The burden of proof regarding the genuineness of a disputed agreement lies with the party asserting its validity, and appellate courts will intervene if trial judges fail to properly evaluate evidence.

JUDGMENT

Lim Chong Fong JCA:

[1] This is an appeal on a sibling dispute pertaining to the transfer of properties by the father to a son contrary to intent in the will of the father that also benefitted the other sons.

[2] The parties are all sons of the late Tan Kim Khay @ Tan Kim Kmay ("TKK").

[3] We heard this appeal on 5th August 2024 and thereafter adjourned our decision to deliberate on the arguments presented by the parties.

[4] After having duly considered them, we hereinbelow unanimously give our decision with our supporting grounds thereto.

[5] For purposes here, we will address the parties as Plaintiffs and Defendant in the High Court .

Background

[6] The late TKK owned four properties, to wit, Lot 3755, Lot 3756, a portion of Lot 3745 and a portion of Lot 3752 subdivided from master title Pegangan No 45(1), Mukim 12, Daerah Seberang Perai Utara, PulauPinang ("Properties") purchased from the late Ahmad bin Haji Ismail.

[7] According to the Plaintiffs, TKK intimated orally to them that his assets would be distributed amongst all his sons equally and this is reflected in TKK's will executed on 13th May 2003 ("Will"). The Will is reproduced below:

[8] TKK passed away in October 2005.

[9] There was however no distribution of the Properties by the Defendant who is the named executor in the Will by reason that the subdivision of the Properties was then still on-going according to him.

[10] Furthermore, after the sub-division was completed, the Properties were never distributed to the Plaintiffs by reason that TKK had subsequent to the making of the Will transferred the beneficial interest in the Properties to the Defendant via an agreement dated 28th June 2003 made between TKK and the Defendant ("Agreement"). The Agreement is also reproduced below:

[11] Consequently, the administrators of the estate of the late Ahmad bin Haji Ismail on 19th December 2005 transferred Lot 3755 and 3756 of the Properties to the Defendant whereas the parts of Lot 3745 and Lot 3752 of the Properties were later transferred to the Defendant via a vesting order of the High Court .

[12] The Defendant thereafter in 2014 sold and transferred Lot 3755 of the Properties to Ng Boon Seng and Lot 3756 of the Properties to Tong Chin Nam respectively. As for Lot 3756 of the Properties, Tong Chin Nam thereafter sold and transferred it to Goh Siew Leng and Tay Chong Koon.

[13] Upon becoming aware of the existence of the Agreement, the Plaintiffs in 2013 and 2014 lodged police reports based on their claim that the Agreement and TKK's affidavit dated 16th March 2005 ("Affidavit") made for the purpose of vesting the Properties on the Defendant are forgeries.

[14] Hence, the Plaintiffs on 15th April 2019 commenced legal action in the High Court ("Suit") claiming that the Defendant committed equitable fraud by having transferred all the Properties to himself in breach of his duty as trustee/executor under the probate action of TKK.

In The High Court

[15] The Plaintiffs claimed for the following in the Suit in Bahasa Malaysia:

[16] However, after trial, the learned Judge dismissed the claim with costs ("Judgment"). In the grounds of judgment ("GOJ"), the learned Judge held as follows in support of the Judgment in Bahasa Malaysia:

"[8] PW1 menjalankan pemeriksaan ke atas perjanjian 2003 dan 5 spesimen lane tetapi tidak menganalisakan tandatangan simati dalam wasiatnya yang bertarikh 13 Mei 2003 yang dibuat lebih kurang sebulan sebelum simati menandatangani Perjanjian 2003. Fakta bahawa tiada tandatangan seseorang boleh didapati serupa dari semua segi tidak boleh saya kira dipertikaikan. Dan kes-kes banyak diputuskan jika ada keterangan daripada seseorang yang boleh dipercayai melihat seseorang itu menandatangani sesuatu dokumen maka keterangan orang itu boleh diterima mengatasi keterangan pakar. Lihat Lee Ing Chin & Ors v. Gan Yook Chin & Anor; 2003 MarsdenLR 1561 ; [2003] 2 CLJ 19; [2003] 2 AMR 357. DW1 dan DW 2 telah disoal balas dan keterangan mereka tidak dicurigai. Plaintif