed to disclose data for outside of Malaysia if that country has no law similar to the the purpose or directly related purpose of which it Act or if there is no adequate level of protection in that was collected; and country. But notwithstanding, a data user may do so if a data• Data users can only disclose to the data to a third party subject has consented to it, or is necessary for the perform- or a class of third parties who are stated in the written ance of a contract, or if the data user has taken reasonable notice to you. steps to ensure that the data would be protected. Legal Cauldron 1 of 2011 | 3
  4. 4. While the above are merely general principles with regards a statement about such a possibility in the written notice,to the application of the Act, there are provisions for indus- this may possibly give them an avenue to disclose your datatry led forums to take the initiative to draft industry-specific to almost anyone. Nonetheless, the safeguard here is thatcodes of practice that set out in more detail with more ap- you can always revoke your consent any time you like.propriate sub-principles, rules and processes for processing However, some damage may have already been done by thedata with particular regard to their own industry. time you decide to do so.While this is a step forward for Malaysia in acknowledging Furthermore, it is conspicuous, with regards to security,the need for the protection of personal data with the ad- that the Act requires the data user to take “practical steps”vent of new technologies and changing market trends where and not “reasonable steps” to ensure the security of yourpersonal information is a valuable commodity, the Act has a personal data. This may leave open arguments offew apparent shortcomings and limitations. “impracticality” as a defence to the lack of security of your personal data; i.e. they are under no obligation to protect‘Commercial transactions’ your personal data if it is impracticable to do so. It is fore- seeable that data users might even argue that prohibitiveThe Act only applies to personal data in ‘commercial trans- costs prevented them from adequately protecting your in-actions’ only. It would not apply to, for example, religious formation because it was not “practical” to install new andand educational institutions, and non-profit organizations. expensive firewall software, or hire more staff to manageBut a point to note is that it is not easy to draw the line client’s data security, etc. Absurd results may follow if ex-between a commercial and non-commercial transaction. cuses like “We did the best we could, we’re sorry it wasn’t enough” are accepted as a sufficient defence.There is also a ‘media exemption’ whereby personal datamay be published but the publisher must reasonably believe Now more importantly how are you affected? The mostthat the publication would be “in the interest of the public”. common predicament would be does the Act empower meWith so much controversy about the content of blogs and as an individual to take action? If my company is found guiltysocial networking sites which have victimised and vilified as a director am I also liable? If liable, what is the Acts reachprivate individuals, it is unclear how the “in the interest of in terms of punishment?the public” exception would be exercised.The largest omission is however, that the public sector is “… the Act requires the data user tonot at all subject to the provisions in the Act. There is no take ‘practical steps’ and notlaw in the country which limit State abuses of personal datashould it occur. In light of the fact that state agencies hold a ‘reasonable steps’…”lot of very private and vital information like personal data inthe MyKad, income tax returns, criminal records, etc. it can Can an individual enforce his rights against the Databe a point of concern that the State is not regulated by this User in his personal capacity? The simple answer is NO. Despite being coined as Personal “… it is not easy to draw the line be- Data Protection Act, it must be noted that this is not an act tween a commercial and non- that allows you to bring an action in your personal capacity for a purported contravention of the Act. You would have commercial transaction…” to address your complaint to the Commissioner. As at to date such a commission has not been established.Act especially if proposals like the 1Malaysia e-mail takes off. However, pursuant to a report in the STAR dated 21st JuneDisclosure for ‘the purpose or directly related pur- 2011, a new department was being established under thepose’ Information, Communication and Culture Ministry to over- see the implementation of the Act. In the circumstances itAs explained earlier, data collected can only be used or dis- will be some time before the Act comes into play, as theclosed for the purpose of which it was collected or for a Deputy Minister was reported to have said, “As you know,directly related purpose. The data user must give written to establish the department, we need to do everything rightnotice of the purpose of the collection your data to you. and this will take time”. It is estimated that it would only beThey must also give written notice of any related purposes in force sometime next year.or disclosure of the same. You may, however, revoke yourconsent of the use of your data if you are somehow un- What form of penalties exists?happy with the related purpose. Thus, far it seems that yourdata is adequately protected. It would be worthy to note that the Act covers certain pen- alties which can reach up to fines of Ringgit Malaysia ThreeBut there seems to be a small loophole in this provision. Hundred Thousand, Three (3) years jail or both. CEO’s,Instead of revealing the “related purpose”, the data user can Directors and persons who can be deemed as having man-choose to simply obtain your consent for the purposes of agement control can also be jointly and severely liable in adisclosure to a “class of third parties”. The term is a little case where a body corporate is found guilty.bit ambiguous and vague. Provided that the data user makes Legal Cauldron 1 of 2011 | 4
  5. 5. Also an employer or principal can also be found liable forthe acts of their employees and agents in certain instances.The enforcement is undertaken akin to a criminal offencewhere officers (when appointed) will be given powers simi- EVENTSlar to that afforded to our police force. The rights to investi-gate, search and seize is afforded to these officers. Once again the JHJ Family bled for a good cause!ConclusionDespite these few shortcomings, the Act has not beentested yet and it may fare better than expected; enforceabil-ity of legislation has always been supplemented by the wis-dom and good sense of the courtroom judge. While expressprovisions may be lacking, it is a step forward allowing indi-viduals to have their demands met out of fear of the sanc-tions set out by the Act. Data users, in our commercialenvironment it would be wise to consult and seek appropri-ate advice on what the Act means for your day-to-day busi-ness. For Data Subjects, at least we may finally have an ave-nue to put an end to the continued harassment of marketinggimmicks. Our banner for our blood donation event. By Ganesheraj Selvarajah Corporate Department ganesh@jhj.com.my WE CAREInteresting cases:Rahaz Sdn Bhd v Faston Group Ltd [2010] 1MLJ 69:A beneficiary of shares under a trust has no rights in thecompany and cannot enforce any shareholders’ agreement.Bank Islam Malaysia Bhd v Lim Kok Hoe andother appeals [2009] 6 CLJ 22:An Islamic banking loan to purchase property (BBA) is asale agreement and not a money-lending transaction. Itcannot be compared to a conventional loan agreement andcannot be set aside if found to be more onerous than con-ventional loans.Tan Meng Hock v Tan Ming Seng [2010] 1 AMR540:An arrangement within the family to distribute property,etc. will be legally enforceable if it is expressed in writingand registered under the law required for such documents;e.g. stamped and registered at the Stamp Office in the caseof property.Sherinna Nur Elena bt Abdullah v Kent WellEdar Sdn Bhd [2011] 1 AMCR 905There is no invasion of privacy if someone uses a photo ofyou for commercial purposes if the photo was taken in apublic area at a public event. Legal Cauldron 1 of 2011 | 5
  6. 6. MOTOR ACCIDENT - What next? By T. GajendranMotor accidents are unfortunate occurrences that happen for the parties to an accident to attempt to settle on thefrequently. It can happen to anyone, anytime, no matter spot. This is done by one party admitting to the other of hishow careful or prepared one is. Because of the risk of get- fault and offering to pay for the innocent party’s damagesting into a motor accident, it is important to know what you and cost of repairs. This is done to preempt the need forshould do next; how soon you must act; and what you can lodging police reports and perhaps (and thus avoid sum-claim from your motor insurer. mons) or for the sake of expediency and convenience and maybe even, to avoid the guilty party losing his No ClaimMany people are not aware of what to do immediately after Bonus (NCB) from his motor insurer. There is no law thata motor accident because they never expect to get into an prohibits parties in an accident from negotiating a settle-accident in the first place. Hence, even the safest drivers ment.should know what to do in case of a motor accident so thatthey can avoid the many pitfalls that follow, especially when However, a note of caution...! Do not buy into promisesit relates to liability and insurance claims. made by the other driver when they make promises like “paying for your damages if you do not make a police re-Motor accident – no bodily injury port” or “paying you in a few days’ time at an agreed placeWhat are you supposed to do after collision where no or time”, etc. Be alert to false promises. They have evenpersonal injury is sustained? been cases where drivers give false details to avoid conse- quences.Firstly, lodge a police report within 24 hours of the incident.The police will investigate the accident, its cause, the viola-tion of any laws by the parties involved and provide its find- “Do not buy into promises made bying. Usually the party found responsible or liable for causingthe accident (the guilty party) will be cited for an offence the other driver when they makeunder the provisions of the Road Traffic Act or other rele- promises…”vant laws. Depending on the seriousness of the offencecited, the guilty party may be summoned or charged by thepolice. Lesser road traffic offences for which summons are As lawyers, we would always advise you to weigh your op-issued can normally be compounded, meaning that the guilty tions carefully and practically; make your own assessment ofparty is given the opportunity to pay a fine for the offence the situation as it presents itself. Remember, it is alwayscommitted. For more serious offences, the guilty party may prudent to lodge a police report no matter how minor thebe charged and prosecuted in court. accident may have been. Leave it to the authorities to deter- mine the liabilities of the parties and make your claim fromWhat do you need to know before lodging a police report? your insurer. It is also important to note that even whereYou need to observe the accident scene and gather as much you may have settled the matter by the road-side, it wouldinformation as possible. Information such as vehicle registra- not preclude the police from investigating and citing the par-tion number, the type of vehicle model, the place where the ties for any road traffic offences committed.accident happened, how the accident occurred and thedamages involved to the vehicles are important for you Motor accident – with bodily injurywhen lodging a police report. Take pictures using your mo-bile cameras if available. Let the police do the investigation Where there is bodily or personal injury, the rules aboveto figure out who was at fault of the incident. continue to apply except, you need not worry about lodging police report within 24 hours from the accident if you haveOnce the police report is lodged, you should then notify been hospitalized. You may lodge your police report as soonyour motor insurance company that you have met with an as practicable after your discharge from the hospital. Youaccident. You will need to forward a copy of the police re- may sometimes find that the police may have initiated theirport lodged as well. The insurance company would then own investigations even without you reporting the accidentprocess your claim by sending its adjusters and investigators to them. Do not be alarmed and offer whatever assistanceto assess the damages and extent of repairs required. Nor- to aid investigations.mally the guilty party’s insurer would compensate the inno-cent party’s insurer for expenses incurred in indemnifying With regards to personal injury, the attending doctor willthe costs of repairs. produce a medical report. It would be the medical report that sets out the extent of your injuries and the treatmentWhilst the above is the standard practice to be adopted in administered and the prognosis for cure or deterioration.the case of motor accidents, it is usually common practice Legal Cauldron 1 of 2011 | 6
  7. 7. Our advice to you in cases of personal injury is to not settle Compensation For Loss of Incomeany claim by negotiating with the other driver. To pursue ordefend an injury claim, liability and damages must be as- If your injuries are to such an extent that you cannot gosessed. Again, your motor insurer must be notified as soon back to work either for specific period of time or perma-as practicable of the accident. nently, then the law will allow you to claim for that loss of income. To claim this loss of income you will need to showCompensation For Injuries Suffered that you were gainfully employed at the time of injury and what your income was. Then the court will determine yourYou would be entitled to claim compensation for the inju- living expenses (ie. how much from your income was appliedries that you may have suffered. Amongst lawyers this is towards your living expenses). After deducting the livingcalled “General Damages for Pain and Suffering”. The first expenses from the gross income, you will then be able tothing that must be determined before even addressing the claim for loss of net income for the period that you couldissue of what you can claim is who caused the accident. If not work. If for instance you could not go back to work foryou were entirely at fault then you will not get any compen- one year then you will be entitled to claim loss of incomesation whatsoever from the other party. In fact in all likeli- for that one year period.hood, your motor insurer will pay compensation for theinjuries/losses/damage suffered by the other driver/rider. If however you cannot go back to work forever, then theYou may still claim from your other life, health and / or per- law has devised a formula to determine the length of periodsonal accident insurances. you would be entitled to claim the loss of income. The law states that if you are 30 years and below when the accident occurred, then your claim for compensation would be for a “The first thing that must be deter- period of 16 years. As such your claim would be mined… is who caused the acci- Net Income x 12 months x 16 years dent.” If however you were 31 years and above when the accident occurred, then the claim for loss of income would beThere can be situations where both parties may have con-tributed to the accident. In such cases, the compensation Net Income x 12 months xpaid out by the motor insurer will be apportioned based on [ 55 – ( age at time of accident)]the extent of liability of each party. So for instance, let us 2say the quantum of damages for personal injury sustained byyou amount to RM80,000.00; and if you have equally con- Medical Expensestributed to the accident as the other driver (on a 50-50basis), then you will only get half of the assessed quantum of You would also be able to claim for all medical expensesdamages or RM40,000.00. I shall now go on to talk about that you incurred as a result of the accident. However, youwhat you can claim on the basis that you have not contrib- must show proof of the medical expenses incurred like hos-uted to the cause of the accident. pital bills, etc. If you had obtained medical treatment from a private hospital, then you will generally be entitled to onlyHow do we compute how much pain one may have 1/3 of the total medical expenses unless it was reasonablesuffered? to obtain the treatment from a private hospital.In Malaysia, the courts will decide the compensation payable An example of a case I handled personally where the courtsfor a person depending on what injuries he had suffered due held that the treatment received from a private hospital wasto the accident and what are his disabilities arising from that deemed reasonable, was in a circumstance where the victiminjury. Lawyers and Judges will then refer to some set guide- met with an accident very close by to the private hospitallines and precedent where the courts had awarded compen- and the victim was brought there right after the accident.sation for similar injuries. What you can claim will depend What constitutes “it was reasonable to obtain treatment aton:- a private hospital” is subjective and is usually decided on a case to case basis. However the general principle remainsa. the type of injury suffered; that you will get 1/3 of the expenses if you sought treatmentb. the kind of treatment required; at a private hospital after the accident.c. the extent that the injuries or disabilities; Other ExpensesRecently, a Compendium of Personal Injury Claims, draftedby the Malaysian Bar and approved by the Judiciary, was You will also be able to claim the following expenses in-introduced in the courts in January 2011 as a guide for curred provided you have documents to prove the ex-judges and lawyers in determining the quantum of damages penses:-in accident cases. Prior to this, there was no uniformity inawards for similar injury claims in courts in the various 1. Claim for transport expenses incurred by your family tostates. Now, it has certainly made awards a little more uni- visit you at the hospital for the duration of your admissionformed. for treatment; Legal Cauldron 1 of 2011 | 7
  8. 8. 2. Claim for your transport expenses to and fro the hospital for any follow up treatment;3. Cost of any future medical expenses that you may incur NEWSFLASH as a result of the accident; We would like to proudly announceThe above is the general position of what you can claim inthe event you were injured in an accident and where you another strategic alliance between:were totally not liable for the accident.I hope that with this brief overview on what you should dowhen meeting with an accident, you would be better in-formed in dealing with the unpleasant scenario of an acci-dent.Drive safe! WE CARE By T. Gajendran Conflict Resolution Jayadeep Hari & Jamil Advocates and Solicitors Department gajen@jhj.com.my WE CARE and MORE EVENTS The Man United and Liverpool factionswithin the firm decided to battle it out one fine morning in JHJ’s Futsal Day. With an alliance with one of the top and most comprehensive legal firms in China, JHJ is now able to help you penetrate the Chinese market that has eluded many despite the abundance of opportunity being the world’s second largest economy. Now if you have ever thought of ex- There was much tomfool- No amount of planning panding your business to China, JHJ is ready to ery… even among Hari could save the Man U help and give you the assurance that you need to and Jayadeep. team. see it through. Shanghai Promise’s expertise in- clude: • Corporate Services • Intellectual Property • Litigation & Arbitration • Foreign Direct Investment • Outbound Investment • Banking & Finance Sathisan reveling in the Liv- • Real Estate erpool victory, despite scoring no goals. In an extremely harsh competitive environment where the risks are great and the stakes are high, There was an incident involving the Knowledge JHJ is proud to say that with this alliance, we can guy and a skirt. give you peace of mind because We Care. Legal Cauldron 1 of 2011 | 8
  9. 9. EXECUTION OF WILLS - Why you must make one. By ThaneshmohanWHAT IS WILL? • understand the nature of the business in which he is engaged;A will is an effective instrument for the constructive ar- • have a recollection of the property he intends torangement of a man’s estate and affairs. It enables a person dispose;to settle his estate for his loved ones, and yet allow him the • have a recollection of the persons who are to beflexibility to alter its terms, as the passage of time changes the object of his estate; andhis attitude towards the needs and requirements of his • have a recollection of the manner in which hisloved ones. It also enables a person to effectively direct the property is to be distributed between the benefici-management and distribution of his assets after his death. aries.A will is a declaration made in the prescribed form of the The test of ‘testamentary capacity’ applies across theintentions of a person, called ‘the testator’, with respect to board against a testator, is whether he is well or suf-the disposition of his property and/or any other matter fering from an impairment of any kind (including thewhich he wishes to take effect on or after his death. A will mind) at the time of making the will.is revocable at any time before the death of the testator. 3. meet all the criteria laid down in the section 5 of theSection 2 of the Wills Act 1959 defines a will as ‘a declara- Wills Act 1959, which provides inter-alia that:tion intended to have legal effect of the intentions of a testa-tor with respect to his property or other matters which he • it must be in writing;desires to be carried into effect after his death’. • it must be signed at the foot or end by the testa- tor, or some other person in his presence and byREASONS FOR A WILL his direction; • it must be so signed by the testator in the pres-A will is most commonly utilized for the purpose of distrib- ence of two or more witnesses present at theuting the testator’s property in accordance with his wishes same time; andupon his death. It is, however, also utilized for the following • it must be attested and subscribed by the wit-purposes:- nesses in the presence of the testator but no form of attestation is required. • to appoint a person or persons whom the testator trusts as executor or executors to administer the es- Additional directions as to the execution of Will: tate in accordance with the wishes set out in the will; • to make provision for the guardianship of minor chil- 1. If the will consists of several sheets it is appropriate, dren; though not essential, that the testator sign each sheet, • to appoint trustees where a trust arises under the will; for the purpose of identifying it and of preventing in- • to revoke previous wills and/or codicils; terpolation. • to give directions as to whether the testator wishes to be cremated or buried; 2. In addition to the signature at the end, the testator • to make the administration of the testator’s estate should sign , his name or initials in the margin oppo- more convenient than it would be in the event of an site to any erasure or alteration which may have been intestacy; made before the execution of the will. • to avoid dispute among the legal heirs; and • to avoid fraud 3. The signature at the end must be made or acknowl- edged by the testator in the presence of two witnessesMAKING A VALID WILL present together and they should also sign their names under the attestation clause.To make a valid will a person (the Testator) must:- 4. No person to whom or to whose wife or husband any 1. be aged 18 years or above (as stated in Section 4 of beneficial devise or bequest is made by the will should the Wills Act 1959); be an attesting witness, otherwise such devise or bequest is rendered void, and a trustee who is a law- 2. have the ‘testamentary capacity’ to execute a will. i.e. yer and is authorised by the will to charge profession- the Testator must: ally is precluded from doing so if he attests the will. Legal Cauldron 1 of 2011 | 9
  10. 10. 5. No alteration must be made after it is executed. Any funeral expenses and administration shall be distributed as change must be effected by a new will or codicil, which follows:- must be executed in the same way as a will, is re- quired to be executed. 1. If a spouse dies intestate leaving surviving spouse and issues (no parents), the surviving spouse shall be enti- 6. To facilitate the proof of the will, the occupation and tled to one-third of the estate, whereas the remain- place of abode of each of the witnesses should be der two thirds of the estate will be distributed equally added. among their issues. 2. If there are no surviving issues, the surviving spouse ROLE OF THE LAWYER shall be entitled to only one-half of the estate leaving the other half to be distributed to his/her parents.A will is one among many of the existing methods of overallwealth arrangement applied by legal and financial advisers 3. If there is no surviving spouse, the surviving parentsupon the death of a Testator. The Testator will generally shall be entitled to one-third of the estate leaving thehave a rather vague idea of what he intends. The Lawyer will two-third to be distributed to his/her surviving issues.first of all, seek to determine the Testator’s intentions. Thisis done by drawing attention to the following matters:- 4. If a spouse dies intestate leaving a surviving spouse only (no issues and parents), the whole of his/her • the persons whom the Testator wishes to benefit estate shall go to the surviving spouse. (called ‘the beneficiaries’); • the type or amount of that benefit; and 5. If a person dies intestate leaving a surviving issue only (no spouse and parents), there the whole of his/her • the circumstances, if any, in which the beneficiaries are to receive that benefit. estate shall go to the surviving issues. 6. If a person dies intestate leaving a surviving parentsThe Lawyer will then seek to clarify the Testator’s inten- only (no spouse and issues), there the whole of his/tions by envisaging different situations/eventualities and as-certaining whether, and to what extent, the Testator wishes her estate shall go to the surviving parents.to make provision in the event of such situations/ 7. If a person dies intestate leaving a surviving spouse,eventualities occurring. issues and parents, the surviving spouse and parents shall be entitled to one-fourth of the estate respec-Equipped with this knowledge, and taking into account the tively leaving the one-half to be distributed to his/hertax repercussions, the Lawyer will determine the best surviving issues.means to achieve the Testator’s intentions. Further, exactand concise wordings have to be utilized in setting out theintentions of the Testator. This is because the construction And finally, in the event there is no surviving wife or parentof words used in a will is governed by complex rules. Failure or issue or sibling, etc, the estate would vest in the Govern-to appreciate these rules may result in imprecise wordings ment.being utilized and the Testator’s intentions not being real-ized.A will is viewed ultimately as one’s last deed and word and “… an improperly drafted or exe-an improperly drafted or executed will would lead to unde- cuted will would lead to undesired re-sired results including potential litigation and consequenthardship for loved ones. Hence, it is important to seek pro- sults…”fessional advice when writing a will. THE LAW OF INTESTACY WHY MUST YOU MAKE A WILL.It has been seen that a will is an effective instrument utilized Having said so much, it is imperative that one makes a will.by a testator of having his estate distributed upon his death Asian culture makes it taboo to talk about death but onein accordance with his wishes. must be rational enough to broach the subject because in- testacy will be a long, arduous and costly procedure espe-Where a person dies without having made a will or cially if disputes arise. A basic will does not cost much to do“intestate” as we refer to it, his estate will be distributed in and contrary to popular belief, wills are not only for theaccordance with provisions of the Distribution Act 1958. very rich; if you have, for example, a house, a car, shares orHis wishes, whatever it may have been, would not be re- cash in banks it is recommended that you make a will.garded. If you care about what you have made with your effort, es-Section 6 of the Distribution Act 1958 (Amended in 1997) pecially if you work hard to provide for your family, makinginter alia provides that if any person shall die intestate, all a will is crucial especially if you have dependants.the property of the deceased person after the payment of Legal Cauldron 1 of 2011 | 10
  11. 11. Whether it is property or a business, without a will, thelegal tussle that can ensue from each party attempting toprove their inheritance is not pretty in the least, and youmay even find people you did not at all expect, also fighting MORE EVENTSto have a share. Sadly, this is why one’s affairs do not endeven in death. If you care about the harmonious relation- JHJ Gotong Royong 2011ship, at least, among your own immediate family, you wouldbe doing them a disservice by failing to make a will.This is only a “typical” scenario which most people, withoutany legal knowledge, would already imagine. Many couplestoday, opt not to get married, many for very sound reasonsbut the law unfortunately does not readily recognize therights of, for example, a co-habitant. Live-in couples loveeach other just as married couples do but without a will youmay leave the person you love the most hanging in despairand desperation while the law proceeds to give your prop-erty to a relative for whom you may not even have theslightest concern for.If you have built a business or a company and wish for yourchild, or whoever, to succeed you, or even prevent yourchild from succeeding you but instead benefit from it undera trust, then failing to make your intentions clear in a will orotherwise is disastrous. Stanley cleaning out the storeroom. He was surprisingly very adept with domestic chores.Everything considered, it is just much more prudent tomake a will even if you feel you do not have much property “… failing to make your intentions clear in a will… is disastrous.”to dispose. You need to find the determination to talkabout the subject and if necessary, gather your family andbeneficiaries to discuss this matter with them. They mayrubbish your concerns as they do not feel comfortablethinking about your death. In that case, count your blessingsas you have a family that truly loves you but express tothem that you only want to avoid future complications andit is merely a small but necessary chore. Yes, even Jayadeep was not spared from helping out in JHJ annual spring cleaning effortsThus in conclusion it is imperative that one makes a Will.However in view of the intricacies of drawing up a Will andthat you must be well acquainted with the rules laid down inthe Wills Act 1959, it is recommended to avoid the Willbeing rendered ineffective or invalid that you consult andappoint a lawyer when you are ready to draw up your Will. By Thaneshmohan Conflict Resolution Department thanesh@jhj.com.my WE CARE Hari helped too. Well… sort of. Legal Cauldron 1 of 2011 | 11
  12. 12. DIVORCE - The end of family life? By Shobana PadmanathanDivorce has been around for thousands of years and was such matters and who do not need a judge to make thosecommon among rulers in the medieval age. Various laws and decisions have an “uncontested” case. Some divorcing cou-customs governed divorce in ancient times. In present day ples seek mediation instead of litigation in order to savesociety, divorce has become increasingly common. Many time and avoid any hassle. The mediator, a qualified butmay believe that divorce is not a social norm or common neutral party, facilitates agreement on the divorce terms.practice in Malaysia, a country known for its traditional fam- This however is not applicable in issues of control, intenseily values and strong religious foundations. Surprisingly, in conflict or domestic violence.this new millennium, divorce has become a negative socialtrend that is quickly spreading in Malaysia. Before parties can file joint petition for a divorce by mutual consent, the following requirements must be fulfilled; i.e.The Malaysian law governing this is the Law Reform the marriage must have been registered or deemed regis-(Marriage and Divorce) Act of 1976. Malaysian law tered under the Act or a law that provides for monogamousdoes not allow a divorce unless a couple has stayed married marriage, both parties must be domiciled in Malaysia at thefor 24 months or more. Only after that they can consider time the petition is presented for divorce, parties must havefiling a legal separation. However, legal separation does not been married at least two (2) years at the time the petitionlegally end the marriage as during this period, re-marriage is is presented for divorce, unless the Court grants specialnot allowed. The only leeway is that the couple is no longer permission [parties may apply to Court for such special per-obliged to live with his or her spouse under one roof; how- mission but parties must show that their case is one of ex-ever, they are required to file a petition for divorce after a ceptional circumstances or hardship] and parties must showdecree of separation is granted. in their petition that their marriage has irretrievably broken down.The exception to this rule is when the marriage has brokendown irretrievably, and then divorce is granted. This hap-pens when one of the partners commit adultery, domesticviolence, and unreasonable behaviour and how this has up- “… parties must show that their mar-set the other partner and has made it difficult to stay mar- riage has irretrievably broken down.”ried, or when one partner has been separated from or de-serted the other for at least 2 years before starting divorceproceedings. In a divorce petition, the parties may apply for divorce, cus- tody of and access to the children, maintenance for the wife“Malaysian law does not allow a divorce and children, division of matrimonial property; and or costs of the proceedings. unless a couple has stayed married for 24 months…” A married woman is entitled to maintenance from her hus- band for herself and their children to maintain themselves during the marriage without having to wait for the divorceParties may petition for divorce if their spouse has con- hearing in the Court. An illegitimate child is also entitled toverted to Islam. The petition can only be presented three claim maintenance from his/her father.(3) months from the date of the conversion. However, theyneed not have been married for two (2) years before filing When making a maintenance order, the Court normally willthe petition. take the following circumstances into consideration; i.e. the husbands means, the familys financial needs such as foodDivorce cases are identified as “contested” and and lodging expenses and the childrens education, the wifes“uncontested”. “Contested” cases are those in which the physical or mental disability; and the standard of living en-couple cannot agree on how to work out issues such as joyed by the family before the husband neglected or refusedassets, child support and alimony. Couples who agree on to provide maintenance. Legal Cauldron 1 of 2011 | 12
  13. 13. Matrimonial property is the property both parties acquire should always be a measure of last resort. In fact, an attemptduring marriage and it also includes the property owned by at reconciliation is compulsory and one cannot exempt hisone party before the marriage, but to which there has been or herself from this requirement by referring his or her mat-substantial improvements made by the other party or by rimonial difficulty directly to the court just because he orjoint effort during marriage. Matrimonial assets are not only she does not want to seek reconciliation (see Chin Pei Leelanded property but also cars, shares, savings, unit trusts, v Yap Kin Choong [2010] 4 CLJ 473). Divorce underinsurance policies, EPF balances, club memberships, etc. Malaysian law, while being as clinical as possible to provideParties claiming for a share of the matrimonial assets have any possible allowance for reconciliation, is still a messyto make an application for ancillary relief. process, not just logistically but emotionally as well.When granting a decree of divorce, the Court has the The list of effects of a divorce on people runs long. No mat-power to order the division of matrimonial property be- ter how inexpensive the proceedings are or how necessarytween the parties or to sell such property and then divide the split seems to be, divorce always comes at an excruciat-the proceeds of the sale between the parties. In making ing price. But if it is indeed inevitable, being well-equippedsuch an order, the Court will consider the extent of the with the knowledge of the legal process does help ease thecontribution made by each party whether in the form of painful effects divorce can have on people.money, property or work towards the acquisition of theassets and the needs of the minor children, if any, of themarriage. Subject to these considerations, the Court tendsto award equal shares to both parties. Where such prop-erty is acquired by the sole effort of one party only, theCourt will consider the extent of the contribution made by By Shobana Padmanathanthe other party who did not acquire the property, to the Conflict Resolutionwelfare of the family e.g. keeping the house clean, cooking Departmentand generally, looking after and caring for the family; and the shobana@jhj.com.myneeds of the minor children, if any, of the marriage. WE CAREThe needs of the minor children are one of the factors thatthe court has to consider in dividing the property. The rea-son is mainly because besides the parties themselves, thechildren are directly affected by the divorce and may suffer NEWSFLASHemotional trauma when their parents break up. To minimisethe effect of divorce on children, the law emphasises thatthe childrens rights or interests should be protected or atleast their needs are adequately considered in dividing theproperty. Normally, the parent who is given custody of thechildren is allowed to keep the matrimonial home so thatthe children can continue to live in the house with minimal WE CAREdisruption to their daily routine after the divorce. Jayadeep Hari & JamilAt the hearing of the divorce petition, if the judge is satisfied Advocates and Solicitorsthat parties have legal ground for divorce, the judge willgrants a Decree Nisi which will be made absolute after a is proud to announce to opening of its lat-certain period usually in three (3) months. The Decree Nisi est and newest branch in Melaka. Pleasewill set out the terms and conditions of the divorce. Duringthis three-month period parties cannot re-marry and/or find our new Melaka Branch at:either party can still show cause as to why the marriageshould not be dissolved. At the end of the three-month or No 54-1, Jalan TU 2,such period as the Court orders, if no such cause is shown, Taman Tasik Utama,the Decree Nisi is made absolute and the marriage is 75450 Ayer Keroh,thereby legally dissolved and parties are free to remarry ifthey so desire. Melaka.Nonetheless, it is the writer’s humble opinion that divorce T: 06-234 7330 | F: 06-234 4800 Legal Cauldron 1 of 2011 | 13
  14. 14. ANNOUNCEMENT!JHJ 360o STUDENT ATTACHMENT PROGRAMME Involvement in activities outside of the classroom is pre- ferred; be it sports, social work, music and anything in be- STUDENT tween. 360o ATTACHMENT Remuneration: Attachment students are remunerated at RM10 per hour. PROGRAMME Career Advancement: At the end of the program, students will be JHJ is proud to announce that given an individual session with a partner we will be launching the attach- who will impart valuable career advancement ment programme in September. advice based on a 9-month assessment and We have discussed, debated, the student will also receive a certificate of studied, analyzed, and discussed completion. some and we have finally come up with a programme that we What students can expect to learn:are confident will be of great benefit to the attachmentstudent. We believe a well-rounded lawyer with wholesome knowledge is a better lawyer.Purpose: Thus we designed the program around theThe program is geared toward moulding pre-chambering main areas of practice under our four depart-students toward practical exposure and competency in the ments:practical aspects of being a lawyer in three main practiceareas: Corporate Department: 360 o Our corporate department is involved from the initial pointDuration: of promoting and incorporating a company, its day to day The program will be for a duration of nine management, and right through to the winding-up of a busi- months to facilitate effective learning and to ness. In between all that, there are issues concerning legal build a strong professional foundation. How- risk management, due diligence, vetting, reviewing and ever, the program is flexible and students are drafting agreements, and many others. allowed to plan their working hours as long as they complete 360 hours that duration; an Conflict Resolution Department: average of only 2 hours a day. Although we restrict ourselves only to civil litigation, our conflict resolution department nonetheless handles a vastThis avoids any disruption to the student’s classes and array of cases. From running down cases to medical negli-studies and he/she is of course allowed to take leave for gence, from trade disputes to insurance matters, and fromexams. breaches of contract to industrial relations matters, we have argued cases with the most extraordinary facts usingFormat: extraordinary arguments. The program is “task-based” and is guided or Conveyancing Department: supervised by a partner or associate. There Our conveying practice is extensive and covers various will also be a series of small lectures/ aspects of real estate conveyance; from transfers, leases, dialogues by the partners on topics of impor- tenancies, easements to licences. Naturally, we take care of tance. the wide variety of legal documentation involved from gen- eral security documentation to liens, and negative pledges.Eligibility: Knowledge Department: If the student is a public varsity undergrad, Being involved in such wide areas of practice, the need for he/she needs to have successfully completed a knowledge department is essential. Our knowledge de- his/her third year with at least a 2.5 CGPA. If partment generates and nurtures the flow of shared infor- the student is a student from a private insti- mation as an aid to making key decision and as support to tution, he/she needs to have graduated with the various departments. a second class lower in your LLB. Legal Cauldron 1 of 2011 | 14
  15. 15. JHJ outside work Legal Cauldron 1 of 2011 | 15
  16. 16. This is a publication produced by the JHJ Knowledge Department. For any inquiries, please do not hesitate to contactus: T: 03-2096 1478 | F: 03-2096 1480 | E: kd@jhj.com.my | W: www.jhj.com.myPublisher: Messrs Jayadeep Hari & Jamil, Suite 2.03 (2nd Floor), Block A, Plaza Damansara, Bukit Damansara, 50490 KL.Printers: Marshal & Co, D3-1-15 Solaris Dutamas, No 1 Jalan Dutamas 1, 50480 KL. WE CARE Kuala Lumpur . Petaling Jaya . Kota Bharu . Melaka

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