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2021 MarsdenLR 1805
HIGH COURT MALAYA MUAR
LOK SWEE TIONG – Appellant
Versus
LOK SIEW CHOO & ORS (ENCL 44) – Respondent
[Civil Suit No: JB-32NCVC-190-08/2019]
The Court clarified that contested probate proceedings must comply with specific procedural requirements and cannot be dealt with summarily, emphasizing the need for appropriate legal procedure to address all grounds of challenge effectively.
Headnote:(A) Probate and Administration Act 1959 – Order 71 Rules of Court 2012 – Contestation of a Will – Application for Grant of Probate was contested by Caveators who withdrew their objections but later reversed their position. The Court examined the requirements for contested probate proceedings, noting that the Court cannot decide on non-contentious matters when they become contested. (Paras 10, 12, 40, 51)
(B) Contesting a Will – Principles guiding the validity of a Will when contested include the burden on the propounder to dispel suspicions surrounding execution and the need for independent testimony. (Paras 13, 14, 22)
Facts of the case: The Applicant sought a Grant of Probate for the Estate of Tan Tau, deceased, while multiple Caveators challenged the purported Will and its execution on grounds of lack of transparency and claims of undue influence.
Findings of Court: The matter was deemed appropriate for conversion from an Originating Summons to a Writ Action to properly address all issues and evidence involved.
Issues: When is a challenge considered valid? Can the application proceed summarily? How should it be treated procedurally?
Ratio Decidendi: The Court emphasized the necessity of adhering to procedural rules when dealing with contested probate matters to ensure justice is done.
Result: The application was converted into a Writ Action.
JUDGMENT
(Enclosure 44)
Introduction
[1] This is an application vide Encl 44 pursuant to O 71 rr 37 & 40 Rules of 2012 for an Order of the following:
i. The Caveats entered against the Estate of the Deceased Tan Tau @ Tan Geok Hiang (NRIC 270802-02-5010 / 0067535) by the Caveators (Lok Siew Choo (NRIC: 550416-01-5034) Lok Cheng Hwa @ Lock Siew Hwa (NRIC: 480926-01-5480) Lock Pek Yem (NRIC: 511231-01-5264) Lok Siew Hoon (NRIC: 561206-01-5540) Lok Swee Long (NRIC: 640502-01-5815)(Lock Siew Lang @ Lock Swee Luan (Singapore Passport No E6728655A) be removed
ii. Cost to be borne by the Caveators.
iii. Any other Orders that the Court deems fit and just.
[2] The basis of this application pursuant to Encl 44 was because the Caveators has informed that they do not intend to challenge the application for the Grant of Probate which is the subject-matter of the Originating Summons filed before this Court and that the Caveators were said not to have any basis or right to object to the application for the Grant of Probate by the Applicant.
[3] The Cause Papers are as follows:
i. The Notice of Application (Enclosure 44).
ii. The Affidavit-in-support (Enclosure 45).
iii. The Affidavit-in-opposition (Enclosure 46).
iv. The Affidavit-in-opposition (Enclosure 47).
v. The Affidavit-in-opposition (Enclosure 48).
vi. The Affidavit-in-opposition (Enclosure 49).
Background Facts
[4] Tan Tau @ Tan Geok Hiang (NRIC: 270802-01-5010 / 0067535) ("the Deceased") who used to stay at No 67-6 Jalan Hang Tuah, Taman Khalidi Baru, 84000 Muar, in the State of Johore, died at the age of 91, on 4 November 2018. The Deceased was purported to have left a Will and Last Testament in respect of her Estate ("the purported Will"). The purported Will was said to be executed in 2011. The purported Will was executed and said to be witnessed by 2 persons who are New Lok Hua and Siti Noor Afizie binti Saat.
[5] The applicant is a Malaysian citizen of full age and the son of the Deceased and whose address is No 37 Jalan Putra Indah 3, Taman Putra, Jalan Salleh, 84000 Muar, Johore. He is said to be one of the Executors of the purported Will. The other Executor of the purported Will was Lok Swee Meng (NRIC 530131-01-5033) who passed away on 26 September 2018. Following this turn of events, the Applicant filed an Originating Summons seeking for a Grant of Probate for the Estate of the Deceased.
[6] The Estate of the Deceased comprised of the following:
Immovable Property
Movable Property
[7] The Interveners applied to intervene and was allowed by the Court and they also act as Caveators because they filed caveats against the properties of the Estate because they brought a challenge against the purported Will of the Deceased. Notwithstanding the fact that the Interveners were named in the purported Will, there are other names in the purported Will and hence the Caveators filed an Appearance vide Form 166 and gave the Appearance to a Warning to the Applicant.
[8] There are 6 caveats entered on the properties of the Estate of the Deceased which are as follows:
[9] The 6 Caveators then entered their appearance against the Warnings as follows:
[10] The applicant averred that there was this withdrawal of the interest to pursue the matter which may be enumerated as follows:
a. The 5th Caveator through his solicitors Messrs Tay Kuan Teck & Son wrote to the Applicant's solicitors that he shall not enter any appearance against the Warning (Encl 45 para 5 and Exh "LST-1").
b. The 1st, 2nd, 3rd, 4th Caveators wrote to this Court, that they do not wish to pursue the matter in this Court (Encl 45 para 7 and Exh "LST-2").
c. The 1st, 2nd, 3rd, 4th Caveators through their solicitors Messrs Bhag Sulaiman & Co wrote to this Court, that they do not wish to pursue the matter in this Court (Encl 45 para 8 and Exh "LST-3").
d. After the application to remove the caveats, the 1st, 2nd, 3rd, 4th and 5th Caveators through the solicitors Messrs Bhag Sulaiman & Co reversed their earlier decision as ev
