Chew Soo Ho JC:

[1]Chung Beng Eng, the deceased, died on 28 August 1999 at the age of 77 years while his wife pre-deceased him in September 1998. The plaintiff, the first defendant, Ch'ng Kheng Cheang, Chung Keng Leng, Chung Keng Chew and Chong Yin Cheng are the lawful children of the deceased. The second [2011] 8 MLJ 32 at 38defendant is the daughter-in-law being the wife of Ch'ng Kheng Cheang while the third defendant, the son of Ch'ng Kheng Cheang, is the grandson of the deceased.

[2]The dispute arose when in the existence of a will of the deceased dated 29 August 1997 ('the first will') where the plaintiff and Chung Keng Chiew were the executors and trustees, another will dated 31 October 1998 ('the second will') surfaced after the 100 days prayer of the death of the deceased when the plaintiff was informed by the first defendant on 5 December 1998 that the alleged second will was found among the photographs of their late parents.

[3]The first will was prepared by lawyer Miss Caroline Heah and signed by her together with her mother Pow Khoon Sim as witnesses to the signature of the deceased on this first will on 29 August 1997 ('P2'). Madam Pow Khoon Sim was a close friend of the deceased.

[4]The second will ('D41') was allegedly prepared by lawyer Chew Sien Chee who had passed away since March 2000, allegedly witnessed by him and Mr Koh Seong Hai, a cousin of the plaintiff and first defendant and the brother-in-law of Chew Sien Chee. All the three defendants are the executors and trustees of this second will.

[5]The beneficiaries in the first will and the second will are also different; in particular, the plaintiff who was bequeathed 35% of the deceased's shares in Chung Beng Eng Realty Sdn Bhd in the first will, was not devised anything in the second will except the sum of RM99.99 while the first defendant who was not bequeathed any benefit in the first will was made an executor and trustee, bequeathed a sum of RM99.99 and his children also benefited from the second will.

[6]The plaintiff contended that the second will is forged and sought a declaration that the first will is the valid last will and testament of the deceased. He also prayed that the Petition for Probate No 32–32 of 2000 filed by the defendants be struck out or alternatively that the said petition be retained but with the second will and the defendants being substituted by the first will and the plaintiff and Chung Keng Chiew as the legal executors.

[7]The defendants on the other hand contended that the second will being the later will was the last will and testament of the deceased which supersedes the first will.

THE ISSUES

[8]The issues as agreed by both parties to be tried are contained in bundle E and can be deduced as follows:

(a)Whether the deceased had made the first will dated 29 August 1997; and

[2011] 8 MLJ 32 at 39

(b)Having regard to all the circumstances of the case, whether the deceased could have made the second will dated 31 October 1998 and whether the alleged signature of Chung Beng Eng, deceased in the second will is the signature of Chung Beng Eng, deceased or whether the second will dated 31 October 1998 is a forgery.

EVALUATIONThe plaintiff's case

[9]Four witnesses including the plaintiff himself were called in the plaintiff's case. Their evidence are briefly as follows:

[10]The plaintiff ('PW1') testified vide his witness statement ('P1') that there are six siblings in the family inclusive of himself namely:

(a)Ch'ng Kheng Cheang, eldest brother;

(b)Chong Yin Cheng, the only sister in the family (SP4);

(c)Chung Keng Leng, the third brother in the family;

(d)Chung Keng Huat, the first defendant; and

(e)Chung Keng Chiew, the youngest brother.

[11]The plaintiff is the second brother in the family. Both their parents have passed away. His father Chung Beng Eng's death certificate was produced in p1 of bundle B. His mother pre-deceased his father. Between 1996 until his death on 28 August 1999, Chung Beng Eng ('the deceased'), lived at house at No 7, Tingka