Loke Suat Choo v Loke Yi Lin (32NCVC-300-05/2013)

This is an appeal by the Applicant under Enclosure 122 against the decision of the learned Registrar of the High Court delivered on 23 January 2025. The Respondent had earlier filed a citation under Enclosure 98. In response, the Applicant filed an application under Enclosure 106 seeking to strike out the said citation.

The Registrar, after hearing the parties, dismissed the Applicant’s application under Enclosure 106 on 23 January 2025. The Registrar held that the citation under Enclosure 98 was properly issued and refused to strike it out. Accordingly, the Applicant’s application under Enclosure 106 was dismissed.

Dissatisfied with the Registrar’s ruling, the Applicant has filed the present appeal under Enclosure 122, seeking to set aside the Registrar’s decision and to have the citation under Enclosure 98 struck out.

The Deceased, Koay Saw Tin (“the Deceased”), passed away leaving a Will dated 4 August 2010 (“the 2010 Will”), under which the Applicant was named as the executrix. Pursuant to the 3 2010 Will, a Grant of Probate was duly issued to the Applicant on 17 July 2013.

The Respondent claims to have discovered a later Will dated 2 February 2013 (“the 2013 Will”). On this basis, the Respondent has initiated multiple proceedings to challenge the 2010 Will and to revoke the Grant of Probate. Among others, the Respondent filed a writ probate action in case no. PA-22NCvC- 50-04/2018. The Applicant applied to strike out the Respondent’s writ and statement of claim. The High Court dismissed the application with costs of RM2,000.00, but on 27 March 2019, the Court of Appeal allowed the Applicant’s appeal and struck out the writ and statement of claim on grounds of procedural non-compliance.

The Respondent thereafter filed an application to intervene in the present suit by way of Enclosure 64. The High Court allowed the application on 20 February 2020. However, on 2 August 2021, the Court of Appeal overturned the High Court’s decision and barred the Respondent from intervening in this matter.

Despite this, the Respondent filed a citation under Enclosure 98, requiring the Applicant, as executrix, to bring and deposit the Grant of Probate dated 17 July 2013 with the Court registry. The purpose of the citation is to facilitate the Respondent’s intended challenge to the 2010 Will by asserting the existence of the 2013 Will.

The Applicant, in turn, filed Enclosure 106 to strike out the citation. On 23 January 2025, the learned Registrar dismissed the application. Dissatisfied with that decision, the Applicant has now filed the present appeal under Enclosure 122 to a Judge in Chambers. C.

The Applicant contends that the Respondent has wrongly invoked the citation procedure under Order 71 of the ROC 2012. The Applicant submits that citations relating to the revocation of probate or a will properly fall under contentious probate proceedings pursuant to Order 72, not under Order 71 which governs non-contentious probate matters. In any event, the Respondent failed to comply with the procedural requirements under Order 72, in particular by not filing an affidavit verifying the statements of fact before the issuance of the citation. The failure to comply with the prescribed procedure, it is argued, renders the citation defective and liable to be struck out.

The Applicant submits that the Respondent’s citation amounts to an abuse of process. The Respondent has previously made multiple unsuccessful attempts to challenge the 2010 Will and to revoke the Grant of Probate. These attempts, having been conclusively dismissed by the Court of Appeal, render the present citation barred by the doctrine of res judicata. The Applicant further contends that the Respondent lacks legal standing to pursue the citation. The Court of Appeal has already barred the Respondent from intervening in this suit, and she has not obtained any order making her a party to these proceedings. As such, the Respondent cannot unilaterally treat herself as a party and institute the citation. On this ground also, the citation ought to be struck out. D.

The Respondent asserts that a citation is merely a procedural tool designed to notify the executor of an impending challenge to a grant of probate. It does not constitute a substantive claim in itself and therefore should not be prematurely struck out. The Respondent contends that the principle of res judicata is not applicable, as the merits of the Respondent’s claim have never been adjudicated by any Court. All previous proceedings initiated by the Respondent were struck out on technical or procedural grounds without any determination on the substantive merits.

The Respondent further submits that the jurisdiction to strike out under Order 18 rule 19 of the Rules of Court 2012 is to be exercised sparingly and only in clear cases where the claim is obviously unsustainable. A striking-out application should not be allowed where there are issues of law or fact requiring mature consideration and full argument.

The Respondent contends that they have a reasonable cause of action against the Applicant. The Respondent maintains that there exists a later Will of the Deceased dated 2 February 2013 (“the 2013 Will”), under which the Respondent was appointed as the sole executor of the estate. In light of this, the Respondent submits that the Grant of Probate issued on 17 July 2013 in Probate Petition No. 32NCvC-300-05/2013, based on the earlier Will dated 4 August 2010, is invalid and ought to be revoked.

The Respondent also disputes the Applicant’s contention that the Court is functus officio after granting the Grant of Probate. It is submitted that under Order 72 rule 7 of the Rules of Court 2012, a person intending to revoke a grant of probate may apply for a citation requiring the grantee to bring in the grant. Accordingly, the Court retains jurisdiction to entertain such challenges even after probate has been granted. E.

The Applicant raised a preliminary objection under Order 21 rule 5 of the Rules of Court 2012 (“ROC 2012”), which provides that where the Respondent has not paid the costs of a previous action brought on the same or substantially the same cause of action, the Court shall stay the subsequent proceedings until such costs are paid. The Applicant submit that rule is mandatory in nature and designed to prevent vexatious and repetitive litigation while costs orders remain unsatisfied.

In the supporting affidavit (Enclosure 107), the Applicant itemised the outstanding costs orders amounting to RM14,000.00 which the Respondent had been ordered to pay in related proceedings. It was contended that the Respondent ought not to be permitted to proceed with Enclosure 98 until such costs were satisfied. Further, following the Registrar’s decision on 23 January 2025, the High Court in OS No. PA-24NCvC-1510- 12/2024 awarded an additional RM5,000.00 in costs against the Respondent when her caveat was removed on 14 February 2025. Accordingly, the Respondent is presently indebted to the Applicant in the sum of RM19,000.00 in unpaid costs.

The Applicant maintains that by virtue of Order 21 rule 5 ROC 2012, all further steps under Enclosure 98 must be stayed until the Respondent has discharged her liability for the said costs. The learned Registrar, however, failed to consider or make any determination on this threshold issue, thereby committing an error warranting appellate intervention.

Taking the case before me as a whole, I am mindful that Order 21 rule 5 ROC 2012 is designed to prevent vexatious or duplicative litigation, and the default position is that subsequent proceedings should not be allowed to continue until earlier costs are paid. However, the Court retains an inherent discretion under Order 92 rule 4 ROC 2012 to prevent injustice.

In the present case, while it is undisputed that the Respondent has yet to satisfy the outstanding costs orders, I am equally conscious that the Respondent seeks to assert rights under an alleged later Will. To impose a strict stay at this stage may effectively shut out her claim without affording it judicial scrutiny, thereby causing potential injustice if the later Will were ultimately shown to be valid.

Having regard to these considerations, I take the view that the balance of justice lies in allowing the proceedings to continue, notwithstanding the unpaid costs. To order a stay would serve only to further delay and prolong litigation that has already spanned several years. In the exercise of my inherent discretion, I therefore decline to grant a stay and will proceed to consider the present application on its merits. F.

Having carefully considered the submissions of both parties and the documents before me, I am of the view that this appeal must be allowed. My reasons are as follows.

On the issue of procedure, I agree with the Applicant that the Respondent has wrongly invoked the citation procedure under Order 71 ROC 2012. Citations to bring in or to challenge a grant fall squarely within contentious probate proceedings under Order 72 ROC 2012. The Respondent’s failure to comply with the mandatory requirements of Order 72 — in particular, the omission to file an affidavit verifying the facts — renders the citation defective and procedurally irregular. In my judgment, the learned Registrar erred in treating the citation as valid.

I further find merit in the Applicant’s contention that the Respondent’s repeated attempts to challenge the 2010 Will and the Grant of Probate amount to an abuse of the Court’s process. The Respondent has already had multiple opportunities to ventilate her claim. The writ probate action commenced in 2018 was struck out by the Court of Appeal on 27 March 2019. The Respondent’s application to intervene in this suit was likewise dismissed on appeal by the Court of Appeal on 2 August 2021. While the Respondent argues that res judicata does not apply as the merits have not been adjudicated, the principle of finality of litigation and the prevention of vexatious proceedings must also be respected. To permit yet another collateral attack through a defective citation would undermine the integrity of the judicial process.

I also do not accept the Respondent’s submission that a citation is a mere procedural tool immune from scrutiny under Order 18 rule 19 ROC 2012. While a citation is procedural in form, it is nonetheless a step that directly affects the rights and obligations of the executrix. Where a citation is issued in breach of the rules or in circumstances amounting to an abuse of process, the Court retains the inherent jurisdiction to strike it out.

Moreover, the rulings of the Court of Appeal on 27 March 2019 (PA-22NCvC-50-04/2018) and 2 August 2021 (appeal against Enclosure 64) have conclusively determined the Respondent’s lack of standing to challenge the 2010 Will and the Grant of Probate. In light of these appellate decisions, the filing of yet another citation to mount a collateral challenge is plainly an abuse of the Court’s process and cannot be permitted to stand.

For these reasons, I am satisfied that the learned Registrar erred in dismissing the Applicant’s application under Enclosure

The appeal under Enclosure 122 is therefore allowed. The citation issued under Enclosure 98 is struck out. Costs of this appeal are awarded to the Applicant in the sum of RM5,000.00, subject to allocator. Bertarikh 17 September 2025 SGD (Rozana binti Ali Yusoff) Hakim Mahkamah Tinggi Pulau Pinang Kompleks Mahkamah Pulau Pinang Pulau Pinang Peguam bagi pihak Pemohon: Tan Kah Hoo Loh Li Lian Tetuan Loke Suat Choo Peguam bagi pihak Responden: Emily Khoo Lean Yong Tetuan Phee, Chen & Ung