Dato' Richard Dilaan Morais v 1. ) Raam Kumar A/L M. Suppiah (AA-22NCvC-34-04/2024)

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1 IN THE HIGH COURT IN MALAYA AT IPOH 5 IN THE STATE OF PERAK DARUL RIDZUAN CIVIL SUIT NO.: AA-22NCvC-34-04/2024 BETWEEN 10 DATO’ RICHARD DILAAN MORAIS (NRIC NO.: 660223-10-6923/A0514208) …PLAINTIFF AND 15

Preamble

pursuant to Order 20 rule 5 and Order 92 rule 4 of the Rules of Court 2012, raises a fundamental question of whether the court should allow an amendment that appears, on the face of it, meritorious, but is in reality, tainted with bad faith, procedural abuse and derail the proceedings 40 Background facts [2]. The plaintiff filed a claim alleging fraudulent and negligent acts by the defendants in probating a Will and administering the estate of the plaintiff’s late brother, Dato’ Anthony Kevin Morais. The plaintiff claims that the defendants have tricked the court into approving a 45 2005 Will, which the plaintiff claims is suspicious. The plaintiff contends that the defendants had coerced him into affirming a false affidavit to support their actions in making an application to replace the original Will and eventually obtaining the Grant of Probate. According to the plaintiff, the defendants have misrepresented 50 material facts and acted recklessly in administering the estate, causing harm to the plaintiff and the interests of other beneficiaries. [3]. Whilst the plaintiff’s objection to the defendants’ administration of the estate is said to be in the interest of the estate, he objected to one of his brothers, Charles Suresh Morais, a rightful beneficiary, 55 intervening in the case. This raises questions about whether the plaintiff is actually motivated by personal gain when other beneficiaries support the defendants. [4]. However, after filing the suit, the plaintiff filed an amendment application, where he tried to bring up a new Will dated 2015 60 S/N UmiFAouMzEyhabjfRbidHw (2nd Will), executed in the United Kingdom, claiming that it supersedes the 2005 Will (the Impugned Will). The defendants strongly oppose this application, contending that it is a deliberate afterthought to frustrate the defendants’ application to strike out the claim, which was filed earlier. The defendants contend that the 65 plaintiff already knew about the 2015 Will back in 2015, but did not act to do the needful until later. The key issue is whether the amendment sought by the plaintiff is truly in pursuit of justice, or is just an attempt to suit his own interests. Plaintiff’s case 70 [5]. The plaintiff submits the amendment of the Writ and Statement of Claim [‘SOC’] to include two key facts: a) the discovery of a 2nd Will dated 13.8.2015, which revokes the previously Will (2005 Will); and b) the need to add new defendants to the case. The plaintiff 75 contends that the defendants fraudulently concealed the existence of the 2nd Will while obtaining a Grant of Probate using a photocopy of the 2005 Will. The amendments according to the plaintiff are necessary in the 80 interest of justice and the amendment does not change the nature and character of the plaintiff’s case and does not prejudice the defendants. S/N UmiFAouMzEyhabjfRbidHw Defendant’s case 85 [6]. The defendants together argue that the plaintiff’s application (Enclosure 71) to amend the Writ and Statement of Claim ought to be dismissed for multiple reasons, primarily because it is made in bad faith, that it fundamentally changes the character of the case, it is an abuse of court process and it is prejudicial to the defendants. 90 [7]. Firstly, the defendants assert that the plaintiff’s claim of discovering the 2nd Will dated 13.8.2015, only in August 2024 is a false claim. The defendants provide documentary evidence, including letters from 2015, showing that the plaintiff was aware of the 2nd Will’s existence and that it is not valid. They contend that the plaintiff knew 95 of it nearly a decade earlier. The defendants contend that this constitutes a deliberate misrepresentation and an attempt to mislead the Court. The delay in raising this claim, coupled with the plaintiff’s previous actions, the defendants contend they strongly indicate mala fide on the part of the plaintiff rather than a genuine 100 effort to pursue justice in the interest of the estate of Dato’ Anthony Kevin Morais. [8]. Secondly, the defendants challenge the legal validity of the 2nd Will, that it does not comply with the statutory requirements under the Wills Act 1959. Specifically, the Will lacks the signatures of two 105 witnesses at the time of execution, rendering it legally unenforceable. Since the 2nd Will fails to meet the formalities required for a valid testamentary document, which fact is known to the plaintiff at material time. The 2005 Will remains the only valid Will, and the Grant of Probate issued based on it cannot be revoked 110 on the basis of the 2nd Will. S/N UmiFAouMzEyhabjfRbidHw [9]. The defendants argue that the proposed amendments fundamentally change the character of the suit, shifting it from a challenge against the 2005 Will’s probate process to an attempt to enforce the 2015 Will i.e. the 2nd Will. This not only contradicts the 115 plaintiff’s original claims but also forces the defendants to completely revise their defence and their strategy. This causes serious prejudices to the defendants and it is procedurally unfair. Courts have consistently held that amendments should not be allowed when the amendment changes the character of the case to 120 the detriment of the opposing party. [10]. The defendants also contend that the plaintiff’s application constitutes an abuse of the court process and a tactical manoeuvre to derail their striking out application (Enclosure 46). They contend that the plaintiff’s alleged newfound evidence of 2nd Will executed 125 in 2015, emerged only after the defendants filed striking out application of the original SOC, suggesting that the amendment is not aimed at securing justice but rather it is to obstruct the defence’s case. The plaintiff's motivations appear self-serving, as this court had previously decided when disposing of another interlocutory 130 application for security for costs, wherein this court has already raised concerns about whether the plaintiff is acting in the estate's best interest or pursuing personal gains. [11]. Finally, the defendants argue that allowing the amendments would cause irreparable prejudice to them. They emphasise that their legal 135 strategy and evidence were prepared based on the original claims, and suddenly introducing the 2nd Will, force them to re-strategies their defence and that such prejudice cannot simply be S/N UmiFAouMzEyhabjfRbidHw compensated with costs, as the entire focus of the case has changed. 140 Findings of the Court Does the Amendment application lack Bona Fide [12]. It is a well-settled principle of law that amendments should only be allowed when made in good faith. The Federal Court in Yamaha Motor Co. Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213; 145 [1983] 1 CLJ 191; [1982] 1 MLRA 417, established three (3) criterion and that is (1) whether the application is bona fide; (2) whether any prejudice to the other side can be compensated by costs; and (3) whether the amendment would change the suit's character. These criteriors are cumulative and must all be satisfied. 150 This approach ensures that amendments do not cause injustice to the opposing party. [13]. Further, it must be noted that while these principles are foundational, they must be applied with due regard to the specific circumstances of the case, including the stage at which the application is made, as 155 considered in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1; [20155] 4 AMR 31; [2015] 4 MLJ 188; [2015] 3 MLRA 652. This careful and flexible approach helps preserve the fairness and integrity of the judicial process while allowing for necessary flexibility. 160 [14]. The defendants have established through documentary evidence (Exhibits “T-1” to “T-4”) that the plaintiff was aware of the 2nd Will S/N UmiFAouMzEyhabjfRbidHw as early as 2015, contradicting his assertion that he only discovered it in August 2024. The letter dated 26 November 2015 (Exhibit CSM- 1) explicitly acknowledges the plaintiff’s prior knowledge of the 2nd 165 Will and that it is unenforceable. The plaintiff’s claim of recent discovery of the 2nd Will is factually false. Even if the plaintiff has a valid and justifiable reason for wanting to amend the Statement of Claim to introduce the 2nd Will, which may on the face of it appear to be with merits, the amendment would nevertheless be doomed to 170 fail because it is made in bad faith. [15]. The 4th defendant too submits and relies on the same letter dated 26.11.2015, where the plaintiff was then represented by Messrs. Aru & Co. as early as 2015, the said letter dated 26.11.2015 (Exhibit CSM-1) confirms that both the plaintiff and his solicitors were aware 175 of the 2nd Will and had taken the position that it was invalid, choosing instead to proceed based on the 2005 Will. It must be noted there is no evidence that the plaintiff had disputed the contents of the letter dated 26.11.2015. Furthermore, the plaintiff, through his later solicitors, (Messrs. Tay Chai Huat & Co) by a letter 180 dated 15.02.2021 expressly confirmed and consented to a redistribution agreement, under which 23.33% of the estate was to be allocated to the 4th defendant based on 2005 Will. These facts severely undermine the plaintiff’s credibility and confirm the amendment is not bona fide with serious prejudice to the 185 defendants. [16]. Having previously agreed to rely on the 2005 Will on the basis that the 2nd Will was invalid, and having further consented to the redistribution of the estate, including the 23.33% allocation to the S/N UmiFAouMzEyhabjfRbidHw 4th defendant, the plaintiff's present attempt to now enforce the 2nd 190 Will amounts to approbating and reprobating from his earlier position. This conduct, in effect, lays a trap for the 1st and 2nd defendants, who acted in reliance on the plaintiff’s earlier stance. Such an abuse of the court’s process cannot be condoned. Accordingly, the Court exercises its discretion to refuse the 195 amendment, which is tainted with bad faith. [17]. The plaintiff’s failure to disclose the existence of the 2nd Will at the time of the first probate application, and his failure to challenge the Grant of Probate on that basis, raises serious concerns about his credibility and whether the application was made in good faith. 200 Instead of raising this fundamental issue during the initial probate proceedings, the plaintiff initiated a separate action to challenge the Grant of Probate. What is more telling is that, even in the current suit, the plaintiff did not plead the existence of the 2nd Will until recently, on the pretext that he had just obtained its original physical 205 copy, when in fact the amendment sought was made only after the defendants had filed an application to strike out the plaintiff’s claim. [18]. The plaintiff’s conduct raises an essential question: if he truly believed the 2nd Will is significant, why did he not raise it at the first available opportunity? The plaintiff’s deliberate omission or failure 210 to raise such a crucial issue at both the probate stage and at the commencement of this suit, only to introduce it later through an amendment, does not give the impression of a bona fide application. Rather, it reeks of bad faith and a strategic manoeuvre, attempting to change the character of the claim, to serve his own interests. If 215 such behaviour does not constitute bad faith, then what else would? S/N UmiFAouMzEyhabjfRbidHw [19]. The plaintiff’s delayed reliance on the 2nd Will, despite being fully aware of its existence from the outset, suggests an opportunistic manoeuvre rather than a genuine effort to correct an omission. This conduct accords with the principles in Everise Hectares Sdn Bhd 220 v Citibank Bhd [2011] 2 CLJ 25 ; [2011] 2 AMR 705 (refd); [2010] 3 MLRA 306; [2010] MLJU 1379, where the Court of Appeal, relying on a well-established line of cases such as Tetuan Tanjung Teras & Ors v Tetuan Syn Tai Hung Trading Sdn Bhd [2003] 7 CLJ 124; [2003] 4 MLJ 465; [2003] 2 MLRH 547; [2003] AMEJ 0114, 225 Lim Nyang Tak Michael v ACE Technologies Sdn Bhd [1995] 1 LNS 118; [1995] 4 MLJ 615, Ismail bin Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 2 CLJ 632 ; [1988] 1 MLRH 186; [1988] 3 MLJ 348; [2024] MLRHU 1734, stated that an application should be dismissed if it constitutes a tactical ploy rather 230 than a legitimate amendment. The relevant passage is reproduced below: “[38] Tactical manoeuvrings were frowned upon by the courts in the following cases. [39] In Tetuan Tanjung Teras Sdn Bhd & Ors v Tetuan 235 Syn Tai Hung Trading Sdn Bhd [2003] 4 MLJ 465, where Low Hop Bing J (now JCA) aptly said at page 471 of the report: "The defendants' application herein is made at the appeal stage after the learned 240 sessions court judge has arrived at a decision upon consideration of all the pleadings, affidavits and exhibits before him. It seems to me that this is a tactical manouevre amounting to an abuse of the 245 S/N UmiFAouMzEyhabjfRbidHw process of the court and should be disallowed: Ismail bin Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348." [40] In Lim Nyang Tak Michael v ACE Technologies 250 Sdn Bhd [1995] 4 MLJ 616, where Abdul Kadir Suleiman J (later FCJ) rightly held that: "lt was not a question of negligence to plead all those matters in the original defence but a tactical manoeuvre and done in bad faith 255 to delay the rights of the plaintiff on his claim. The application to amend the defence after exposure by the plaintiff in his affidavit in support was a tactic to confuse the issues by creating imaginary 'triable issues' and to 260 stall the plaintiff of his rights. If this was allowed, it would unnecessarily cause prejudice to the plaintiff which could not be compensated by costs." [41] In Ismail bin Ibrahim & Ors v Sum Poh 265 Development Sdn Bhd & Anor [1988] 3 MLJ 348, where Mohamed Dzaiddin J (later Chief Justice of Malaysia) aptly said: "The rule governing the amendment of pleadings is that the court will allow such 270 amendments as will cause no injustice to the other parties. However, there are two circumstances in which an amendment to add an allegation of fraud would not be permitted: (a) where the facts giving rise to 275 the plea of fraud were known at the time of the original pleading and (b) where the S/N UmiFAouMzEyhabjfRbidHw delay in pleading fraud was in connection with some tactical manoeuvre." 280 [20]. During the probate application before Justice Bhupindar Singh Gurcharan Singh Preet, the plaintiff was fully aware that the Grant of Probate was obtained using only a photocopy of the 2005 Will. Therefore, the claim that the 2nd Will was not raised earlier due to the absence of its original copy is baseless (at least at the instance 285 of filing this suit). It is evident that the plaintiff’s proposed amendment is merely an attempt to sustain this action. Without relying on the 2nd Will, the plaintiff cannot substantiate his challenge against the 1st defendant’s alleged dereliction of duty, and by extension, the 2nd defendant’s liability. This move appears 290 strategic, particularly in response to the defendants’ striking out application, suggesting that the plaintiff fears his case would be summarily disposed of without ever seeing the “light of trial”. [21]. The plaintiff alleges that the 1st defendant, acting as executor, failed to disclose the 2nd Will during probate proceedings and, together 295 with the 2nd and 4th defendants, fraudulently concealed its existence to obtain probate under the 2005 Will. However, the credibility of this allegation is weakened by the plaintiff’s own contradictory conduct. The plaintiff had previously accepted the 2005 Will and consciously chose not to raise the 2nd Will, and 300 consented to the probate process whilst being present in chambers before the judge. This inconsistency in conduct casts serious doubt on the plaintiff’s current motives for seeking to amend his pleadings to introduce the 2nd Will. S/N UmiFAouMzEyhabjfRbidHw [22]. This Court is of the view that the plaintiff’s conduct is not only in bad 305 faith but also amounts to an abuse of the court process. Furthermore, the amendment sought makes allegations that significantly impact the 1st and 2nd defendants’ reputations and careers as lawyers, making the plaintiff’s claims all the more serious and fortifying bad faith. The 1st and 2nd defendants is the executor 310 and solicitors for the estate in administering the Deceased’s estate. Prejudice to the defendants [23]. The amendments sought would fundamentally change the character of the case, requiring the defendants to revise their entire defence. This and such prejudices as mentioned in earlier paragraphs cannot 315 be adequately compensated by costs, as held in the case of Yamaha Motor Co. Ltd (supra). Judicial observation of the 2nd Will’s validity [24]. Even if the 2nd Will were to be introduced, it would not meet the testamentary formalities in section 5(2) Wills Act 1959 and section 320 9(c) & (d) of the Wills Act 1837 (United Kingdom), which mandates that a will must be signed by the testator in the presence of two witnesses, who must in turn, sign it in his presence. The defendants have submitted evidence that the 2nd Will lacks these formal requirements, rendering it legally unenforceable. Importantly, 325 this fact was well within the knowledge of the plaintiff and his then solicitor at all material times, yet they proceeded with proving the 2005 Will until the Grant of Probate was issued. For these reasons, S/N UmiFAouMzEyhabjfRbidHw I do not propose to dwell further on the issue of the validity of the 2nd Will, what is stated here shall suffice. 330 Plaintiff’s Former Solicitors’ Knowledge of the 2nd Will [25]. The evidence before this Court establishes that the plaintiff’s former solicitors were aware of the existence of the 2nd Will as early as