Chapter 5 - Contentious Probate Proceedings, O.72

Question 1

CONTENTIOUS PROBATE PROCEEDINGS, O.72

Overview

Answer 1

1) What & examples of contentious probate proceedings

2) Procedures

Question 2

WHAT & EXAMPLES OF CONTENTIOUS PROBATE PROCEEDINGS

Answer 2

WHAT:

1) Definition in ROC - 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.

2) Definition in PAA - 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.

EXAMPLES OF CPP:

• challenging validity of a will
• revoking the grant of probate or LA

Question 3

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Overview

Answer 3

1) Compliance with O.72
2) Mode of commencement
3) Service
4) Entry of appearance
5) Default in appearance
6) Statement of claim
7) Default of pleadings
8) Case management & trial
9) Discontinuance of an action
10) Agree to compromise

Question 4

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Compliance with O.72

Answer 4

1) Dr. Shanmuganathan v Periasamy Sithambaran (FC):
- Provisions under O.72 are to be strictly complied with.
2) 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.
3) Under common law - YAP TECK NGIAN v YAP HONG LANG (FC, 2007):

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

4) Effect of & P.O on non-compliance - DEBORATI DAS GUPTA v DEB BRATA DAS GUPTA (HC, 2015):

• 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.

Question 5

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Mode of commencement

Answer 5

1) O.72, r.2
- shall be begun by writ, issued by the Registry.
2) Neo Ah Yan v Ong Leng Choo:

• proper commencement of contentious probate action is by way of writ;
• otf, suit commenced by OS is struck out with liberty to file a writ.

Question 6

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Service

Answer 6

O.10, r.1

• as per usual writ.
• i.e. personal service or AR registered post.

Question 7

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Entry of appearance

Answer 7

O.72, r.6

• within 14 days.

Question 8

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Default of appearance

Answer 8

O.72, r.10

• O.13 shall not apply, i.e. no default judgment to be entered in probate action.
• action is to be proceeded as if D has entered appearance.
• must first file affidavit proving due service before applying for leave to proceed.

Question 9

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Statement of claim - service

Answer 9

O.72, r.11

• before the expiration of 6 weeks after the entry of appearance; or
• 14 days after the filing of affidavit by D.

Question 10

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Statement of claim - contents

Answer 10

O.72, r.13

• contents depend on nature of dispute:

1) dispute the interest of D - P must denies the interest of D;
2) dispute the interest of party claiming entitlement to LA - P must prove that he would be entitled to the interest of the estate.

Question 11

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Default of pleadings

Answer 11

O.72, r.14

• O.19 does not apply, i.e. no default judgment shall be entered in probate proceedings;
• outcome: either court discontinues the action or party applies to court to set down for trial.

Question 12

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Case management

Answer 12

O.72

Question 13

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Trial

Answer 13

O.72

Question 14

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Discontinuance of action - the law

Answer 14

O.72, r.15

• O.21 does not apply;
• A party may apply by way of notice of application to discontinue the action;
• Court may order the action to be discontinued as it thinks just;
• Court may order the grant of probate or LA be made to the person it thinks entitled to.

Question 15

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Discontinuance of action - application

Answer 15

Chin Soo Ling & Ors v Teh Lay Gaik

• P discontinued the action;
• Court allowed D’s counterclaim with costs.

Question 16

PROCEDURES FOR CONTENTIOUS PROBATE PROCEEDINGS, O.72

Agree to compromise

Answer 16

O.72, r.16

• when the party agrees to a compromise, the action may be set down for trial with the leave of the Court.