Ong Eng Hock & Anor v Ong Cheng Guan & Anor [2018] 5 MLJ 701

Court: Federal Court (Putrajaya)

Topic: Revocation of Probate

2.     On 7 March 2002, the Deceased died and the High Court granted probate to the estate of the Deceased to the Appellants.

3.     However, the First Respondent (another son of the Deceased) alleged that the will made by the Deceased was forged.

4.    The First Respondent submitted to the High Court that the Deceased’s lawyer had summoned family members, including the Appellants, and informed them that there was no will and the signature on the will was not the same as the Deceased’s signature.

5.     The Appellants however denied the allegations in their statement of defence.

6.     The Appellants further pleaded that the will was a valid will witnessed by witnesses, that it was within the First Respondent’s knowledge that the Deceased had different signatures and that, the police had not taken any action against the Appellants on the alleged forgery.

7.     The Appellants then counterclaimed against the First Respondent for damages, for the malicious reports lodged by the First Respondent against the Appellants.

8.     The High Court dismissed the Respondents’ claim and the Appellants’ counterclaim.

9.     The matter was brought to the Court of Appeal and it did not disturb the High Court’s findings but held that the High Court was wrong to impose the burden of proof on the First Respondent to prove forgery when the Appellants had not proved due execution of the will.

10.   Dissatisfied with the outcomes of the decision, the Appellants made an appeal to the Federal Court to dismiss the Court of Appeal’s order.

2.     The Appellants contended in the Federal Court that the only issue was whether a false/forged will was put forward to obtain probate.  The grant of probate, even in common form is conclusive as to due execution.

3.     The Respondents side however argued that the rules of probate were not applicable because the will was challenged, the onus shifted to the propounder of the will.

4.     The Respondents further argued that the grant of probate to the Appellants was immaterial and that there was no will in existence.

5.     In this regard, the Federal Court made a reference to Section 34 of the Probate and Administration Act 1959 (“Act 97”) wherein it reads as follows:

“any probate or letters of administration may be revoked or amended for any sufficient cause. What constitutes sufficient cause would depend on the circumstances of each case.”   [Emphasis added]

6.     The questions raised in the Federal Court on who has the burden to show sufficient cause whether it is the Applicants or the Respondent and whether there was sufficient cause for revocation of the probate?

7.     The Federal Court cited the case of RMP V Palaniyappan v NPL St MV Ramanathan Chettiar [1977] 2 MLJ 34, where Abdul Hamid J, as he then was, categorically stated that the applicant has the onus to establish sufficient cause as follows:

“Before I finally state my finding, it may be useful to refer to the law affecting application for revocation of probate. It is settled law that the court may revoke any probate if it is satisfied that there is sufficient cause to do so (Section 34 of the Ordinance). The onus, I think, is on the applicant to establish that there is sufficient cause for the revocation. What constitutes sufficient cause would, to my mind, depend upon the circumstances of each particular case.”   [Emphasis added]

8.     In Re Khoo Boo Gong, decd Khoo Teng Seong v Teoh Chooi Ghim & Ors [1981] 2 MLJ 68, Chang Min Tat FJ, delivering the judgment of the court, also openly stated that the applicant has the onus to make out sufficient cause for revocation of the probate as follows:

“In our view, therefore and with respect, we do not think that the respondents have made out a case for the revocation of the probate granted to the appellant. No sufficient cause has been shown by the respondents. The appeal must be allowed.”

9.     Having correctly referred to the law and the referred cases above, it is clear that the person who seeks revocation of the probate has the burden and initial onus to prove sufficient cause.

10.   The Federal Court agreed with the trial court’s decision that the First Respondent had the ‘legal and evidential burden of proof’, and that the Appellants had no ‘evidential burden’ unless ‘a prima facie case (had been) made out on the pleaded cause of action’.

11.  The Federal Court also made a thorough finding by employing the trial court’s decision where it summed up the reasons for its preference of DW3’s (for the Appellants) expert opinion over PW4 (for the First Respondent) in testifying the impugned signature of the Deceased as follows:

“DW3 thoroughly analysed and examined both the similarities and inconsistencies between the original and specimens before he expressed his opinion that the signature was genuine.  In my view, he (DW3) supported his conclusion, that the (impugned) signature was signed by (the Deceased) who had written the specimens, by cogent data as a result of a comprehensive analysis of the signatures, duly taking into consideration both the similarities and the differences that were observed. In these circumstances, I held that the expert opinion of DW3 was to be preferred to that of PW4.

In short, his (DW3) conclusion of genuineness was firm, unequivocal and supported by cogent data based on a comprehensive examination that left little room for doubt. PW4 on the other hand had not done thorough analysis with the original Will and arrived at findings and conclusions that were weak, inconclusive and unreliable as proof …”   [Emphasis added]

12.  Pursuant to that, the Federal Court also leaning towards the trial court where it agreed that there was an existence of enmity between the parties and that the Respondents failed to bring the Deceased’s lawyer to prove the non-existence of will.

13.  The Federal Court concurred with the trial court that the forgery was not established since the Respondents have not discharged their burden to prove forgery completely through the reasons as provided in Paragraph 11 above.

14.  It was held by the same Court that the signature of the Deceased on her will was not forged and that the forgery that was pleaded as sufficient cause shall fail since it was not established.

2.    The High Court held that forgery was not proved. Since sufficient cause was not established, the Court of Appeal could not revoke the probate.

3.     The order of the High Court was restored.

2.    Nonetheless, if a will has been granted a probate, the individual seeking revocation of the probate must establish a sufficient cause.

3.     If the will has been granted a probate, the party seeking revocation of the probate claiming on the basis of forgery bears the burden and first onus of proving forgery.

4.     If the will has not been granted a probate, neither the propounder nor the challenger of the will is completely free from bearing the burden and the onus of proof.