Chapter 12 - Miscellaneous Issues

Question 1

MISCELLANEOUS ISSUES

Overview

Answer 1

1) What is contentious probate proceedings
2) Whether O.72 is mandatory
3) Effect of non-compliance with O.72

Question 2

WHAT IS CONTENTIOUS PROBATE PROCEEDINGS

Definition in ROC

Answer 2

O.72, r.1(2):

“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.

Question 3

WHAT IS CONTENTIOUS PROBATE PROCEEDINGS

Definition in PAA

Answer 3

S.2 PAA:

(1) Meaning of probate action:
- 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.

(2) Meaning of representation:
- 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

(3) Meaning of probate suits:

• A grant of Probate/Letters of Administration (“PLA”) is sought; and/or
• A revocation of a grant of PLA is sought; and/or
• A declaration is sought from Court against the validity of an alleged will.

Question 4

WHETHER O.72 IS MANDATORY

Overview

Answer 4

1) Interpretation of ROC

2) Position under common law

Question 5

WHETHER O.72 IS MANDATORY

Interpretation of ROC

Answer 5

DYAM TUNKU IBRAHIM ISMAIL v DATUK CAPTAIN HAMZAH:

• mandatory requirements, when explicitly stated, are to be strictly adhered to.
• the term “must” in O.72 is used 18 times and “shall” 24 times. The term “may”, in contrast, only makes an appearance 22 times.
• There is very little scope for discretion or O. 1A ROC 2012 to be applicable in the face of such peremptory wording.

Question 6

WHETHER O.72 IS MANDATORY

Position under common law

Answer 6

YAP TECK NGIAN v YAP HONG LANG (FC, 2007):

• procedure under O.72 is to be complied with;
• Rules are made to be obeyed.

Question 7

EFFECT OF NON-COMPLIANCE WITH O.72

Preliminary objection

(HC, 2015)

Answer 7

DEBORATI DAS GUPTA v DEB BRATA DAS GUPTA:

• due to the non-compliance, the suit was nugatory, null and void.
• action is dismissed in limine.
• in the event a suit is filed without adherence to the mandatory requirements of O. 72, the suit obviously unsustainable.
• Even a preliminary objection will suffice to have it dismissed, let alone an application to have it struck-out.