Chloe Lim & Co

Can A Will be Challenged?

When the older generation leaves a Will when they pass away, the wealth of the deceased often causes rift and quarrels between family members. Challenging the validity of a Will can be time-consuming and difficult. It is hard to cancel off a Will just because a beneficiary is left out or not given a fair share. 

A Will is not valid and can be challenged if:

Lack of Testamentary Capacity

Testamentary capacity means a person must be conscious, sane and mentally healthy when he/she signs the Will. In Malaysia, very slight testamentary capacity is required to make a Will (Tho Yow Pew v Chua Kooi Hean [2002] 4 MLJ 97). A person can be ill, bedridden or having dementia yet still considered to have a testamentary capacity to sign a Will if he/she has a sound mind, conscious and mentally healthy.

A Will can be challenged if the next of kin can prove that the deceased was unconscious, insane or suffering from mentally disorder, did not understand the nature, contents and effect of the Will, and could not recall his/her assets at the time the Will was signed. 

Failure to Comply with Section 5 of Wills Act 1959

A Will is not valid if it does not fulfill the requirements under Section 5 of Wills Act 1959.

A valid Will has 5 elements:

  • The person making the Will (Testator) must be minimum age of 18 years old;
  • A Will must be in writing and signed by the Testator;
  • Two witnesses must be present at the time of signing of the Will;
  • The Testator must be of sound mind; and
  • The witnesses to the Will cannot be the spouses of the beneficiary of the Will.

Suspicious Circumstances 

The testator was influenced by external factors such as undue influence, fraud or forgery at the time of making of a Will. 

A. Undue Influence 

The testator is coerced or pressured into doing something that he does not desire to do at the time of making a Will (Wingrove v Wingrove [1885] 11 PD 81). Persuasion and advice do not amount to undue influence as long as the Testator is not restricted from accepting or rejecting them (Parfitt v Lawless [1872] LR 2 P&D 462).

B. Fraud

The Testator was cheated or defrauded when he signs the Will. An example of fraud is that someone hands over a document to the Testator, orally assures him/her that it is a contract and it is fine to sign the document when in fact the document is actually a Will.

C. Forgery

A Will is not valid in the event the signature of the Testator is forged or a fake one. 

The person who seeks to revoke the grant of probate or the grant of letters of administration shall prove undue influence, fraud or forgery on a balance of probability (Ong Eng Hock & Anor v Ong Cheng Guan & Anor [2018] 5 MLJ 701).

The Court will assess the facts and surrounding circumstances of each case in deciding whether or not a Will ought to be declared as invalid and with no effect.

What happens if a Will is declared to be Invalid?

If the Court finds that a Will is not valid, the deceased’s estate shall be distributed according to Section 6 of Distribution Act 1958.  

The contents of this article do not constitute legal or other professional advice or an opinion of any kind. It is provided for general information purposes only. Please contact us for further enquiry.

By Chloe Lim & Carmen Leong