Topic 9: Contentious Probate Professional Practice II | ALICIA LEE

 S. 2 PAA: ‘Probate action’ - a cause/matter in which a petition for probate of administration is contested by any person, and
includes an application to alter/revoke any grant of representation.
 O. 72 r. 1(2): ‘Probate action’ means an action for
 grant of probate of the will or letters of administration;
 revocation of such grant; or
 decree pronouncing for/against the validity of an alleged will.
 3 methods of commencement for probate action/contentious probate: Plaintiff’s own initiative; Citation; Caveat

Plaintiff’s Own Initiative

 Plaintiff may commence probate action due to a dispute or to ensure the letters of representation granted is not challenged
later.
 Procedures:

(1) Filing Cause Papers (O.72)

(i) Writ
 O. 72 r. 2(1): Probate action must be begun by a writ (Form 2) and issued by the Registry of the HC.
 O. 72 r. 2(2): Writ must be endorsed with a statement of the nature of interest of P and D in the estate of the deceased.
 O. 10: Writ must be served personally/by prepaid AR registered post on D
 O. 72 r. 3(1) + O.11 r. 3-4: Service out of jurisdiction of notice of writ, by which a probate action is begun is permissible
with the leave of the court.
Debaroti Das Gupta v Deb Brata Das Gupta
-The word ‘must’ implies that it is mandatory for the action to be begun by way of a writ.

(ii) Appearance
 O. 72 r. 6: D must enter appearance at the Registry and O. 12 shall apply, within 14 days from service for writ served
within the jurisdiction of Malaya.
 O. 72 r. 10(1): O.13 shall not apply in relation to a probate action i.e. cannot obtain judgment in default (JID) of
appearance.
 O. 72 r. 10(2): If D fails to enter an appearance, the P, upon filing an affidavit proving due service of the writ, may after
the time limited for appearing, proceed with the action as if that D had entered an appearance.
 O. 72 r. 10(3): P need to apply to the Court for leave to set down the action for trial, unless if want to discontinue.

(iii) Affidavit
 P and D who has entered appearance must swear and file Affidavit of testamentary scripts.
 O. 72 r. 9(5): ‘Testamentary script’ - will/draft thereof, written instructions for a will made by or at the request or under the
instructions of the testator; and any document purporting to be evidence of the contents, or to be a copy, of a Will which is
alleged to have been lost or destroyed.
 O. 72 r. 9(2): Affidavit must be filed within 14 days after the entry of appearance.
 O. 72 r. 9(1): Content of the affidavit - describe any testamentary script that he knows of no such script; any such script of
which he has knowledge is not in his possession/under his control.

(iv) Pleadings
Statement of Claim
 O. 72 r. 11: P must serve a SOC on every D who enters an appearance in the action before the expiration of 6 weeks after
entry of appearance by that D/ 14 days after the filing by him of an affidavit of testamentary script, whichever is the later.
 O. 72 r. 13: Content of SOC
(1) If P is disputing the interest of a D - that he denies the interest of that D;
(2) If P is disputing the interest of a party claims to be entitled to a grant of LA - that if the allegations made therein are
proved he would be entitled to an interest in the estate.
(3) Any party (either P/D) who pleads that the testator did not know when the will was executed and did not approve the
contents - must specify the nature of the case on which he intends to rely.
However, in support of the above plea, the party is prohibited from making allegation connected with the following pleas:
(a) that the will was not duly executed;
(b) that at the time of the execution of the Will, the Testator was not of sound mind, memory and understanding; and
(c) that the execution of the Will was obtained by undue influence or fraud,
unless these pleas are also pleaded in the SOC/defence/counterclaim
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Topic 9: Contentious Probate Professional Practice II | ALICIA LEE
Defence and Counterclaim
 O. 72 r. 12: D who alleges that he has any claim/is entitled to any relief/remedy in respect of any matter relating to the
GP/LA must add to his defence a counterclaim in respect of that matter.

Default of Pleadings
 O. 72 r. 14: If D fails to serve on P a pleading as required, O.19 (i.e. Judgement in default (JID) of pleadings) does not
apply. P may only apply to Court for leave to set down the action for trial.

(2) Pre- Trial Case Management (O. 34)

 O. 34 r. 2(1): Court may direct parties to attend a PTCM relating to the matters arising in the action/proceedings.
 O. 34 r. 3(1): The registry shall issue a notice in Form 59 requiring the parties to attend before the Judge.
 O. 34 r. 2(2): At PTCM, the Court may consider any matter including
 the possibility of settlement of all/any of the issues in the action/proceedings; and
 require the parties to furnish the Court with such information as it thinks fit, and
 the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the
action/proceedings
 O. 34 r. 1(3): If any party defaults in complying with any directions in r. 2 and r. 3, the Court may dismiss such
action/proceedings or strike out the defence/counterclaim or enter judgment or make such order as it thinks fit.
 O. 34 r. 6(1): If, at the time appointed for the PTCM, any party fails to attend, the Court may dismiss the
action/proceedings or strike out the defence/counterclaim or enter judgment or make such other order as the Court thinks fit.
 Once the parties have complied with the Court’s direction, the Judge will fix the date for hearing.

(3) Trial and Judgment (O.35)

 Trial is in open court before a judge who will then give his judgment.
*Note:
O. 72 r. 15: Discontinuance - a party to a probate action may discontinue the action with leave of the court.
O. 72 r. 16: Compromise of action - parties to the probate action may agree to a compromise and apply to the court for leave to
set down the action for trial.

Issuing a Citation
 O. 72 r. 5: On the application of the P/any other party who has pleaded in a probate action, a citation may be issued against
any person not a party to the action who has an adverse interest to the applicant notifying him that if he does not enter
an appearance in the action, judgment may be given therein without further notice to him.
 O. 72 r. 7: In an action for the revocation of GP/LA, a citation against the person to whom the GP/LA was granted
requiring him to bring into and leave at the Registry the GP/LA, may be issued on the application of the P.
 O. 72 r. 2(3): A writ beginning an action for the revocation of GP/LA shall not be issued unless a citation under r.7 has
been issued.
 Procedures:
1. O. 72 r. 8(1): A citation under r.5 and r.7 shall be issued out of the Registry and shall be settled by the Court before
issued.
2. O. 72 r. 8(2): Before such a citation is issued, an affidavit verifying the statements of fact to be made in the citation
must be sworn by the person applying for it to be issued:
Provided that the Court may in special circumstances allow the affidavit to be sworn by that person’s solicitor.
3. O. 72 r. 8(3): The issue of a citation takes place upon its being sealed by an officer of the Registry.
4. O. 72 r. 8(4): A citation under r.5/r.7 must be served personally on the person cited.
5. O. 72 r. 5(2): Where a person on whom a citation under this rule is served fails to enter an appearance in the action,
6. the party on whose application the citation was issued shall not be entitled to be heard at the trial of the action without
the leave of the Court, unless he has filed an affidavit proving due service of the citation on that person.

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Topic 9: Contentious Probate Professional Practice II | ALICIA LEE

Lodging a Caveat
 Moran v Place: A caveat is a notice to the registrar/officer of the Court not to let anything be done by anybody in the
matter of the will, or the goods of the deceased, without notice to the person who lodges the caveat.
 Function: Stops/bar grant of probate due to dispute over who can apply for grant/ validity of will.
 S. 33 PAA: Any person wishing to dispute a will, may enter a caveat before representation has been granted to the estate so
that no representation can be granted without notice to the caveator.
 O. 71 r. 37(1): Any person who wishes to ensure that no grant is made without notice to himself may enter a caveat.
 O. 71 r. 37(7): Registrar must not make any grant if he has knowledge of an effective caveat in respect thereof.
Mohamed Daud bin Haji Mohamed Tahir v Habibah bte Badu Rahman
-When a caveat is lodged, the matter change from non-contentious to contentious.

 Procedure to lodge caveat:

1. O. 71 r. 37(3): The caveator must file a caveat in Form 164 at the HC Registry.
2. O. 71 r. 37(2): When a caveat is entered, the Registrar shall forward a copy of the caveat and give notice in Form 158 to
the Registrar of the Principal Registry (RPR).
3. O. 71 r. 37(6): The RPR shall maintain an index of all caveats entered in all Registries. On receiving a notice of an
application for a grant, he shall cause the index to be searched and shall notify the appropriate Registrar or LA.
4. O. 71 r. 37(5): Once issued, the caveat will remain in place for a period of 6 months, until either removed voluntarily by
the person entering the caveat or alternatively by an order of the Court. It can be renewed after 6 months.
5. O. 71 r. 8: If anoyone wishes to challenge, he must issue a Warning to the caveator.

 Procedure to challenge/warn a caveat

1. O. 71 r. 37(8): Person interested/Caveatee (‘Person Warning’) applies to the HC Registry to issue a Warning in Form 165.
The Warning must be served on the caveator and the Registrar of the Principal Registry.
2. O. 71 r. 37(10): Once Warning is served, caveator with contrary interest (interest for a grant himself) have a period of 8
days to enter an appearance in Form 166 specifying the grounds upon which the Caveat had been entered. The appearance
must be sealed by the probate registry before being served on the Person Warning and the RPR.
3. O. 71 r. 37(11): Caveator with no contrary interest to that of the person warning have a period of 8 days to issue and
serve a Summons for Directions.
4. If the caveator enters appearance it is considered a contentious matter. HC has no jurisdiction to grant LA.
Fatimah Bee Alias Batcha Ammal v Mohideen Batcha, Attorney of Shaik Dawood
-If the caveator fails to enter an appearance, the caveat will be removed and the Person Warning will be able to apply for a
grant.

 Withdrawal of caveat:
O. 71 r. 37(9): A caveator who has not entered an appearance in Form 166 may at any time withdraw his caveat by giving
notice at the Registry. A copy of this Notice must be served on the Registrar of the Principal Registry. However, if he has been
warned (warning has been served), the caveator must give notice of withdrawal of the caveat to the person warning.