The High Court of Sarawak lacks jurisdiction to grant or revoke probate under the Administration of Estate Ordinance, contrary to the provisions of the Rules of Court 2012.

[1] On 2 August 2022, the Citor herein procured a citation issued by the Senior Assistant Registrar under O 72 r 7 and 8 of the Rules of 2012 to the 1st Citee.

[2] The citation required the 1st Citee to bring into and leave in the Registry of the High Court, Sibu, the probate of the last Will and testament of Ching Kuok Fei (WN KP.860613-52-5281) [the deceased] granted on 13 September 2021 to the 1st Citee by the 4th Citee, who is the Probate Officer of the District Office, Sibu in order that the Citor may proceed for it to be revoked.

[3] The citation was purported applied for by the Citor based on his affidavit verifying statements of fact whereby the Citor alleged that the Will concerned for which the probate was granted by the 4th Citee was procured by fraud, or undue influence and/or executed by the deceased under suspicious circumstances, also that the deceased was without testamentary capacity when he executed the Will concerned, and that the Will concerned was null and void and that the probate so granted upon the will ought to be revoked by the Court.

[4] The issue for determination by this Court is whether O 72 of the Rules of the High Court 2012 has any application to the State of Sarawak and whether the citation procured by Citor herein is valid. For Semenanjung Malaysia, the Probate and Administration Act 1959 gives the High Court in Malaya the jurisdiction and power to grant letters of administration in the case of a deceased person who died intestate or probate in the case of a deceased person who died with a will.

[5] For Semenanjung Malaysia, the Probate and Administration Act 1959 requires any application for grant of representation whether by letters of administration or probate as the case to be made to the High Court in Malaya.

[6] By s 34 of the Probate and Administration Act 1959 , the High Court of Malaya is also given power to revoke any probate or letters of administration or to amend them for any sufficient cause.

[7] Section 41 of the Probate and Administration Act 1959 also gives the High Court in Malaya the power, upon an application of any interested party, if it appears that there is reason to believe that any will or other testamentary document of a deceased person is in the possession or under the control of any person, or that any person has knowledge of the existence of such a will or document, order that the person to produce the will or document at the Registry within certain time, or attend at a time named before a Court, for the purpose of being examined in relation to that document.

[8] However, the Probate and Administration Act 1959 has no force and application in the State of Sarawak.

[9] In the State of Sarawak, the applicable law is the Administration of Estate Ordinance (Sarawak Cap 80). The Ordinance vests the jurisdiction and power to grant probate and letters of administration to the Probate Officer. The Courts in the State of Sarawak has no original and concurrent jurisdiction with the Probate Officer to grant or revoke a probate or letters of administration.

See: the definition of Probate Officer under s 2 and also s 3, 8, 9, 11 and 15 of the Administration of Estate Ordinance (Sarawak Cap 80).

See also: Ong Ka Kim v. Wong Sing Kiong & Ors, 1997 MarsdenLR 2314 ; Lim Siok Luan v. Theresa Chin Kim Thye; Chieng Soh Geok & ors v. Chieng Sing Huat; [1999] 4 MLJ 526; [1999] 7 CLJ 135; [1999] 4 AMR 4680; Rafeah Binti Baker v. Wahi Bin Midin and Vivien Teo Lian Eng v. Ang Leng Tat; [1978] 1 MLJ 102, CA (Brunei)

[10] Section 6 of the Administration of Estate Ordinance (Sarawak Cap 80) provides that:

"6. A grant of Probate shall not be issued unless:

(a) the original will or, i