Sheila A/P Kuppusamy v Suranderan A/L G. Kuppusamy (WA-32NCvC-1719-06/2025)

SURANDERAN A/L G. KUPPUSAMY

SUSILA A/P KUPPUSAMY (NO. K/P: 630720-06-5184) …PENGKAVEAT-PENGKAVEAT GROUNDS OF JUDGMENT Introduction [1] This case illustrates the effectiveness of Order 38 rule 2(2) Rules of Court 2012 in assisting a judge of the High Court to decide whether a 02/06/2026 00:21:22 WA-32NCvC-1719-06/2025 Kand. 45 contested probate matter under Order 71 rule 38 ought to be disposed of summarily (as empowered by rule 38(1)) or to be escalated to a “probate action” under Order 72. Oftentimes, the exercise of the power to dispose of a contested matter summarily is thwarted by wholly unfounded allegations raised by disgruntled children of a testator. For clarity, the Order 71 rule 38 is set out below: “38. (1) Every contested matter shall be referred to a Judge who may dispose of the matter in dispute in a summary manner or direct that the provisions of Order 72 shall apply.

Where a matter is directed to be disposed of summarily the originating summons, if any, shall ordinarily be adjourned into open Court for hearing and the Court may on such adjourned hearing either grant or refuse the prayer in the originating summons or make such other order as may be just.” [2] The said Order 38 rule 2(2) empowers the court to order the cross-examination of a deponent of an affidavit which contents are challenged, without holding a ‘full-blown trial’. It reads: “In any cause or matter begun by originating summons and on any application made by notice of application, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.” [3] Under the repealed Rules of the High Court 1980, applications for grant of probate used to be by way of petitions. The new Rules of Court 2012, such applications are by way of Originating Summons – as in this case where the subject matter is the will of one Mr.Kuppusamy s/o Gurusamy Naidoo dated 28th February 2017. It was drafted by a professional estate planner attached to Rockwills, namely Madam Yap Pow Foong, who attested his signature together with a second witness. The second witness had passed away. [4] The said Madam Yap Pow Foong (“Madam Yap”) had affirmed an affidavit on 18th June 2025 confirming that she had explained the contents of Mr.Kuppusamy’s will to him and that he had signed it in her presence before she signed as a witness. Mr.Kuppusamy passed away on 23rd April 2025. As the caveators are challenging Madam Yap’s affidavit, this Court ordered her to attend court for cross-examination pursuant to Order 38 rule 2(2) Rules of Court 2012. [5] Besides allowing the caveators’ learned counsel to cross-examine Madam Yap at length in open court, the caveators were also granted leave to file further affidavits – so that they had ample opportunity to put forth any evidence which they might possess to convince this Court to direct the provisions of Order 72 Rules of Court 2012 to be applied. [6] From the oral evidence and demeanour of Madam Yap whilst under cross-examination, I find her to be an honest witness. Her oral evidence, weighed together with other undisputed evidence, including an emotional letter handwritten by the late Mr.Kuppusamy to his son (the 1st Caveator), convinced me that the old man had made his second will in year 2017 with full testamentary capacity and that the Caveators’ allegations of “suspicious circumstances” had been fully dispelled. Thus, it was a suitable case for summary disposal under Order 71 rule 38 as there was no need for this Court to “direct that the provisions of Order 72 shall apply”. Since the Caveators could not even adduce an iota of evidence to support their bare allegations, I find that their caveat ought to be set aside and the Applicant’s application for a Grant of Probate should be allowed forthwith without unnecessary delay. [7] The detailed reasons for my decision shall be set out below after the salient facts and the applicable rules and authorities are narrated and duly explained. Salient Facts and Chronology of Events [8] As mentioned above, the late Mr.Kuppusamy s/o Gurusamy Naidoo passed away on 23rd April 2025. He did not instruct a solicitor to draft his last will. Instead, he sought the services of Rockwills, which is an estate planning company in Malaysia providing will writing services, to draft his first will in year 2015 and his second will in 2017 respectively. [9] For the drafting of both his wills in 2015 and 2017 respectively, the late Mr.Kuppusamy was attended to by the same professional estate planner at Rockwills, namely, Madam Yap Pow Foong. [10] This action was filed by Sheila, a daughter of the late Mr.Kuppusamy, who is named in his will dated 28th February 2017 (“the 2017 Will”) as the executrix of his estate. Sheila (“the Applicant”) seeks to prove the will, for a Grant of Probate to be issued to her. However, her brother Suranderan and sister Susila (“the Caveators”) entered a caveat (“the Caveat”) pursuant to Order 71 Rule 37(3) to block her application. [11] The Applicant responded promptly to the Caveat by instructing her solicitors to have a Warning to Caveator (in Form 165 of the Rules of Court 2012) issued by the court pursuant to Order 71 Rule 37(8) on 19th August 2025. In order to maintain their Caveat, the Caveators duly instructed their solicitors to enter appearance for them within the period stated in the said Warning. [12] In their Appearance (in Form 166 of the Rules of Court 2012), the Caveators stated two grounds. The first ground is allegedly that the late Mr.Kuppusamy’s intention is as stated in his will dated 27th November 2015 (“the 2015 Will”), for all beneficiaries in the said will to receive an equal share from the deceased’s estate. For the avoidance of doubt, a screenshot of the Caveators’ first ground is shown below: [13] The Caveators’ second ground is that there are allegedly suspicious circumstances and/or forgery surrounding the 2017 Will due to the fact that the distribution is different from the 2015 Will. A screenshot of the Caveators’ second ground is pasted below: [14] The heart of the dispute is actually the Caveators’ discontent with the fact that the 2017 Will bequeaths to them less than the shares stated in the 2015 Will. Analysis of the Facts and Law [15] In a matter in which a caveat has been entered to block the issuance of grant of probate, Order 71 rule 37(14) states that the matter shall be deemed to be contested upon the entry of appearance by a caveator. The next rule, i.e. Rule 38(1) states that “every contested matter” shall be referred to a Judge of the High Court, i.e. no longer within the jurisdiction of a registrar of the court, and it gives the Judge the power to determine whether the contested matter may be disposed of summarily or to direct that the provisions of Order 72 shall apply. [16] By weighing the grounds of objection raised in the Caveators’ Appearance (in Form 166 of the Rules of Court 2012) and the fact that the Deceased’s signature in both the 2015 Will and the 2017 Will were witnessed by Madam Yap Pow Foong, I acceded to learned counsel’s application to order her to attend court to be cross-examined. This was within the power of this Court pursuant to Order 38 rule 2(2) because Madam Yap had in fact affirmed an affidavit confirming that she attested the Deceased’s signature on the 2017 Will. If there were to be a ‘full-blown trial’ in a probate action under Order 72, she would have been the main witness. [17] At this juncture, it is apt for me to point out that had serious doubts arisen about Madam Yap’s evidence during cross-examination about the instructions that were given to her by the late Mr.Kuppusamy and/or about his signing of the 2017 Will, I would have directed that “the provisions of Order 72 shall apply” – to quote directly from Order 71 rule 38(1). No such doubts arisen. As mentioned above, I find from the oral evidence and demeanour of Madam Yap whilst under cross-examination that she was an honest witness. She made sure that she fully understood the late Mr.Kuppusamy’s instructions, read out his will to him (who could read and write in English himself) before he signed in her presence and that of a second witness who had since passed away. [18] The death of the second witness, one Mr.Ng Kim Huat was duly proven with the production of his Death Certificate issued by the Registrar of Births and Deaths. [19] I bear in mind the fact that the Caveators accepted the fact their late father instructed Madam Yap to draft and attest his signature in the 2015 Will. In other words, the Caveators saw no “suspicious circumstances” about their father going to Rockwills and instructing Madam Yap there to draft his will in year 2015. Thus, they are actually attempting to cast doubt on the veracity of the 2017 Will simply because the late Mr.Kuppusamy had decided to make changes to his last will. [20] With respect, this Court finds that the Caveators have absolutely no evidence beyond an unjustified discontent in their hearts. The fact that the late Kuppusamy had deemed necessary, in his own handwriting, to write an emotional letter to his son (the 1st Caveator) pouring out his anguish and great disappointment with him, says a lot about their severely strained relationship. Screenshots of the salient parts of the said letter are pasted below: [21] Learned counsel for the Applicant submits, albeit from the Bar table, that for Indian families, the attendance of a son for the funeral ritual is very important indeed. I make no finding on this. However, in my humble view, from the excerpts shown above, it is certainly apt to describe the letter as one that was penned by a heartbroken father, whose heart was bleeding from sorrow – to have felt it necessary to put in writing (to be made known to his close ones) that his son (the 1st Caveator) and daughter-in-law were not to attend his funeral or that of his wife, and not to “participate in the ritual required of a son”. In other words, the late Mr.Kuppusamy had even gone so far as to consider disowning the 1st Caveator as his son. [22] The said handwritten letter summed up the late Mr.Kuppusamy’s sentiments, of he and his wife feeling that they had been humiliated by the 1st Caveator and his wife, and his disappointment in having to demand that the 1st Caveator repays a balance loan of RM80,000 to him. Thus, is it surprising that the late Mr.Kuppusamy could have eventually decided to bequeath the 1st Caveator a lesser share of his assets in the 2017 Will? Be that as it may, I note that the late Mr.Kuppusamy did not exclude the 1st Caveator in the 2017 Will. He had merely reduced his bequest to the Caveators who are still his beneficiaries. [23] Learned counsel for both the Applicant and the Caveators had assisted this Court by submitting clear submissions and authorities respectively, which I have read. From the authorities submitted by learned counsel for the Applicant, I think it is necessary for me to mention only s.3 and s.5 of the Wills Act 1959 and the Federal Court’s illuminating judgment in Gan Yook Chin (p) v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1. [24] S.3 of the Wills Act 1959 simply allows every person of sound to dispose of all his properties as he wishes. It reads: “3. Except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will.” [25] In other words, pursuant to s.3 of the Wills Act 1959, a testator is at liberty to give away his properties as he pleases and may revoke his earlier will at any time and to make a new will, provided that he has the testamentary capacity (“of sound mind”) to do so. The judgment of the Federal Court in Gan Yook Chin (p) v Lee Ing Chin @ Lee Teck Seng & Ors (supra) explains this principle most clearly. I am guided by the following exposition on testamentary capacity: “It is trite law that for a will to be valid, a testator must have testamentary capacity. Whether a testator has testamentary capacity depends on the facts of each case. What is meant by testamentary capacity has been laid down by Chief Justice Cockburn more than a century ago in Banks v Goodfellow (1870) LR 5 QB 549. This case was cited copiously by the Court of Appeal in the instant case. For the sake of emphasis it is appropriate to repeat the sentiments expressed by Cockburn CJ who said inter alia: It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made … In deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the particular state of bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of ….”

The Court of Appeal held that the time for determining the mental capacity of the testator who made the will was the time when the will was executed. The court cited various authorities including Billinghurst v Vickers (1810) ER 956; Choo Ah Pat v Chow Yee Wah [1974] 1 MLJ 62; R Mahendran v R Arumuganathan [1999] 2 SLR 579. Theobald on Wills (15th Ed) was also relied[2005] 2 MLJ 1 at 12 on, in particular at p 32 which stated that ‘the testator must have testamentary capacity at the time he executes the will’. Banks v Goodfellow was cited as a footnote. In our view, that is the correct statement of the law.” [26] Applying the above principles, I find that there was absolutely no evidence of the late Mr.Kuppusamy having an unsound mind when he met and instructed Madam Yap in February 2017 to draft his new will. Madam Yap was the same professional estate planner at Rockwills whom he instructed to draft and attest his first will two years earlier in 2015. As mentioned above, I find Madam Yap to be an honest witness, with no interest in the distribution of Mr.Kuppusamy’s assets. [27] The law is equally clear about the burden of proof, in that the applicant who is seeking to prove a will bears the burden of proving testamentary capacity and dispelling suspicious circumstances while he who challenges a will bears the burden of proving undue influence, fraud or forgery and other vitiating elements that he alleges. These principles too were expounded by the Federal Court in Gan Yook Chin (p) v Lee Ing Chin (supra), in the following passage: “19 As regards the burden of proof, the Court of Appeal quite rightly stated the settled law, ie that where the validity of a will was challenged, the burden of proving testamentary capacity and due execution lay on the propounder of the will as well as dispelling any suspicious circumstances surrounding the making of the will; that the onus of establishing any extraneous vitiating element such as undue influence, fraud or forgery lay with those who challenged the will.” [28] In Gan Yook Chin (p) v Lee Ing Chin (supra), the late Mr.Gan died very shortly after making his will in a hospital. On the facts of that case, both the Federal Court and Court of Appeal held that he had the testamentary capacity to make his will and that there were no suspicious circumstances. In the present case, after making his new will in year 2017, Mr.Kuppusamy did not drop dead. He went on to live for 8 years after making his new will, to a ripe old age, just 5 months short of 95 when he died on 23rd April 2025. The following screenshot from his death certificate is self-explanatory: [29] I also find that the execution of the 2017 Will by the late Mr.Kuppusamy and the attestation of his signature to have satisfied the provisions of S.5 of the Wills Acts 1959. [30] With respect, the authorities referred to by learned counsel for the Caveators are distinguishable by the facts of those cases. I find that the legal principles discussed in those authorities are in fact of assistance to the Applicant here. [31] In Re Yeow Chow Beng [1998] 3 CLJ 141, the will in the possession of the caveator was made later than the will that the petitioners (applicants) were seeking to prove. In other words, the caveator was holding the last will of the testator in that case. This fact is diametrically different from the present case where the late Mr.Kuppusamy had, in his 2017 Will revoked all his earlier wills – which include the revocation of his 2015 Will. Here, the 2017 Will which the Applicant is seeking to prove is the last will of her late father. Had the Caveators in our present case been able to produce a will that was made by the late Mr.Kuppusamy at a date later than the 2017 Will, they would have been in a much stronger position to rely on the decision of Augustine Paul JC (as he then was) in Re Yeow Chow Beng (supra) to submit that the provisions of Order 72 ought to be applicable. [32] The facts of Lee Ah Sin v Wasunan Tonrab & Anor [2023] 3 CLJ 23 cited by the Caveators’ learned counsel are also clearly distinguishable from the present case. There, the Court of Appeal held that the learned judicial commissioner had clearly erred in allowing a summary judgment application under Order 14 for a probate action. That case disclosed serious dispute of facts which should have been disposed of pursuant to Order 72 with a full trial in a probate action. Order 14 is not applicable in a probate action in which Order 72 is applicable. [33] From a thorough reading of the judgment of the Court of Appeal in Lee Ah Sin v Wasunan Tonrab (supra), I find guidance in those passages that in contested probate matters, the proceedings are in fact “investigative” or “quasi-inquisitorial”. I find this statement to be true because the testator has departed from this world, leaving the court to make findings based on what he had done and left behind. The Court of Appeal was in fact expounding the judgment of the Indian Supreme Court in H Venkatachala Iyengar v. BN Thimmajamma & Others 1959 AIR 443 that had most lucidly summarised the situation in most probate actions. Those passage from Lee Ah Sin v Wasunan Tonrab (supra) which I found helpful are as follows: “Thus, in contentious probate proceedings in which the alleged last will and testament of a deceased testator is challenged due to lack of testamentary capacity, undue influence, forgery or the presence of suspicious circumstances in regard to the making or execution of the alleged will, the legal proceedings are not entirely adversarial. Rather, it would be quite accurate to describe contested probate proceedings as “investigative” or “quasi-inquisitorial”. This obviously calls for some explanation. [36] No doubt, the rival contestants in the probate proceedings namely the propounder of the impugned will and those who are challenging the validity or authenticity of the will are adversaries. But ultimately the question whether an impugned testamentary disposition is to be upheld or not will depend on whether the “judicial conscience” of the court has been satisfied. [37] The test of satisfying the court’s judicial conscience merely emphasises that, in determining the question as to whether a testamentary instrument produced before the court is the last will of the deceased testator, the court is called upon to decide a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive and not able to testify whether the impugned will truly carries the testator’s signature or thumbprint (as the case may be) and truly reflects the testator’s wishes as to the distribution of the assets of the estate. [38] The principle in this regard was lucidly and comprehensively explained by Justice Gajendragadkar in the decision of the Indian Supreme Court in H Venkatachala Iyengar v. BN Thimmajamma & Others 1959 AIR 443, 1959 SCR Supl (1) 426 (SC) where the learned jurist said: “However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” [34] I find the evidence of Madam Yap who is a professional estate planner with Rockwills to be that of an witness who is disinterested in what the late Mr.Kuppusamy decided to give his family members in his last will. Indeed this is the principle as approved by the Court of Appeal in Lee Ah Sin v Wasunan Tonrab (supra): “Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder.” (emphasis added) [35] Lastly, the judgment of the Supreme Court in Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 1 CLJ (Rep) 331 cited by the Caveator’s learned counsel was on the application under s. 304(1) of the Companies Act 1965 seeking, inter alia, a declaration that a business has been carried on with intent to defraud creditors of the defendants – nothing to do with probate matters. The point made by the Supreme Court there – of there being no opportunity to cross-examine witnesses – had in fact been satisfactorily settled in our present case whereby the most important witness, who drafted the 2017 Will and attested the late Mr.Kuppusamy’s signature, had been cross-examined thoroughly at length as if she was testifying in a full-blown trial. [36] In light of the evidence discussed above, I find that the late Mr.Kuppusamy had full testamentary capacity when he made the 2017 Will on 28th February 2017. [37] The fact that the second witness to the 2017 Will, one Mr.Ng Kim Huat, has died and could therefore not be called upon to affirm an affidavit, makes no difference whatsoever. The law empowers this court to accept the evidence of just one witness who sufficiently proves that the will was executed by the testator. In fact, if no affidavit from attesting witnesses could be obtained, Order 71 rule 9(2) gives this Court the discretionary power to accept evidence on affidavit of any other person (a non-witness) who can testify that the signature on a will is “in the handwriting of the deceased”. In this present case, the affidavit evidence of Madam Yap has been put to a ‘test of fire’ by being grilled under cross-examination in open court. Thus, it is my judgment that the late Mr.Kuppusamy did instruct Madam Yap to draft him a new will in year 2017 and executed it by signing thereon on 28th February 2017. [38] As mentioned above, the Caveators’ learned counsel was given ample time and opportunity to cross-examine the Madam Yap (the professional estate planner cum witness) at length and to file further affidavits. However, there was also no evidence whatsoever adduced by the Caveators of the late Mr.Kuppusamy having being unwell in February 2017, and in fact as highlighted above, he lived for another 8 years till April 2025. [39] There was also no evidence adduced by the Caveators to even suggest any undue influence or fraud or forgery or other points that could possibly vitiate their late father’s 2017 Will – even though they were given ample time and opportunity to cross-examine Madam Yap. [40] Since the Caveators could not adduce any cogent evidence to raise any vitiating elements about the 2017 Will, I am constrained to apply the principle enunciated by the Federal Court in Gan Yook Chin (p) v Lee Ing Chin (supra) and to rule that they have failed to discharge their burden to challenge the veracity of the 2017 Will. There is therefore no basis for this Court to direct that the provisions of Order 72 shall apply. Indeed, this Court should not order a full-blown trial and delay the issuance of Grant of Probate just because two of a deceased person’s children felt that their late father ought to have bequeathed his assets equally. Conclusion [41] As mentioned at the outset, this case illustrates the effectiveness of Order 38 rule 2(2) Rules of Court 2012 in assisting the court to decide whether a “contested matter” under Order 71 rule 38 ought to be disposed of summarily or to be escalated to a “probate action” under Order 72. It allows the main witnesses to be thoroughly cross-examined on their affidavits without holding a full-blown trial. [42] This Court finds that this is a fit and proper case to rely on undisputed evidence and the evidence adduced during the cross-examination of the deponent of the main attestation affidavit, namely Madam Yap Pow Foong, who drafted and attested the late Mr.Kuppusamy signature on 28th February 2017, to rule that the Applicant has successfully proven the 2017 Will. [43] If any finding is required regarding the 1st Caveator’s relationship with his late father, this Court finds the handwritten letter of the late Mr.Kuppusamy (see excerpts shown above) to be self-explanatory. [44] In the circumstances, the Applicant is entitled to be issued with a Grant of Probate without further delay by her two siblings. This Court orders the Caveators’ caveat to be aside and the Applicant’s application for a Grant of Probate of the 2017 Will to be allowed. Since the hearing had required the cross-examination of Madam Yap Pow Foong pursuant to Order 38 rule 2(2) Rules of Court 2012, this Court orders costs of RM25,000 to be paid by the Caveators to the Applicant. Date of Decision: 25th February 2026. ………………………… Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC 9) Counsel for the Applicant: Dato' RK Nathan (Heng Aik Sze with him) SOLICITORS FOR THE APPLICANT: MESSRS ROZLAN KHUEN Advocates & Solicitors 23-2, Block B, The Suites, Jaya 1, Jalan Prof. Diraja Ungku Aziz, 46200 PETALING JAYA, SELANGOR. Counsel for the Caveators: Perumal Sunderan SOLICITORS FOR THE CAVEATORS: MESSRS PERU & CO Advocates & Solicitors 72-1B, Block 72, Pusat Perniagaan Raya Barat, Jalan Raya Barat 41000 KLANG, SELANGOR.

Gan Yook Chin (p) v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2

Re Yeow Chow Beng [1998] 3 CLJ 141.

Lee Ah Sin v Wasunan Tonrab & Anor [2023] 3 CLJ 23.

H Venkatachala Iyengar v. BN Thimmajamma & Others 1959 AIR 443.

Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 1 CLJ (Rep) 331.

Order 38 rule 2(2) Rules of Court 2012.

Order 71 rule 9(2), 37(3), 37(8), 37(14), 38.

Section 3 and 5 of the Wills Act 1959.