WillSeptember 29, 2023by Finex & CoOn what grounds can a Will be challenged?

The creation of a Will is a crucial element of estate planning, allowing individuals to specify how their assets should be distributed after their passing. However, the legal validity of a Will can be subject to scrutiny and challenge under specific circumstances. Understanding the grounds on which a Will can be contested is essential for individuals seeking to ensure the proper execution of their testamentary wishes. In this article, we explore the common grounds on which a will can be challenged, shedding light on the complexities of testamentary disputes.


Lack of Testamentary Capacity

One of the most prevalent grounds for challenging a Will is the assertion that the testator (the individual making the will) lacked the mental capacity to understand the nature of their actions during the creation of the Will. To have testamentary capacity, the testator must comprehend the extent of their assets, the implications of their decisions, and the beneficiaries who stand to inherit. Challenges on the basis of lack of capacity often arise when the testator was suffering from mental illness, dementia, or other cognitive impairments at the time of will creation.


Undue Influence

Undue influence occurs when someone exerts pressure, manipulation, or coercion on the testator, thereby influencing their decisions about the will’s content. This can lead to beneficiaries receiving assets or benefits they would not have received if the testator’s decisions had been independent. To challenge a Will on the grounds of undue influence, one must demonstrate that an individual with a position of power or authority over the testator used this influence to manipulate the distribution of assets.


Fraud or Forgery

A Will can also be challenged if it is believed that it was forged or created under fraudulent circumstances. Fraudulent activities might involve falsifying signatures, misrepresenting the testator’s intentions, or even creating a completely fabricated will. In such cases, proving the fraudulent nature of the will requires a thorough investigation and evidence that demonstrates the deception.


Improper Execution

Wills must be executed in compliance with legal formalities to be considered valid. In Malaysia, the mode of execution is governed by Wills Act 1959 which states the following:

  • Be at least 18 years of age at the time of writing.
  • Be of sound mind.
  • Have the Will in writing, signed and dated.
  • Have at least two witnesses, who will sign on the Will as well.
  • All parties must be present during the signing.
Lack of Knowledge and Approval

Challenges can arise if there are concerns that the testator did not have a clear understanding of the Will’s contents or was not fully aware of the assets being included. If the testator was misled or did not approve of the Will’s provisions, beneficiaries can contest the will on the basis of lack of knowledge and approval.


Revocation or Amendment

If a more recent Will is discovered, it may challenge the validity of a previous Will. A newer Will can explicitly revoke or supersede an older one. Contestants might also question whether the testator intended to revoke or amend their Will due to changes in circumstances.


Challenging a will is a complex legal process that requires careful consideration of the grounds and solid evidence. The grounds mentioned above represent the most common reasons for challenging a will, but the legal landscape is intricate and subject to interpretation. For those drafting a will, seeking professional legal advice and ensuring that the document adheres to the relevant legal requirements can help minimize the likelihood of challenges. Conversely, those facing potential challenges to a will should consult legal experts experienced in estate litigation to navigate the complexities and protect the integrity of the testator’s intentions.


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