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2021 MarsdenLR 3283
HIGH COURT MALAYA JOHOR BAHRU
LIM CHENG LIM – Appellant
Versus
LIM BOON CHENG & ORS – Respondent
[Civil Suit No: JB-32NCVC-128-07/2020]
The court established that in contested probate cases, the burden of proof lies with the propounder of the will to verify its validity and the testator's intentions.
Headnote:(A) Rules of Court 2012 – Order 71 and Order 72 – Grant of Probate – Application for Grant of Probate contested by siblings of the applicant, leading to the filing of a Writ of Summons – Court outlines the provisions for contested probate proceedings and the requirements for propounding a will – The onus of proof lies on the party propounding the will. (Paras 25-30)
Facts of the case: The deceased left a Last Will executed on 10 May 2019 leaving the estate to three beneficiaries including the applicant, who applied for a Grant of Probate, contested by the deceased’s siblings.
Findings of Court: The Court cannot decide on uncontested proceedings if the matter is contested and determines that both the originating summons and the writ action should be consolidated.
Issues: The primary issue was whether the application for Grant of Probate should proceed as contested due to the siblings' caveats.
Ratio Decidendi: The court ruled that when a will is contested, the provisions of Order 72 of the Rules of Court must apply, emphasizing the requirement for the propounder to satisfy the court regarding the validity of the will, especially when suspicion arises concerning the testator's intent.
Result: Originating summons stayed and consolidated with the writ action.
JUDGMENT
Introduction
[1] This is an application for removal of private caveats entered against the properties which are part of the Estate of the Deceased Tan Swee Hua (NRIC No 270412-01-5082 / Old NRIC 1578490) / (Death Certificate Number: 075334A) which were done by the following who are the siblings of the Applicant:
i. Lim Boon Cheng.
ii. Lim Poh Ling.
iii. Lim Team Leng.
iv. Lim Heng Soon.
v. Lim Heng Chuan.
vi. Lim Lay Ting.
[2] The Origination Summons (Enclosure1) was for an application for a Grant of Probate for the Estate of the Deceased Tan Swee Hua ("the said Estate") who died leaving a Last Will and Testament ("the said Will"). The Applicant, purportedly a beneficiary of the Estate applied for a Grant of Probate so he could be named as the executor as per the said Will he could execute the purported Will.
The Background Facts
[3] The Deceased Tan Swee Hua died on 2 July 2020 purportedly leaving a Last Will and Testament ("the said Will") leaving her entire Estate to 3 beneficiaries namely:
1. Lim Cheng Ling / Applicant for the Grant of Probate (son).
2. Tay Shiaw Cheng (daughter-in-law).
3. Lim Jia Xin (grandchild).
[4] The Estate consist of the following:
a. One half share of the property that is held under the Title GM 5374 Lot 5840, Minyak Beku Sub District, District of Batu Pahat, State of Johore.
b. Money in RHB Bank which are:
i. Account Number: 3-01026-0062521-0 amounting to RM65,000.00 as at 2 August 2016.
ii. Account Number: 3-01026-007 1063-2 amounting to RM18,212.90 as at 20 December 2018.
c. Gold Jewelleries.
[5] The Deceased was said to leave a Last Will and Testament which was executed on 10 May 2019 and attested to by a solicitor, Mr Allen Yu Chin Aun of Messrs Allen Yu Chin Aun & Co and Mr Guan Hui Ling.
[6] The Applicant then applied for a Grant of Probate so as to execute the Last Will and Testament of the Deceased. The siblings of the Applicant also Issues of the Deceased, entered private caveats against the property that form part of the Estate. They are:
i. Lim Boon Cheng.
ii. Lim Poh Ling.
iii. Lim Team Leng.
iv. Lim Heng Soon.
v. Lim Heng Chuan.
vi. Lim Lay Ting.
[7] The Deceased was staying with the Applicant and his family all the while and they took care of the Deceased until she passed away on 2 July 2020.
[8] Based on the said Will, the Deceased appointed the Applicant as the executor of her Estate and so, the Applicant made the application for a Grant of Probate.
[9] The siblings then entered private Caveat through the presentation number WA-Kaveat-1759-08/2020 on the one half share of the property that is held under the Title GM 5374 Lot 5840, Minyak Beku Sub District, District of Batu Pahat, State of Johore. Hence the Application pursuant to encl 14.
[10] The siblings of the Applicant who are also contesting the said Will of the Deceased and on the 26 January 2021 filed a Writ of Summons and the Statement of Claim (JB-22NCvC-6-01/2021) seeking for the declarations that the purported Will is null and void and that any transfer of property is also null and void.
The Law In Respect Of Contested Will.
[11] To begin with O 71 Rules of Courts 2012 is for Non-Contentious Probate Proceedings. However when the Probate Proceedings becomes contested then r 38 sets in and it stipulates
38. Contested matters (O 71 r 38)
(1) Every contested matter shall be referred to a Judge who may dispose of the matter in dispute in a summary manner or direct that the provisions of O 72 shall apply.
(2) Where a matter is directed to be disposed of summarily the originating summons, if any, shall ordinarily be adjourned into open Court for hearing and the Court may on such adjourned hearing either grant or refuse the prayer in the originating summons or make such other order as may be just.
[12] The principles were illustrated again by the Court of Appeal in Lee Ing Chin & Ors v. Gan Yook Chin & Anor, . At p 63, his Lordship Justice Gopal Sri Ram (as he then was) said:
"We begin with the proposition that there are thr
