A citation is a procedural tool that should not be struck out prematurely, despite concerns over a party's intent to misuse judicial mechanisms.

Lau Eric SAR:

Background

[1] Enclosure 106 is an application filed by the Applicant, Loke Suat Choo, to strike out a citation issued by the Respondent, Loke Yi Lin, under encl 98, pursuant to O 72, r 7 of the Rules of 2012.

[2] The citation requires the Applicant, as executrix of the estate of the late Koay Saw Tin ("the Deceased"), to bring and deposit the Grant of Probate dated 17 July 2013 with the Court registry. Its purpose is to facilitate the Respondent's intended challenge to the Will dated 4 August 2010 ("2010 Will") by asserting the existence of a subsequent Will dated 2 February 2013 ("2013 Will").

[3] The Applicant contends that the Respondent's citation constitutes an abuse of the Court 's process, as the Respondent has previously made multiple unsuccessful attempts to challenge the 2010 Will and revoke the Grant of Probate. The Applicant further argues that these attempts, having been dismissed by the Court of Appeal (COA), render the current citation barred by res judicata.

[4] The Respondent, on the other hand, asserts that a citation is merely a procedural tool to notify the executor of an impending challenge and should not be prematurely struck out, as it does not constitute a substantive claim.

[5] The Deceased passed away leaving the 2010 Will, under which the Applicant was named executrix. A Grant of Probate was duly issued to the Applicant on 17 July 2013. The Respondent claims to have discovered a later will, the 2013 Will, and has previously initiated multiple proceedings to challenge the 2010 Will and revoke the Grant of Probate, including filing a writ probate action in case of PA-22NCvC-50-04/2018.

[6] Following the commencement ot the action, the Applicant tiled an application to strike out the Respondent writ and statement of claim, which was dismissed by the High Court with costs of RM 2,000.00 but subsequently on 27 March 2019, the COA allowed the Applicant's appeal and struck out the writ and statement of claim on grounds of procedural non-compliance.

[7] Respondent then file an application to intervene encl 64 (Application to intervene) under this suit where after hearing the Respondent was allowed by the High Court on 20 February 2020 but subsequently overturned by COA on 2 August 2021, barring the Respondent from intervening into this matter.

[8] The Respondent now again file the citation under encl 98 as a procedural step to challenge the Grant of Probate, leading to the Applicant's application under encl 106 to strike it out.

Issues For Determination

[9] The Court must consider the following:

(a) Whether the citation constitutes an abuse of the Court 's process or is barred by res judicata;

(b) Whether the citation, as a procedural mechanism, can be struck out under O 18, r 19(1) of the Rules of 2012; and

(c) Whether striking out the citation aligns with the broader interests of justice.

[10] A citation under O 72, r 7 is a procedural mechanism designed to compel the executor to deposit the probate grant with the Court registry. It preserves the status quo and facilitates the commencement of a probate challenge.

[11] In Yap Teck Ngian v. Yap Hong Lang & Ors; [2007] 5 MLJ 756 ; 2007 MarsdenLR 37 , the Federal Court recognized that procedural mechanisms like a citation are essential for orderly administration of justice. A citation itself does not determine substantive rights but serves as a precursor to a substantive challenge.

[12] In this case, the Respondent's citation under encl 98 complies with the procedural requirements of O 72, r 8(2).