1. ) Chan T'Shiao LI v 1. ) Malcolm Fernandez (WA-22NCvC-28-01/2023)

CHAN T’ SHIAO LI (NIRC NO: 780928-14-6104)

KIMBERLEY CHAN TSHIAO MIIN (NRIC NO: 811120-14-5028) (PASSPORT NO: A56049498) --- PLAINTIFFS

MALCOLM FERNANDEZ

CHAN MEI YEE

MARCUS CHAN JAU CHWEN (NRIC NO: 840507-14-5009) 16/10/2025 14:57:02

LOW BENG CHOO (NRIC NO: 580529-10-5608) --- DEFENDANTS GROUNDS OF JUDGMENT (application by the Plaintiff under Enclosure 219)

The Plaintiff has filed an application under Enclosure 219, where the Plaintiff is seeking the Court’s direction to determine which party ought to be called upon to lead evidence first in this matter.

This Court dismissed the Plaintiff’s application on 25 April 2025. The Plaintiff has filed a Notice of Appeal on 16 May 2025. The Grounds of Judgment is prepared accordingly.

In the main suit before this Court, the Plaintiff, according to the Amended Statement of Claim, seeks a declaration that the alleged 1st Will, 2nd Will and/or the Impugned Will are null and void.

The grounds relied upon include, inter alia, that the said Wills were not duly executed, that the Deceased lacked testamentary capacity at the material time, and that there were suspicious circumstances surrounding the making of the said Wills.

In this Notice of Application under Enclosure 219, the Plaintiffs are praying for the followings:

All the Defendants open their respective cases first by calling all their witnesses;

All the Defendants close their cases; and

Only thereafter, the Plaintiffs opened their cases by calling the Plaintiffs’ witnesses.

The Defendants objected to the application and submitted that the application has no merits because –

the Plaintiffs failed to show that all the issues in the present case are to be established by the Defendants;

the Plaintiffs failed to appreciate the burden of proof in a probate action; and

D1 and/or the Defendants have not agreed to open its and/or their case(s) first.

Furthermore, no ruling was made by the then learned Judicial Commissioner, YA Tuan Leong Wai Hong, ordering the Defendants to start the case.

Before this matter is brought before this Court to be heard, the Plaintiffs' solicitors had earlier requested the learned Judicial Commissioner to make a ruling on who should commence the case as the Defendants have the burden to prove among other things, the due execution of the alleged Wills, the Deceased testamentary capacity, and to dispel any suspicious circumstances surrounding the making of the alleged Wills.

The learned Judicial Commissioner then had, inter alia, directed and informed parties as follows:

Parties are to agree on who shall commence the case, whether the Plaintiffs or the Defendants. If parties are unable to agree, an application is to be filed in the Court for the Court to determine this issue.

As for the calling of the Defendants' witnesses. the Court will not micromanage the sequence of witnesses. However, the Court will follow the sequence in accordance with the Defendants named in the suit, i.e. D1 and his witnesses, followed by D2, D3 and D4 and their respective witnesses.

However, since parties couldn’t reach any consensus, the application came in before me to decide accordingly.

It is trite that the order of witnesses should be left to the parties calling the witnesses. It is not a matter that can be interfered with or usurped by an opposing party , be it the Plaintiffs in this instance who are asking the Court to intervene and to impose upon the Defendants, the Plaintiffs’ preferred sequence of the Defendants’ witnesses .

Section 135 of the Evidence Act 1950 reads: “135. Order of production and examination of witnesses The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court.”

On section 135, Sarkar Law of Evidence, Malaysia Edition (2016) Vol. 3 provides the following commentary: “……the court should be very reluctant to interfere with the discretion of counsel as to the order in which witnesses should be called.”

The application of such fundamental principles can be observed in the case cited by the 4th Defendant in his submission, Wee Kok Bin v Aseambankers Malaysia Bhd [2011] 5 CLJ 4665 wherein the High Court held: “[5] As a matter of principle, the selection, choice and order of witnesses should be left to the party calling them, be it the plaintiff or defendant. It cannot be right to allow an opposing party to interfere with this right, unless in very exceptional circumstances…”

Therefore, it is already a settled principle that the party who asserts and seeks to establish a fact bears the burden of proof. In this case, where the matters are concerning the validity of testamentary instruments, the general principle is that the party who challenges the validity of the Will bears the evidential burden of proving the basis of that challenge. This is consistent with the established principle that he who asserts must prove.

Hence, the Court believes that, where a Will is propounded by one party and challenged by another, the party alleging invalidity, that is, the Plaintiff, is to be called upon to lead evidence first. This is to ensure that the Plaintiff, the party with the burden of proof, presents their case before any rebuttal is required from the opposing party, the Defendant.

It means that even though the Defendant is the propounder, in contentious probate proceedings, the party who asserts a Will’s invalidity, the Plaintiff, should open the case. It is the Plaintiff who bears the primary obligation to establish the facts necessary to support such a declaration.

While the Defendant may eventually seek to propound one or more of the Wills as valid and to give them legal effect, I believe that it is the Plaintiff who is asking the Court to declare that the Wills are invalid, then the burden of proving those claims lies with the Plaintiff at least at this initial stage of the case.

In short, the Court reiterates that since the Plaintiff is trying to prove the Wills are invalid, they are the ones who must go first and bring the evidence to support that claim. The duty is not on the Defendant, who doesn't need to prove the Wills are valid until or unless the Plaintiff’s case requires a response.

Accordingly, the Court directs that the Plaintiff shall proceed first in the presentation of evidence in this matter.

Cost in the cause. Dated : 13th October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Plaintiffs : Messrs. Sitham & Associates Advocates & Solicitors For The 1st Defendant : Messrs Cecil Abraham & Partners Advocates & Solicitors For The 2nd Defendant : Messrs. Raj, Ong & Yudistra Advocates & Solicitors For The 3rd Defendant : Messrs. Dennis Nik & Wong Advocates & Solicitors For The 4th Defendant :