The burden of proof for the validity of a will lies with the propounder, especially where allegations of forgery are raised.

[1] This appeal came up before us for hearing relating to a will. We heard the submissions of the parties and we reserved judgment. This appeal came from two suits in the High Court which are Suit No MTJB- 22-765-2007(2) and Suit No No MTJB-22-65-2008(2). These cases were consolidated and in consequence only one notice of appeal was filed. As a result, we maintain reference to the original suits of the parties for purpose of the reliefs sought.

[2] The case No MTJB-22-765-2007(2) (hereinafter referred to as '1st case') by Ong Cheng Guan (1st appellant) and the plaintiff in the High Court. He had challenged the will of Ong Eng Bee (the deceased) inter alia on the grounds of forgery. The defendants were the executors and/or beneficiaries under the will and the plaintiff is a beneficiary to Ong Eng Bee's Estate in the absence of the will. One of the properties of the deceased was rented out to the 2nd appellant (No MTJB-22-65-2008(2) hereinafter referred to as '2nd case') . That property by the will has passed to the 2nd defendant, ie Ong Sze Peow.

[3] Ong Sze Peow as the plaintiff in the 2nd case has filed an action against the 2nd appellant asking to disclose all the rents he (the 2nd appellant) had paid to the 1st appellant on the belief he (the 1st appellant) was the rightful owner of the deceased's property. The trial Court has found in favour of the 2nd defendant and in consequence the 2nd appellant as a tenant is appealing against the decision and the respondent is only the 2nd defendant in the 1st case.

Preliminary Jurisprudence On The Will

[4] It is trite that when a person alleges forgery, the burden of proof is on him. However, the jurisprudence relating to the will is slightly different. We will explain this further.

[5] When a person challenges the will, the Court as a matter of practice will first invite the defendants who are the propounder of the will to prove:

(i) There was due execution of the will;

(ii) Dispel any suspicious circumstances surrounding the making of the will.

Once the Court is satisfied with the evidence adduced to all the related issues, then only it becomes incumbent upon the plaintiff who challenges the will to prove extraneous vitiating element such as undue influence, fraud or forgery, etc Support for the proposition is found in a number of cases and to name a few are as follows:

(i) Kaw Cheng Poon & Ors v. Khaw Cheng Bok & Ors, ;

(ii) Lee Ing Chin & Ors v. Gan Yook Chin & Anor, CA; Gan Yook Chin & Anor v. Lee Ing Chin & Ors; ; [2004] 6 AMR 781 FC .

[6] Learned author Sarkar on Evidence, 14th edn Vol 2 at p 1396 has this to say:

"Wills.-The law has been thus stated in two well-known cases: "These rules are two; first, that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite suspicion of the Court, and call upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased" [Barry v. Butlin, 1938, 2 Moo PC 480, 482: 46 RR 123 (relied on and explained in Harmes v. Hinkson, A 1946 PC 156: 50CWN 895) and Tyrrel v. Painton, 1894 PD 151: 10LT453. See Suryanarayana v. Suramma, A 1947 PC169; Bai Gangabai v. Bhagwan, 29 B 530 PC: 9 CWN 769: Gomtibai v. Kanchhedilal, A 1949 PC 272). "Those who propound a will must show that the will of which probate is sought is the will of the testator, and th