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  • Writer's pictureGavin Jayapal

Contentious Probate Proceedings: O. 72 ROC 2012

Contentious Probate Proceedings: O. 72 ROC 2012

O. 72 ROC 2012 is an oft-overlooked procedural requirement. I have personally dealt with 3 contentious probate proceedings where there has been failure to comply with its strict, mandatory requirements.

Failure to comply causes the pleadings upon which the suit is based to become unsustainable. The entire claim cannot stand, no matter how strong the evidence.

What is a contentious probate proceeding (“CPP”)?

The definition of a CPP is provided for by O. 72, r. 1(2) ROC 2012, which specifies that a  "probate action" means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.

The Probate and Administration Act 1959 (Revised 1972) [Act 97] (“PAA 1959”) reinforces this. S. 2 PAA 1959 specifies as follows:

"probate action" means a cause or matter in which a petition for probate or administration is contested by any person, and includes an application to alter or revoke any grant of representation; "representation" means the probate of a will and administration, and the expression "taking out representation" refers to the obtaining of the probate of a will or of the grant of administration;

As such, probate actions are suits where:

  1. A grant of Probate/Letters of Administration (“PLA”) is sought; and/or

  2. A revocation of a grant of PLA is sought; and/or

  3. A declaration is sought from Court against the validity of an alleged will.

Mandatory requirements

Against this backdrop, it is easy to see why O. 72 ROC 2012 is worded the way it is. Seeking to grant or revoke PLA carries heavy implications for all involved. There will be numerous allegations of fraud, dishonesty, forgery and mala fides bandied about. For these reasons alone, the procedural requirements are strict to ensure that at trial, no surprises are brought forward.

Without belabouring the point, O. 72 ROC 2012 utilises the term “must” 18 times and “shall” 24 times. The term “may”, in contrast, only makes an appearance 22 times.

In contrast, non-contentious probate proceedings under O. 71 ROC 2012 only do not utilise the term “must” at all, preferring instead the discretionary term “may”, which sees 117 appearances.

If Perbadanan Nasional Insurans v Pua Lai Ong {1996] 3 MLJ 85 (COA) and DYAM Tunku Ibrahim Ismail v Datuk Captain Hamzah [2009] 4 MLJ 149 (FC) are to be bellwethers, I’d wager a pretty penny that mandatory requirements, when explicitly stated, are to be strictly adhered to.

There is very little scope for discretion or O. 1A ROC 2012 to be applicable in the face of such peremptory wording.

Common law- O. 72 ROC 2012 is mandatory

Despite the express provisions of O. 72 ROC 2012, many practitioners are still wont to file a CPP without any regard whatsoever to the strict procedural requirements.

In Dr Shanmuganathan v Periasamy Sithambaram [1997] 3 MLJ 61, the Federal Court emphasised that O. 72 RHC 1980 (which is in pari materia with O. 72 ROC 2012) is to be complied with:

Orders 71 and 72 of the Rules of the High Court 1980 ('the RHC') provide for the conduct respectively of both non-contentious and contentious probate proceedings. After the caveat was lodged and the citation was served, the defendant ought to have taken immediate steps to propound the will so that the sole issue could have been resolved without delay. Failure to do so and his other acts necessitated the number of suits being filed between the same parties. In these circumstances, it is strange that the RHC were not strictly adhered to. But what is seen here is an intolerable and unhealthy situation. Solicitors, being officers of the court, should assist the courts in controlling and preventing multiplicity of proceedings of this nature, especially when there are clear rules available for the prosecution of civil proceedings of this nature where the sole issue was crystal clear.

Likewise in Sivanendran Markandoo v Dr Mahendran Markandoo [1988] 2 MLJ 169, the Federal Court “emphasise[d] that probate actions, whether contentious or non-contentious, should comply with Order 71 and Order 72 of the Rules of the High Court 1980.”

In Priyakumary Muthucumaru v Gunasingam Ramasingam [2006] 5 MLJ 511, the Court of Appeal affirmed that O. 72 must be complied with:

[13] For the present case, it must be noted that it involves the respondent's intended application to revoke the grant of the letter of administration in respect of the estate of the deceased which was granted to the appellants on 1 August 2003. By virtue of the definition of the words 'probate action' under O 72 r 1(2) of the RHC that proceeding is a probate action. It is a contentious probate proceeding as defined thereunder. Therefore, for the purpose of the action contemplated by the respondent against the appellants in this case the applicable rules are O 72, not O 71 of the RHC. A probate action under O 72 r 2(1) of the RHC must be begin by writ and the writ must be issued out of the Registry. In the present case, the respondent is found to have lodged a caveat in the High Court on 7 October 2003, well after the appellants had obtained the letters of administration of the estate of the deceased on 1 August 2003. In our view, the procedure adopted by the respondent in this case by filing the caveat to challenge the granting of the letters of administration of the estate of the deceased to the appellants is wrong in law.

Refer further:

  • Yap Teck Ngian v Yap Hong Lang [2007] 5 MLJ 756 (FC)

[6] Thus, it is clear from the above provisions that before any person can file a writ for the revocation of the grant of a letter of administration, a citation against the person to whom the letter was granted must be issued to him requiring him to bring into and leave at the court registry the letter of administration (O 72 r 7). The citation must be settled by the court before it is issued (O 72 r 8(1)). Before a citation is issued pursuant to O 72 r 7 an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for the citation to be issued (O 72 r 8(2)) and that the citation must be served personally on the citee which the citors did in the present case. In the Administration of Estates Handbook, Kanesh Sundrum states at p 187 para 192: Every probate action must be begun by writ issued out of the Registry of the High Court. The writ must be endorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased. A writ beginning an action for the revocation of probate or administration can only be issued after a citation to bring in grant has been issued or the probate or letters of administration has been lodged in the said registry. (Emphasis added.) [9] Likewise, O 72 r 8(2) provides for the manner of applying for a citation by way of an affidavit in contentious probate proceedings. Considering that the manner of application is specifically provided for in the RHC, it is only proper that the r 8(2) procedure is to be complied with as after all, the RHC are made to be obeyed (see Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228 (PC)).
  • Yap Teck Ngian v Yap Hong Lang [2006] 6 MLJ 507 (COA)

  • Re Yap Hong Kai [2002] 5 MLJ 189 (HC)

  • Neoh Ah Yan v Ong Len Choo [2008] 7 MLJ 151

  • Re Estate of Chua Tong Boon [2000] 7 MLJ 738

  • Shamugam v Pappah [1994] 1 MLJ 144

  • Re Yeow Chow Beng, Deceased [1998] 2 MLJ 330

  • Chin Teck Kwee v Lai Yoke Ngan [1993] MLJU 123

  • Re Mana Seena Veeran [1975] 1 MLJ 1

  • Wan Ujang v Government of Sarawak [2016] 1 LNS 836

The jurisprudence behind O. 72 ROC 2012

Recently (07 November 2016), the Court of Appeal considered the jurisprudential leanings of O. 72 ROC 2012. In an illuminating judgment, the COA emphasised the importance of the pleadings rule for CPPs. As put by the COA:

[2] In the instant case, the learned trial judge had failed to appreciate the importance of the pleading rules related to probate matters as well as the rule in Brown v Dunn (1893) 6 R 67 (HL) (see Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v Lim Woon Katt [2016] 5 MLJ 220). Further, the application of the law to the facts had resulted in the integrity of the decision making process to be compromised, thereby warranting this court to set aside the judgment in limine. Upon invitation by the learned counsel, we took the liberty to go through the evidence and notes of proceedings by way of rehearing to reach a decision based on rule of law. [5] The learned trial judge had failed to appreciate the importance of O 72 r 13 which requires the plaintiff to plead the elements relating to what we often used to term as testamentary capacity and other challenges to the will. Once, when the challenge is made to the will the initial burden shifts to the defendant. If there is no challenge then it will follow that the burden will not shift to the defendant. It may be different if a party is propounding the will in the first instance. This distinction must be kept in mind. In Ong Cheng Guan (suing on his behalf and on the behalf of the beneficiaries to the late Ong Eng Bee) & Anor v Ong Eng Hock & Anor Civil Appeal No J-02–2521–10 of 2012 (unreported), JURISPRUDENCE RELATING TO THE PLEADING RULES IN CONTENTIOUS PROBATE ACTION [11] Order 72 of the Rules of Court 2012 (‘the RC 2012’) relates to contentious probate proceedings and is relevant to this suit. It is a strict requirement that there must be endorsement of the parties’ interest. The appellant complains that this requirement was not satisfied. We perused the relevant cause papers and we agree with the appellant that the strict requirement relating to the endorsement was not complied with. Order 72 r 2(2) says: (2) Before a writ beginning a probate action is issued, it must be endorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates. [12] This endorsement becomes relevant when there is an allegation that the provision of O 72 r 13 requirements are not satisfied for the plaintiff to succeed. If the mandatory particulars stated therein are not pleaded, the court cannot make a finding on unpleaded issues. [15] The jurisprudential significance of O 72 r 13 is that if there is a failure to plead the court is not obliged to make any finding on those issues. In such instance, the threshold for the defendant to satisfy the initial burden may not arise at all and/or the threshold may be low as the testamentary capacity, etc are not challenged.

From this judgment, it is clear as day that the requirements of O. 72 ROC 2012 are mandatory. Failure to comply will result in a suit being nugatory, null and void. A defendant should not be required to meet a claim that is, in law, unsustainable.

What happens if there’s non-compliance?

With such ample jurisprudence on this issue, it is still baffling that many practitioners issue Writs without first perusing O. 72 ROC 2012. In such, situations, even a preliminary objection will suffice to cause an entire suit to be dismissed.

In Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605, the High Court heard a suit issued pursuant to a Writ. At the conclusion of trial, the defendant raised a preliminary objection, citing non-compliance with O. 72 ROC 2012.

Despite having heard and considered all the evidence and having decided the suit in favour of the Plaintiff, the learned Judge held that due to the non-compliance, the suit was nugatory, null and void. Accordingly, the learned Judge dismissed the action in limine.  

OPINION OF THE COURT [13] I have read through the plaintiffs pleading and one of the principal reliefs sought by the plaintiff is for an additional administrator to be appointed. The plaintiffs submitted that this action is a civil action against defendant to fully administer the cash and stocks assets of the deceased estate and thus the suit is not a contentious probate proceedings as defined under O 72 r 1(2) of the Rules of Court 2012. As such there is no requirement for the plaintiff to commence this proceeding by way of O 72 r 2 of the Rules of Court 2012. [14] In this present action before this court, the plaintiff submitted that plaintiff is not arguing the issue of the grant of probate, or to dispute the validity of the will and it is not an action to revoke the grant of probate which was granted and issued by the High Court at Kuala Lumpur on 27 March 1999. [15] In my opinion, if one were to look at the definition of a PROBATE ACTION in s 2 of the Probate and Administration Act 1959, which includes an application to alter or revoke any grant of representation, the application by the plaintiff for an additional administrator to be appointed, effectively asking the court to alter the grant of representation. The application clearly falls under the definition. Further, the entire pleading in the plaintiffs statement of claim which has referred to the deceased estates in the will which has been previously probated as the basis of her claim is a probate cause or matter under the definition. Therefore the plaintiff’s application is a probate action and the provisions of O 72 r 2 of the Rules of Court 2012 read together with s 34 of the Probate and Administration Act 1959 applies. (Emphasis added.) [21] Therefore, this suit is in its essence a PROBATE ACTION as defined under O 72 r 1(2) of the Rules of Court 2012. As such there is requirement for the Plaintiff to commence this proceeding by way of O 72 r 2 of the Rules of Court 2012. A probate action must be begun by writ, and the writ must be issued out of the registry as provided under r 2(1). The word must denotes that it is mandatory for the action to be begun by way of a writ action (seeNeoh Ah Yan v Ong Leng Choo & Anor [2007] 7 MLJ 151; [2007] 10 CLJ 410). [22] Accordingly this court rules in favour of the preliminary issue raised by the defendant and plaintiffs action is hereby dismissed in limine for having failed to use the proper procedure in bringing her action.

The case of Saadon Bin Abdullah v Jamilah Bt Omar [2011] MLJU 652 affirms this position:

BANTAHAN AWAL: Defendan-Defendan telah membuat bantahan awal terhadap tindakan Plaintif ini, yang merupakan tindakan probet terhadap Defendan-Defendan bagi membatalkan pengeluaran Surat Kuasa tersebut kepada Defendan-Defendan bertarikh 9.11.2005, atas alasan tindakan Plaintif ini telah tidak mematuhi Aturan 72 kaedah 2(2) Kaedah-Kaedah Mahkamah Tinggi 1980 ( " KKMT "). Bahawa di bawah Aturan 72 kaedah 2(1), sesuatu permohonan untuk membatalkan pengeluaran Surat Kuasa Mentadbir hendaklah dimulakan dengan Writ dan di bawah kaedah 2(2) sebelum writ itu dikeluarkan ianya hendaklah diindorskan dengan Kenyataan tentang kepentingan Plaintif dan kepentingan Defendan dalam harta pusaka Si Mati di mana tindakan itu berkaitan. Walaupun Plaintif telah dengan betul memulakan tindakan ini dengan mengeluarkan suatu Writ tetapi Plaintif telah gagal mengindorskan suatu Kenyataan tentang kepentingan beliau dan kepentingan Defendan-Defendan dalam harta pusaka Si Mati. Memandangkan bahawa Aturan 72 kaedah 2(2) adalah merupakan peruntukan mandatori, maka peguam cara Defendan-Defendan berhujah bahawa tindakan ini seharusnya dibatalkan atas kegagalan Plaintif mematuhi peruntukan mandatori itu.
Saya bersetuju dengan hujahan peguam cara Defendan-Defendan itu dan dengan itu saya membenarkan bantahan awal Defendan-Defendan itu dan tindakan Plaintif ini adalah dibatalkan dengan kos bagi keseluruhan kes ini. Peguam cara Plaintif telah gagal menyedari tentang aspek ini dan tidak dapat memberi hujahannya mengenai bantahan awal ini.
Bukan itu sahaja, mengikut Aturan 72 kaedah 2(3) KKMT, sesuatu Writ itu hendaklah tidak dikeluarkan selagi suatu sitasi di bawah kaedah 7 telah dikeluarkan. Adalah jelas Plaintif telah pada mulanya lagi gagal mematuhi peruntukan ini juga.
Namun demi memberi suatu keputusan yang menyeluruh, saya teruskan menimbang isu-isu yang dibangkitkan.

Both cases serve to emphasise that in the event a suit is filed without adherence to the mandatory requirements of O. 72 ROC 2012, the suit obviously unsustainable. Even a preliminary objection will suffice to have it dismissed, let alone an application to have it struck-out.

CPPs must adhere closely to the detailed procedure set-out in O. 72 ROC 2012; failure to do so will result in a simple striking-out application (Bandar Builder v United Malayan Banking Corp [1993] 3 MLJ 36) being allowed as the pleadings are obviously unsustainable.


Should a striking-out application be allowed, particularly for matters such as CPPs, it is easy to see how a Plaintiff would immediately become demoralised. A setback before the charge is past the postern would immediately cause any assault to crumble.

Practitioners must be careful when drafting any CPP as failing to adhere to the minutiae can and will cause even the craftiest Statement of Claim to come to a grinding halt. Scrupulous adherence to O. 72 ROC 2012, together with erring on the side of caution, will always stand one in good stead.   

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