Mokhtar Sidin JCA:

[1] Briefly, the appeal before us concerns the decision of the High Court in allowing the respondent's claim to probate in respect of the alleged will of Eu Chin Eow, deceased, dated 26 November 1990 and in refusing the appellants' counterclaim that the alleged will is invalid and that the deceased died intestate. The said Eu Chin Eow (the deceased) died on 10 December 1995 aged 80 years old, survived by his eldest son Eu Boon Yeap the 1st appellant, his daughter Eu Siew Cheng the 2nd appellant and his wife Ong Sin Kheng, the 3rd appellant. At the time of the deceased's purported execution of the alleged will dated 26 November 1990, the deceased was 75 years old.

[2] The respondent in the present appeal, the plaintiff in the Court below, filed a writ of summons dated 11 September 1996 against the 1st appellant. He is the nephew of the deceased and the statement of claim reads:

1. Plaintif ialah wasi yang dilantik di dalam wasiat terakhir Eu Chin Eow, simati beralamat di No. 3 Jalan Padang Tembak, Pulau Pinang yang meninggal dunia pada l0hb Disember 1995, wasiat tersebut adalah bertarikh 26hb November 1990.

2. Plaintif manafikan kepentingan Defendan yang dinyatakan di Kaveat yang dibuat oleh Peguamcara Defendan bertarikh 13 Mei 1996, sitasi yang difailkan oleh Defendan pada 13hb Jun, 1996 dan Afidavit Eu Boon Yeap bertarikh 13 Jun, 1996 terhadap Petisyen Probet No. 32-66-1996 di Mahkamah Tinggi, Pulau Pinang untuk Harta Pesaka Eu Chin Eow, simati.

3. Oleh itu, Plaintif menuntut:

a. bahawa Mahkamah mengdekrikan Probet Wasiat Eu Chin Eow bertarikh 26hb November 1990;

b. gantirugi-gantirugi;

c. kos-kos; dan

d. relif selanjutnya yang Mahkamah mulia ini anggap sesuai dan suaimanfaat.

[3] The 1st appellant then filed the following defence and counterclaim:

1. As regards para 1 of the Statement of Claim, the Defendant denies that the Plaintiff was lawfully appointed as sole executor and trustee of the Will of Eu Chin Eow dated 26 November, 1990. The Defendant avers that the said Eu Chin Eow died intestate on 10 December, 1995 and is survived by the following beneficiaries:

(i) Ong Sin Kheng - lawful widow

(ii) Eu Siew Hua - lawful daughter

(iii) Eu Boon Yeap - lawful son

(iv) Eu Siew Cheng - lawful daughter

2. Plaintiff further avers that the purported signature of the testator appearing in the said Will is a forgery and that in the premises the Will is invalid and of no effect.

3. As regards para 2 of the Statement of Claim, the Defendant avers that the said Caveat dated 13 May, 1996 was entered to ensure that no grant was made without notice to himself and that the said Citation dated 13 June, 1996 was a necessary step taken by the Defendant in order to have the Probate granted to the Plaintiff on 13 May, 1996 called in, revoked and declared null and void in law.

4. Save and except as is expressly admitted herein the Defendant denies each and every allegation in the Statement of Claim as if the same were herein set forth seriatim and specifically traversed.

5. The Defendant therefore prays the claims be dismissed with costs.

COUNTERCLAIM

6. The Defendant repeats paras 1 to 5 of the Defence and counterclaims against the Plaintiff as follows:

(i) A declaration that the Will dated 26 November, 1990 is null and void in law on the ground of forgery;

(ii) A declaration that Eu Chin Eow died intestate and is survived by the lawful beneficiaries as pleaded in para 1 of the Defence;

(iii) Damages;

(iv) Costs;

(v) Further or other relief.

[4] The 2nd and 3rd appellants filed their defence and counterclaim dated 30 July 1999 which reads:

1. Save and except that the Plaintiff was named as the sole executor and trustee in the alleged last will and testament dated 26th November 1990, the 2nd and 3rd Defendants deny that the said Eu Chin Eow, deceased had ever executed the alleged last will and testament or at all.

2. Save and except that the 1st Defendant has lodged a caveat against the issuance of probate in respect of the alleged last will and te