Compliance with Order 72 Rule 7 of the Rules of Court 2012 is mandatory for probate actions; failure to comply renders the action a nullity.

JUDGMENT

Azimah Omar JCA:

A. Introduction

[1] This Appeal before us was filed against the decision of the learned High Court Judge ("learned HCJ") in Shah Alam on 31 May 2022 dismissing the Appellants/Plaintiffs' writ action with costs of RM15,000.00.

[2] The Appellants/Plaintiffs in their writ action had essentially challenged the validity of the will executed by their late father by primarily contending that there were suspicious circumstances surrounding the making of the will and had alleged that the Respondent/Defendant had exercised undue influence on the testator (the parties' late father) in the execution of the will.

[3] With the above brief summary of the dispute between the Appellants/ Plaintiffs and the Respondent/Defendant, the appeal before us basically concerns the last will and testament ("said Will") left by Maruthamuthu a/l Murugan ("the deceased") on 4 December 2005. In the said Will, the deceased bequeathed a piece of land held under Hakmilik PM4194 (formerly known as LM1503), Lot 4329, Tempat Sungai Kelambu, Mukim Tanjung Dua Belas, Daerah Kuala Langat, Negeri Selangor Darul Ehsan ("the said Land") measuring at 1.709 hectares solely or exclusively to the Respondent who is one of the deceased's seven children.

[4] Prior to the demise of the deceased, the said Will was executed by the deceased and read before interested parties (inclusive of the deceased, the deceased's wife, Respondent and the 4th Appellant (SP2) and the 4th Appellant's daughter (SP1)) on 4 December 2005 in which the deceased's intention (under the said Will) to make the Respondent the sole proprietor of the said Land was declared and informed to the parties in attendance of the reading.

[5] The said Will had neither mentioned any trust nor stated that the Respondent's sole proprietorship was under a trust for the benefit of the other siblings.

[6] For many years since the open execution, declaration and reading of the said Will, there was never any protest mounted against the Respondent's impending sole proprietorship and entitlement over the said Land.

[7] Upon the demise of the deceased on 8 May 2009, the Respondent had thereafter applied for a Grant of Probate to be issued under his name as the executor of the deceased's estate (as per the said Will). Subsequently, as intended by the deceased in his said Will (vide the Grant of Probate dated 16 April 2014 ("Probate Order")) the said Land was thereafter transferred to the Respondent and registered under the Respondent's name being the sole beneficiary of the deceased's residual estate under the said Will.

[8] Only after thirteen (13) years later, that the Appellants in an attempt to impugn the validity of the said Will (which consequentially impacted the validity of the Probate Order which was standing in full reliance of the said Will), filed a writ action without first complying with the initial procedures prescribed under the clear provision of O 72 r 7 of the Rules of 2012 namely, the requirement of an issuance of a citation by the Court Registry.

[9] In any case, to have a clear understanding of the dispute between the parties regarding the said Will, it is only apt at this juncture for us to briefly set out the background facts that gave rise to the writ action.

B. Background Facts Of The Case

[10] The Appellants and the Respondent are siblings. The deceased and his late wife (Sallamal a/p Pathan) (the mother of the Appellants and Respondent) lived with the Respondent at No 86 Jalan Rambutan 6, Taman Bakti Sungai Manggis, 42700 Banting, Selangor. Amani A/P Maruthamuthu ("the 4th Appellant / SP2") lived close by at No S82 Jalan Rambutan 6, Taman Bakti Sungai Manggis, 42700 Banting, Selangor.

[11] The deceased had executed the said Will on 4 December 2005. The said Will was prepared by a Will-Writing firm known as Rockwills Corporation Sdn Bhd ("Rockwills"). It was never disputed that at the time of execution and open reading of the said Will, there were seven (7) people in attendance, namely: