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2022 MarsdenLR 3048
COURT OF APPEAL PUTRAJAYA
LEE AH SIN @ LEE SIN KEE – Appellant
Versus
WASUNAN TONRAB & ANOR – Respondent
[Civil Appeal No: J-02(IM)(NCVC)-1527-10/2020]
In probate actions, the burden of proof lies with the propounder to validate a will and address claims of undue influence or lack of testamentary capacity; summary judgment is not a substitute for trial in contentious cases.
Headnote:(A) Wills Act 1959 – Section 5(2) – Summary judgment in probate actions – The appeal involves the validity of a will and proper procedure under O 14 r 1 and O 72 ROC – The JC deemed the 2018 Will valid based on affidavits without a trial for disputed testamentary capacity, undue influence, and suspicious circumstances – The court determined that full trial is necessary to resolve contentious issues. (Paras 1, 3, 79)
(B) Burden of Proof – In probate matters, the burden lies with the propounder to establish validity and dispel any claims of undue influence or lack of capacity – The JC shifted the burden to the Defendant which was improper. (Paras 33, 76)
Facts of the case: The Plaintiffs, daughters of the Deceased, propound the 2018 Will, while the Defendant, the brother, claims the 2005 Will is valid – The Deceased died on 23 June 2019, with disputes over testamentary capacity and alleged undue influence. (Paras 7, 23)
Findings of Court: The JC ruled the 2018 Will valid based on improper summary judgment – Full trial required to examine claims. (Paras 30, 79)
Issues: Validity of testamentary documents, applicability of summary judgment in probate, and burden of proof in establishing capacity and influence. (Paras 1, 61)
Ratio Decidendi: The court emphasized that probate actions must be tested under scrutiny and evidentiary standards at trial, not through affidavits in a summary process. (Paras 78, 79)
Result: The appeal is allowed; the JC's order is set aside with costs.
JUDGMENT
Introduction
[1] This is an appeal by Lee Ah Sin @ Lee Sin Kee ("Defendant") against the decision of the Learned Judicial Commissioner ("JC") of the High Court at Johor Bharu dated 23 September 2020 in a Probate Action, viz Johor Bharu High Court Suit No JA-22NCvC-149-09/2019 ("Suit 149") wherein the JC allowed the Plaintiff's application dated 13 November 2019 (encl 7) filed pursuant to O 14 r 1 of the Rules of 2012 (" ROC ") and granted summary judgment and declared that the Last Will and Testament of Mr Lee Poi Sam ("Deceased") dated 17 July 2018 ("2018 Will") is valid and that the Deceased's earlier Will which is dated 1 April 2005 ("2005 Will"), is revoked. Accordingly, the JC granted Probate based on the 2018 Will. The JC also cancelled Probate Caveat No WA -Kaveat-1824-07/2019 ("Caveat 1824") which the Defendant had lodged in the Central Registry in the Kuala Lumpur High Court based on his interest in the Estate of the Deceased under the 2005 Will.
[2] We are compelled to state that we find it rather unusual that the Plaintiffs, being propounders of the 2018 Will, had moved the High Court under O 14 r 1 of the ROC and sought summary judgment in respect of the reliefs sought in Suit 149, albeit that the validity of the 2018 Will (per the pleadings and affidavits) was challenged by the Defendant on grounds which are said to vitiate the 2018 Will.
[3] At any rate, the first question is whether O 14 r 1 ROC applies to a (contested) Probate Action which is governed by O 72 and consequently whether summary judgment may be entered and probate granted accordingly. If O 14 r 1 applies, then the next question (which will be fact sensitive) is whether summary judgment can be entered and probate granted in respect of an alleged will which is being challenged as being null and void due to the testator's lack of testamentary capacity, the presence of suspicious circumstances surrounding the making of the alleged will and/or that the will was procured through the undue influence of the propounders of the alleged will.
[4] For convenience and ease of reference, we shall refer to the parties by their titles in the High Court, ie Appellant as "Defendant" and Respondents as "Plaintiffs".
[5] In Suit 149, the Plaintiffs were the propounders of the 2018 Will whereas the Defendant was (via his Defence and Counterclaim) the propounder of the 2005 Will.
[6] The Plaintiff's status as propounders of the 2018 Will is significant in the context of the burden to adduce satisfactory evidence to prove that the 2018 Will was (a) executed in accordance with s 5(2) of the Wills Act 1959 and to satisfy the Probate Court's "judicial conscience" that (b) the Deceased had the requisite testamentary capacity at the critical moment when he executed the impugned testamentary document on 17 July 2018 and that (c) there were no suspicious circumstances (as alleged by the Defendant).
[7] The Plaintiffs are the daughters of the Deceased. The Deceased died on 23 June 2019. The Plaintiffs are citizens of Thailand and are residents of that country. The Plaintiffs filed Suit 149 for a declaration that the 2018 Will was valid. They also sought a declaration that the 2005 Will had been validly revoked and was accordingly null and void. The Defendant is the brother of the Deceased. The Deceased had other brothers. Under the 2005 Will, the Defendant was named as the sole executor and beneficiary of the Deceased's estate.
[8] By way of the Defence and Counterclaim in Suit 149, the Defendant challenged the 2018 Will on the grounds that the Deceased lacked the requisite testamentary capacity, that there were suspicious circumstances surrounding the making of the 2018 Will and that the 2018 Will was the product of undue influence by the Plaintiffs.
[9] However, the JC held that based on the affidavits that were filed in respect of encl 7 the 2018 Will was executed in accordance with s 5(2) of the Wills Act 1959 , that it was not proven that the
