Patminderjit Singh Ruba v Sharin Kaur Ruba A/P Gurubachan Singh (BA-32NCvC-963-09/2024)

The Applicant, Patminderjit Singh Ruba, filed this application for a Grant of Probate in respect of the estate of the deceased, Gorbachan Singh A/L Gorbak Singh, pursuant to an Originating Summons filed on 9 September 2024 under the Probate and Administration Act 1959 and Order 71 of the Rules of Court 2012.

The application was initially filed on an ex parte basis. However, prior to the hearing, Sharin Kaur Ruba (the Caveator) lodged a caveat, subsequently raising allegations challenging the validity of the Will dated 28 June 2022, including allegations of S/N NcUnR38dekGrtkwkLr/7g suspicious circumstances, undue influence, mala fide conduct and fraud.

As a result of the caveat, the application became contested and required this Court to determine the proper procedural course to be adopted, including whether the matter ought to proceed as a contentious probate under Order 72 of the Rules of Court 2012 or whether it could be disposed of summarily under Order 71, rule 38.

The deceased passed away on 2 June 2024 in Australia. He was survived by his widow and three children, including the Applicant and the Caveator.

On 9 September 2024, the Applicant filed an Originating Summons seeking a Grant of Probate in respect of the Will dated 28 June 2022 (the Will), which was executed in Perth, Australia, in the presence of two witnesses. The Applicant was named as executor under the said Will.

On 7 October 2024, the Caveator lodged a caveat against the estate. Subsequently, the Caveator filed an application to intervene (Enclosure 11), supported by an affidavit (Enclosure 12), in which she alleged, inter alia, that: an earlier Will dated 7 June 2022 existed; the Will relied upon by the Applicant was executed in suspicious circumstances; the Will was tainted by S/N NcUnR38dekGrtkwkLr/7g undue influence, mala fide conduct and fraud; and the deceased’s lawful wife was excluded from the Will.

On 8 November 2024, the Applicant served a Warning to Caveator pursuant to Order 71, rule 37 of the Rules of Court

The Caveator entered an appearance to the Warning on 21 November 2024.

The Applicant objected to the Caveator’s position on the grounds that the Caveator did not clearly state her interest in the caveat; although the Caveator was a beneficiary under the Will, her objections appeared to be advanced on behalf of the deceased’s widow; and no Power of Attorney or other legal authority was produced to justify the Caveator acting on behalf of her mother.

During case management, this Court directed the Caveator to file a citation supported by an affidavit. Alternatively, the Caveator was directed to commence a writ action if she did not wish to file a citation.

At the next hearing, the Caveator failed to comply with the Court’s directions and maintained the position that the Applicant should initiate the probate action. S/N NcUnR38dekGrtkwkLr/7g

This Court first considered the procedural posture of the matter. The Applicant’s Originating Summons was initially filed as an ex parte probate application under Order 71 of the Rules of Court 2012. Upon the filing of the caveat, the application became contested.

Order 71, rule 38 confers upon the Court two options once a probate matter becomes contested, namely:

to dispose of the matter in dispute summarily; or

to direct that the provisions of Order 72 apply.

In the present case, the Caveator raised serious allegations against the Will, including allegations of suspicious circumstances, undue influence, mala fide conduct and fraud. These allegations were introduced solely through the Caveator’s affidavit in Enclosure 22 (which was similar to Enclosure 12), without a citation as directed by the Court.

Notwithstanding the gravity of the allegations, the Court observed that the Caveator:

did not commence a probate action under Order 72 as directed by this Court;

did not file a citation despite the Court’s express directions; and

did not take any step to regularise her challenge through a recognised contentious probate procedure.

During case management and subsequent hearings, this Court gave clear and specific directions to the Caveator to either file a citation or commence a probate action. These directions were intended to provide the Caveator with a proper procedural avenue to ventilate her allegations in a structured and legally recognised manner.

Despite these directions, the Caveator failed to comply and maintained the position that it was for the Applicant, as the propounder of the Will, to initiate the probate action.

The Court finds this stance to be procedurally untenable. In this case, since the Caveator has raised serious allegations challenging the validity of the Will, in particular fraud, it was incumbent upon the Caveator to take positive procedural steps to advance those allegations in accordance with the Rules.

The Court also considered the Applicant’s objections to the uncertainty surrounding the Caveator’s asserted interest. Although the Caveator was herself a beneficiary under the Will, the substance of her complaint appeared to be advanced on S/N NcUnR38dekGrtkwkLr/7g behalf of the deceased’s widow, who was not a beneficiary under the Will.

No Power of Attorney or other legal authority was produced to establish that the Caveator was entitled to act on behalf of the deceased’s widow.

This lack of clarity reinforced the Applicant’s submission that it would be procedurally improper and impractical for the Applicant to commence a probate action without certainty as to the proper parties to be named.

The Court accepted the Applicant’s submission that the impetus for the dispute did not arise from the probate application itself, but from the affirmative allegations raised by the Caveator. The Applicant’s position throughout was that the Will relied upon was duly executed and that probate ought to be granted in the ordinary course.

In this context, the Court was satisfied that, once allegations of suspicious circumstances, undue influence and fraud were raised, it was incumbent upon the Caveator to formulate and prosecute those allegations through a proper probate action, rather than leave them at large in affidavit form within an ex parte application.

The Court further finds that the Caveator was best placed to:

define the basis of the challenge to the Will;

identify the proper parties to be named; and

plead the alleged suspicious circumstances and fraud with particularity.

Requiring the Applicant to initiate a probate action in these circumstances would place him in the position of having to plead allegations against his own case, even though those allegations had not been formally instituted or clearly articulated by the Caveator. This would be procedurally inappropriate.

The Court therefore accepted that, having raised allegations impeaching the Will and asserted a competing interest, it was procedurally appropriate for the Caveator to take the initiative to commence the probate action or, at the very least, to comply with the Court’s direction to file a citation.

The Court emphasised that the Caveator was afforded multiple opportunities to do so. The Court’s directions were clear and unequivocal. The Caveator nevertheless chose not to comply.

In the Court’s view, such a refusal could not be permitted to operate as a mechanism to indefinitely stall the administration of the deceased’s estate. The Rules of Court do not allow a caveat to be used as a procedural device to suspend the grant of probate without the Caveator assuming the corresponding responsibility to advance the dispute formally.

Order 71, rule 38, does not require that every contested probate automatically proceed to a full probate action. The Rule expressly preserves the Court’s power to dispose of a contested matter summarily where the circumstances so warrant.

In the present case, the Court finds that the Caveator was given multiple opportunities to advance her challenge properly, but chose not to do so.

In these circumstances, and upon careful consideration of the cause papers, affidavits and written submissions, the Court was satisfied that it was appropriate to exercise its discretion under Order 71, rule 38, to dispose of the matter summarily.

The Court accepted the Applicant’s submissions that the application was supported by a duly executed Will dated 28 June 2022, executed before a solicitor in Australia, and by affidavit evidence confirming that the deceased was of sound mind at the time of execution. No competing Will was produced before the Court, and the Caveator’s allegation of an earlier Will S/N NcUnR38dekGrtkwkLr/7g remained unsupported by any documentary or affidavit evidence. The Court further noted that the allegations of suspicious circumstances, undue influence and fraud were made in general terms without particulars and were not substantiated by evidence. On the materials before the Court, the Applicant’s affidavit evidence stood unrebutted. In addition, the Caveator, who was herself a beneficiary under the Will, did not establish any legal authority to act on behalf of the deceased’s widow and declined to institute any formal proceedings to challenge the Will despite being directed to do so. In these circumstances, the Court is satisfied that the Applicant’s application was meritorious and ought to be allowed.

For the reasons set out above, this Court makes the following orders:

The Applicant’s application for a Grant of Probate is granted;

The Applicant’s oral application to amend the intitulement of the Originating Summons by deleting the reference to “Order 80” and substituting it with “Order 71” is allowed;

Costs of RM4,500.00 are awarded to the Applicant; and

Borang Kuning is converted to Borang Putih. Dated 8 JANUARY 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Applicant : Sri Nagavarnan (Messrs Rizal Many & Logan) For the Intervener : Theng Kai Chi (Messrs Ling & Theng Book)