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 first appellant, his daughter Eu Siew Cheng the second appellant and his wife Ong Sin Kheng, the third 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 first appellant. He is the nephew of the deceased and the statement of claim reads:

Plaintif ialah wasi yang dilantik di dalam wasiat terakhir Eu

Chin Eow, si mati beralamat di No 3 Jalan Padang Tembak, Pulau

Pinang yang meninggal dunia pada 10 Disember 1995, wasiat

tersebut adalah bertarikh 26 November 1990.

(1)2 Plaintif menafikan kepentingan defendan yang dinyatakan di kaveat

yang dibuat oleh peguamcara defendan bertarikh 13 Mei 1996,

sitasi yang difailkan oleh defendan pada 13 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, si mati.

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(2)3 Oleh itu, plaintif menuntut:

a bahawa mahkamah mengdekrikan probet wasiat Eu Chin Eow

bertarikh 26 November 1990;

b gantirugi-gantirugi;

c kos-kos; dan

d relif selanjutnya yang mahkamah mulia ini anggap sesuai dan

suaimanfaat.

[3] The first 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 Defendant 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.

(1)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.

(2)5 The defendant therefore prays the claims be dismissed with costs.

COUNTERCLAIM

(3)6 The defendant repeats paras 1 to 5 of the defence and

counterclaims against the plaintiff as follows:

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(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 benefi