Probate Caveats and Citations: the lead-up to a Contentious Probate Proceeding
- Gavin Jayapal
- Apr 1
- 6 min read
Probate Caveats and Citations: the lead-up to a Contentious Probate Proceeding
NB: The term “Probate Caveat” does not exist in the ROC 2012. I have just used this term as a handle. You may see this term also occasionally utilised in Judgments.
I have previously written about Contentious Probate Proceedings (CPP) and the appointment of an Administrator Pendente Lite (APL). You may read those articles here:
I note that I have neglected to write about the lead-up to the filing of a CPP.
The 2 scenarios
Prior to filing a CPP, 2 scenarios will play-out:
a. No Grant of Probate/Letters of Administration have been applied-for;
b. A Grant of Probate/Letters of Administration have been issued.
There is a 1.5 interim scenario (i.e., where the OS for a Grant of Probate/LA has been filed but the Grant has not been issued as-of-yet). You will still file a Probate Caveat should such a situation arise.
1st scenario: No Grant of Probate/LA has been applied-for (Lodge a Probate Caveat)
Upon death, the Jabatan Pendaftaran Negara, JPN (National Registration Department, NRD) will issue a Death Certificate.
The Death Certificate is issued pursuant to Subsection 32(2) of the Births and Deaths Registration Act 1957.
The procedure for issuing (and searching for) the Death Certificate is contained within Subrules 6-13 of the Births and Deaths Registration Rules 2019 (PU(A) 54/2019.
The original Death Certificate is only issued once in its original form. If this is lost, then one will need to apply for an Extract of Death Certificate (Cabutan Sijil Kematian).
The easiest way to get the Death Certificate or the Extract of Death Certificate would be to get one’s client (that will be the next-of-kin) to walk in to JPN’s Headquarters in Putrajaya. They would need to fill in the forms and pay all charges applicable after which, the Death Certificate/Extract will be issued.
Armed with this, one can then proceed to file a Probate Caveat under O. 71, r. 37 ROC 2012 (Form 164 ROC 2012). Once a Probate Caveat has been entered, the Registrar shall forward a copy of the caveat to the Registrar of the Principal Registry, thereby blocking any attempt to obtain any Grant of Probate/LA on the Estate of the Deceased.
A Probate Caveat can be entered by a solicitor (O. 71, r. 37(4)) and it shall remain in-force for a period of 6 months (O. 71, r. 37(5)). Failing to initiate a CPP within the 6-month period may render any suit filed a nullity (Mohammed Daud v Habibah [1959] 1 MLJ 55).
There are various other processes that may be undertaken with regard to the caveat. These are details in O. 71, r. 37(6)-(15). I won’t delineate each and every process but I would exhort any individual interested in this to read Ber Foo Li Wei [2021] MLJU 2458 (NB: This decision was reversed by the CA. However, the processes and procedures delineated by the learned Judge are worth an in-depth read).
Once the Probate Caveat has been lodged, one would then proceed to initiate a CPP. It is no good to maintain a Caveat ad infinitum without moving forward to determine and delineate the rights of the beneficiaries vis-à-vis the Estate.
2nd Scenario: The Grant of Probate/LA has been issued (Apply for a Citation)
Where the Grant of Probate/LA has been issued, one must then turn to O. 72, r. 7. This rule mandates that prior to the initiation of a CPP, one must issue a Citation.
To further confuse parties, the Citation is contained in O. 71, r. 41 ROC 2012 (Form 167).
Depending on whether a Grant of Probate/LA has been issued, it will be necessary to prepare the Citation. The Citation is to be verified by an affidavit sworn by the next-of-kin that intends to revoke the Grant of Probate/LA.
The Citation is to be filed in the same Originating Summons which was utilised to obtain the Grant of Probate/LA. In this regard:
a. To obtain the Grant of Probate/LA, an OS would have been filed in the Court Registry;
b. If you/your client is lucky, the Executors/Administrators would have shared a copy of this Grant with you (NB: A Beneficiary is entitled to see the Grant of Probate/LA). You will then have the case number right at the top, like this:
c. The Citation and Affidavit in Support would then be filed in the same OS, using the same case number (Diman bin Hassan v Siti Fathihah [2022] MLJU 3615);
d. The Citation is merely an administrative step. The entire case theory of your client need not be set-out but it should be generally outlined. The Citation is not intended to be a sieving process (Yap Teck Ngian v Yap Hong Lang [2006] 6 MLJ 607; Diman bin Hassan v Siti Fathihah [2022] MLJU 3615).
If, however, the Executor/Administrator refuses to share a Grant of Probate/LA, one will need to get creative. Letter-writing generally helps (though there are other techniques).
Once the Citation has been sealed by the HC, the same needs to be served on the Executor/Administrator. The parties will then need to go before the Court and administratively deposit the Probate/LA in the Court Registry (with the Registrar).
Prior to this, the Grant of Probate/LA used to be issued as an original document with the Court’s seal. However, with the advent of e-filing, the Grant of Probate/LA can be printed from the system in as many copies as is necessary. It is good practice to ensure that the Grant of Probate/LA that has been Certified as True (Original Copy) by the Registrar be deposited with the Court Registry.
Once this has been done, the Grant of Probate/LA is suspended. A Writ for the CPP must be issued 6 weeks after the citation has been issued (O. 72, r.11 and Easa v Zolfakar [2021] MLJU 1239).
The distinction between these 2 processes (i.e., before Grant of Probate/LA and after) was discussed in Fok Po Nam v HSBC Trustee (Hong Kong) [2018] HKCU 165.
International jurisdictions
If the Deceased had international assets, you would definitely want to restrain a Grant of Probate/LA from being issued in those jurisdictions.
Most Commonwealth jurisdictions (Singapore, Australia and Hong Kong are those I have experience with) utilise a similar process.
They will also generally involve filing a Probate Caveat (with minor differences). One would need to contact a foreign solicitor and immediately get this moving.
A word of caution
I must caution solicitors here. CPP is a highly technical and difficult area of the law.
Getting it wrong may result in the HC making a finding that you are entitled to all reliefs but, due to your non-compliance with O. 72 ROC 2012, the entire suit stands to be dismissed (please see Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605 where just such a scenario played-out. The HC held that but for the non-compliance, each and every prayer sought by the Plaintiff would have been granted. I contacted the solicitors involved and obtained their confirmation that there was no appeal lodged against this decision).
Always be circumspect and if in doubt, remember: measure twice, cut once.
GAVIN JAYAPAL
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