Ho Hee Yik v Tee Yen Chong (JA-22NCvC-144-10/2020)

(P) (No. K/P: 541125-01-5428) SIMATI ANTARA HO CHEONG@HO KOONG CHOONG (No. K/P:490409-06-5083) sebagai Pentadbir kepada Harta Pusaka Kew Chai @ Ho Ying Choon (No. K/P: 390124-06-5129) …PLAINTIF HO HEE YIK (NO. K/:881102-10-5667) (sebagai Pentadbir ‘de bonis non’ Kepada harta pusaka Kew Chai @ Ho Ying Choon (No. K/P: 390124-06-5129) …PLAINTIF DAN

TEE YEN CHEONG (No. K/P: 750903-016779) 05/12/2025 13:58:57 JA-22NCvC-144-10/2020 Kand. 71 S/N uRyjkD7djkajrRtnecfcbw

TEE SAY HONG (No. K/P:790125-01-5935) ...DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 24)

This is a suit by the Plaintiff, the administrator of the deceased Kew Chai @ Ho Ying Choon, deceased husband of Lee Gek Kwee, deceased wife. The deceased husband was the administrator to deceased wife, who died intestate, on 30.8.2015. Deceased husband subsequently died on 26.1.2019.

The deceased wife and deceased husband solemnised their marriage customarily, with the deceased husband being the sole beneficiary of the deceased wife. The Defendants denied all these facts.

The Defendants rather, pleaded that they are the executors and beneficiaries of the deceased wife and contended that a will by the deceased wife is in existence. S/N uRyjkD7djkajrRtnecfcbw A. Suits between parties forming agreed facts

A series of applications and suits were filed by both the Defendants and the deceased husband against one another, namely suit JA-32NCVC-229-06/2016 filed by the Defendants seeking for Probate. The deceased husband then filed a citation (“sitasi”) but objected to by the Defendant 2. This suit was eventually withdrawn.

The deceased husband then filed suit JA-22NCVC-159- 08/2018 against the Defendants and 4 others. However, the death of the deceased husband on 26.1.2019 caused the withdrawal of this suit but with liberty to file pending the filing of application for Probate/Letter of Administration by Ho Cheong @ Ho Koong Choong.

Ho Cheong @ Ho Koong Choong then filed for a Letter of Administration on 11.5.2020 via OS No: JA-31NCVC -159- 05/2020, which was then granted and issued on 27.8.2020.

The Defendants in the meantime, filed OS No. JA-32NCVC- 516-09/2019 seeking for a Grant Probate, based on the will of the deceased wife. On 5.12.2019, a caveat registered as WA-Kaveat-3127-12/2019 was entered by Ho Cheong @ Ho Kong Choong. This intervened the granting of Probate to the Defendants. S/N uRyjkD7djkajrRtnecfcbw

The Plaintiff is the son of Ho Ah Kou @ Ho Tit Chung and the nephew of the deceased Kew Chai @ Ho Ying Choon. Ho Cheong @ Ho Koong Choong and Ho Ah Kou @ Ho Tit Chung are younger brothers to deceased Kew Chai @ Ho Ying Choon.

All the above are facts agreed by both parties and filed as enclosure 32. However, a subsequent event of death occurred subsequently that moved a change in the representative person acting on behalf of the Plaintiff. B. Contentious issues

The Plaintiff’s case is that the deceased wife died intestate, therefore the deceased husband was the sole beneficiary of the wife’s assets. A Letter of Administration of asset of deceased husband was subsequently obtained by Ho Cheong @ Ho Koong Choong on 27.8.2020.

The Defendants on the other hand contended that a Probate be granted to them as a search conducted at the Taman Sentosa house after the death of both Lee Gek Kwee and Kew Chai, led to the discovery of the said will.

However, it was only during trial, evidence arose that there are 2 versions of the will in existence. One not dated as produced by the Defendants in OS 2016 and the other was dated 21.3.2014 produced by the Defendant in OS 2019. This render the existence of the will, doubtful. S/N uRyjkD7djkajrRtnecfcbw

Be that as it may, on 1.9.2020, this Court decided that parties to litigate the matter as a contested probate action pursuant to Order 72 Rules of Court 2012. This subsequently moved the filing of this present suit JA-22NCVC-144-10/2020 by Ho Cheong.

Ho Cheong @ Ho Koong Choong then died on 28.4.2023. With the death of Ho Cheong @ Ho Koong Choong on 28.4.2023, this present suit was stalled. The Plaintiff then by way of OS No. JA-31NCVC-1039-09/2023 obtained a Letter of Administration De-Bonis-non to administer the deceased husband Kew Chai @ Ho Ying Choon’s of deceased wife’s assets. C. Evidence pertaining to alleged will: whether there is proof will valid or otherwise

The Plaintiff in this suit, sought for declarations for the following: a. That deceased Kew Chai @ Ho Ying Choon is a legal husband of deceased wife Lee Gek Kwee; b. The will of deceased wife is forged and/or null and void; c. Deceased wife Lee Gek Kwee died intestate and deceased husband Kew Chai @ Ho Ying Choon as the sole beneficiary of deceased Lee Gek Kwee estate; and S/N uRyjkD7djkajrRtnecfcbw d. The Plaintiff as administrator of deceased Kew Chai @ Ho Ying Choon inheritance, is entitled to a letter of administration of deceased Lee Gek Kwee (f).

With the existence of the will being a primary issue, the determination as to its validity is of utmost importance. The Plaintiff had called SP5 handwriting expert with the expert’s affidavit then marked as P7 and witness statement as PWS-5.

The Defendants did not call any expert but relied on the two attesting witnesses Mdm. Lee Swee Lan called as SD1. Mr. Choo Yin Yee, the other attesting witness, was reluctant and moved the Defendants with the decision not to call him. D. Findings by this Court

SP5 handwriting expert examined the specimen signatures of Lee Gek Kwee obtained from 6 documents such as House Loan Agreement, passport and tenancy agreement in which the signatures were marked as “S” and compared the signature in question marked as “Q” on the will (see: enclosure 35 at page 120). S/N uRyjkD7djkajrRtnecfcbw

SP5’s findings concluded that the features in the specimen “S” are not found in the questioned signature Q. SP5 was of the view that the questioned signature “Q” is of different authorship from the specimen signatures. This could only point to a forged signature of the deceased Lee Gek Kwee on the will.

DW1 in his testimony, admitted he did not witness the signing of the alleged will by Lee Gek Kwee. As to Mr Choo Yin Yee, he had shown his reluctance to testify and was subsequently dropped from being subpoena as witness for the Defendants. The fact that Mr. Choo, who appeared to be just a random worker of a restaurant goes to explain why he opted to stay away from being a witness.

All this evidence put together points to a probable conclusion that the existence of a valid will is questionable as it has failed to meet the standard required by the law as stipulated in the Wills Act 1959 and the Evidence Act 1950.

Section 5 of the Wills Act 1959 states: “Mode of execution

(1) No will shall be valid unless it is in writing and executed in manner hereinafter mentioned. S/N uRyjkD7djkajrRtnecfcbw

Every will shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction; such signature shall be made or acknowledged by the testator as the signature to his will in the presence of two or more witnesses present at the same time, and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary: Provided that every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid under this section if the signature shall be so placed at or after, or following, or under, or beside,…”

Section 68 of the Evidence Act 1950 further provides the following: “Proof of execution of document required by law to be attested

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence.” S/N uRyjkD7djkajrRtnecfcbw

So crucial is the necessary proof towards attestation as it would eliminate any undesired, forged will and thus, the Act stipulates the result of non-compliance as follows: “Proof where no attesting witness found

If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”

There is no evidence to that effect as required by both Sections 68 and 69. Rather, the absence of the other attesting witness arising from his refusal to testify invites this Court to invoke the adverse presumption of Section 114(g) of the Evidence Act. The reluctance is treated by this Court as a refusal to be cross-examined by the opposite party for fear that a result to the contrary is revealed.

As to the testimony of DW4, this Court agrees with the submission by the Plaintiff that DW4 being a beneficiary of the said will, DW4’s evidence ought not to be relied. The reason being, DW4’s evidence could not be seen as independent and free from being tainted with certain interest. S/N uRyjkD7djkajrRtnecfcbw

In any event, the provisions of the relevant laws do not include a beneficiary as the required witness to be called towards proving the attestation of the will. This being crucial in proving the authenticity and the validity of the will.

On this basis, the will does not form part of the evidence relied by this Court in its analysis of the claim. The earlier direction for the claim to be tried as a contested Probate action did not have the benefit of the expert evidence.

As highlighted earlier, 2 versions of the will are in existence. One not dated and the other with a date. SD2 when cross-examined, agreed that the date on the will was entered subsequently when the Plaintiff disputed its authenticity.

This in itself, render the existence of the will, doubtful by the fact that a party and in this case the Defendants, found they are at liberty to disturb its original state from one undated, by amending it and inserting a date on it.

As the will is now proven not a valid one, the claim by the estate of deceased Lee Gek Kwee’s can only be by way of a letter of administration, as the position in this current suit. The distribution of assets would have to be administered in accordance with the Distribution Act 1958. S/N uRyjkD7djkajrRtnecfcbw E. Whether there was a valid marriage between the deceased husband and deceased wife

The Plaintiff via its witnesses and through the acts of both the deceased husband and deceased wife had solemnised the marriage by way of a Chinese customary marriage when a tea-serving ceremony was held in January 1982, before the mother of the deceased husband. This was witnessed by SP2 a younger brother of the deceased husband.

A customary dinner was held on the same night in which SP2 was in attendance. However, DW1 elder sister of deceased wife denied any knowledge of this event.

Such customary marriage is valid, and evidence is admissible as the marriage was solemnised before the coming into force of the Law Reform (Marriage and Divorce) Act 1976. The Act came into force on 1.3.1982.

SP6 the Plaintiff is the nephew of the deceased husband, known to SP6 as the eldest uncle. SP6’s father Hoo Ah Kou @ Ho Tit Chung and deceased husband are siblings with deceased husband being the eldest brother. S/N uRyjkD7djkajrRtnecfcbw

Based on this family relationship, SP6 frequented deceased husband’s matrimonial home in Taman Sentosa, which deceased husband occupied with the deceased wife. SP6 relied on a photo and said he was a year old when he first visited the matrimonial home in 1989.

SP6 witness statement however, said he used to visit them when he was a small kid hence a clear indication of more than once. SP6 also testified of deceased wife’s presence at SP6’s grandmother’s funeral in 2010. She (deceased wife) was representing SP6’s eldest uncle (who is the deceased husband) as the eldest uncle was hospitalised for leg surgery.

SP6 was truthful in his testimonies when he admitted not being aware if the marriage of the deceased husband and deceased wife was registered, despite the solemnisation by customary marriage. This, notwithstanding SP6 knew they deceased husband and deceased wife, cohabited at the same address as shown in their Identity Cards.

The official documents such as both the deceased Identity Cards, affidavits of the deceased wife and deceased husband in the earlier suits (see: para 4 onwards of this Judgment) carry the same address at Taman Sentosa, Johor Bahru (see: Common Bundles of Documents CBODs enclosure 14). S/N uRyjkD7djkajrRtnecfcbw

The cross-examination by the Defendant of SP6 on the tax return form year 2010 (see: Additional CBODs enclosure 38 at page 125 pdf) merely suggested deceased wife was delusional when she filled up the particulars of “maklumat suami/isteri” with “Kew Chai @ Ho Ying Choon” (deceased husband).

This was not agreed by SP6 since the first page “status pada 31.12.2010” was written as “married”. Furthermore, another column titled “Jenis Taksiran” was written by deceased wife which made reference to themselves as “husband/wife”.

The Defendants called SD1 older sister of deceased wife who said that the siblings who are married will move from the family house at Kebun Teh to stay elsewhere. The deceased wife however, according to SD1 had been occupying the family house throughout.

Yet, when confronted with the ICs of the both of the deceased bearing Taman Sentosa address, SD1 was unable to explain. Hence, there is no evidence to refute the fact that both deceased husband and wife in fact, were staying at the same matrimonial house.

The documentary evidence cumulatively supported further the evidence of the existence of such marriage when photographs showing the two deceased together on more than one occasion. S/N uRyjkD7djkajrRtnecfcbw

Other documentary evidence illustrated the acts by the Defendants of recognition of the marital relationship between deceased wife and husband. This comes from the evidence of SD3 who is the nephew of deceased husband.

SD3 was the person who was tasked to manage the obituary of the deceased wife and the purchase of the urn for the deceased’s ashes. The evidence from SD3 was that he purchased the urn for 2, in the presence of Kew Chai (see: CBODs enclosure 37 at page 135 pdf.).

SD3 in fact said, Kew Chai (deceased husband) occupied the Taman Sentosa house, at the time of the death of deceased Lee Gek Kwee.

With both the deceased ICs and the death certificate also with the same address at Taman Sentosa, the irresistible inference is that both the deceased occupied the same address. This can only mean that they both had solemnised their marriage customarily.

The pronouncement in the obituary itself which was prepared by SD3 after a discussion with their family members including the mother. The pronouncement itself carry the statement that Kew Chai is the husband of deceased Lee Gek Kwee (see: CBODs enclosure 37 at page 134 pdf.) S/N uRyjkD7djkajrRtnecfcbw

In the absence from the Defendants suggesting both the deceased lived in adultery, there can be no other deduction except that both had solemnised their marriage customarily with the performance of the tea-ceremony and dinner.

At best, the Defendants merely disagreed there was such a ceremony by way of SD1’s evidence but with the presence of other evidences to prove otherwise as set out in this judgment, moved this Court to conclude that there was in fact such customary ceremony.

A land title of the Taman Sentosa house with ½ division between the two deceased was referred to by the Plaintiff to SD1. In absence of any other suggestion by the Defendants, this Court made an inevitable inference that the division arose from the customary marriage. Otherwise, there would have been no basis for deceased wife to agree to this division (see: CBODs enclosure 37 at page 17 pdf).

No explanation offered by SD1 except that the property was said to have been purchased together by both the deceased. No documentary purchase agreement was put forward to support this suggestion. As such, it remains as merely a suggestion without proof. S/N uRyjkD7djkajrRtnecfcbw

Other evidence by SD1 suggesting both SD1’s parents (deceased) objected to Lee Gek Kwee’s relationship with Kew Chai was because Kew Chai was married with 2 kids residing in Japan, however, is hearsay and inadmissible as this fact arose from SD1’s parents’ belief. SD1 also said it was told by deceased wife to SD1, all who were not available to be called as witnesses.

To the contrary, the evidence of SD1 that she agreed with her sister’s request (Lee Gek Kwee) to take care of deceased Kew Chai at the residence in Taman Sentosa when he was sick suggested that Kew Chai was not a stranger but had a marriage relationship with Lee Gek Kwee. Otherwise no reason to act as a good Samaritan to a stranger when SD1 herself is married with kids.

For all these reasons, this Court came to a finding that the Plaintiff had successfully proven the relevant facts to show that the deceased Lee Gek Kwee and deceased Kew Chai had a customary wedding and therefore had a relationship of a husband and wife between the two.

For this reason, the Plaintiff is entitled to the reliefs sought in this suit as follows: a. A declaration that deceased Kew Chai@ Ho Ying Choon (No. K/P: 390124-06-5129) is a lawful husband of deceased wife Lee Gek Kwee (No. K/P: 541125-01- 5428); S/N uRyjkD7djkajrRtnecfcbw b. A declaration that the will of deceased wife Lee Gek Kwee is forged therefore null and void; c. A declaration that deceased wife Lee Gek Kwee died intestate and deceased husband Kew Chai@ Ho Ying Choon a sole beneficiary of estate of deceased wife; and d. The Plaintiff as administrator of the estate of Kew Chai@ Ho Ying Choon is entitled to proceed towards obtaining a letter of administration of deceased Lee Gek Kwee’s estate. (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA JOHOR BAHRU Dated 11th of June 2025 Solicitors for the Plaintiff : Low Song Kuan Messrs K.S.Pang & Co Solicitors for the Defendants : Yen Heng Teng Messrs Simon Tong & Partners S/N uRyjkD7djkajrRtnecfcbw