Contesting a Will: Probate and Estate Distribution

Three siblings approached our firm after discovering that their late father's entire estate had been left to a single beneficiary, a distant relative who had become their father's caregiver in the final two years of his life. The will, executed just eight months before their father's death, replaced an earlier will that had divided the estate equally among the three children. The estate included a house in Johor Bahru, two commercial shop lots, and various bank deposits, with a combined value of approximately RM2.3 million.

Grounds for Contesting the Will

The siblings suspected that their father had been unduly influenced by the caregiver, who had isolated him from his children during his final illness. They also questioned whether their father had the mental capacity to understand the contents of the new will at the time it was executed, as he had been diagnosed with early-stage dementia.

In Malaysian law, there are several grounds on which a will can be challenged. Lack of testamentary capacity means the testator did not understand what they were doing. Undue influence means someone exerted pressure that overcame the testator's free will. Fraud or forgery involves the will being fabricated or procured by deception. Improper execution means the will was not signed and witnessed in accordance with the Wills Act 1959.

Testamentary Capacity

The legal test for testamentary capacity in Malaysia follows the principles established in Banks v Goodfellow, which requires the testator to understand the nature of making a will, the extent of their property, and the claims of those who might expect to benefit. The testator must also be free from any disorder of the mind that might influence their decisions.

We obtained the father's medical records from his treating physician at a hospital in JB. The records showed that at the time the new will was executed, the father had been prescribed medication for cognitive decline and that his doctor had noted periods of confusion during consultations. We also obtained evidence from a geriatric psychiatrist who reviewed the medical records and provided an opinion that the father's capacity was likely impaired at the relevant time.

Undue Influence

Proving undue influence is difficult, as the person exerting the influence is often the only witness to the testator's state of mind. We gathered evidence showing that the caregiver had controlled access to the father, turning away visitors and screening phone calls. Bank records showed that the caregiver had been added as a signatory to the father's accounts shortly before the new will was made. Neighbours reported that the father had expressed confusion about his finances in the weeks leading up to his death.

Probate Proceedings

The caregiver had applied for probate of the new will in the Johor Bahru High Court. We filed a caveat to prevent probate from being granted without notice to our clients. We then filed an appearance and served a warning on the caregiver's solicitors, indicating our intention to contest the will.

The matter was listed for a probate hearing. Under the Probate and Administration Act 1959, when a will is contested, the court will hear evidence from both sides before deciding whether to admit the will to probate. The burden of proving the will's validity initially lies with the party propounding it, though the burden may shift once evidence of suspicious circumstances is raised.

The Outcome

Faced with the medical evidence, the bank records, and witness statements from neighbours, the caregiver's legal team agreed to enter settlement negotiations before the hearing date. After several rounds of negotiation, the parties agreed that the earlier will would be admitted to probate. The estate would be divided equally among the three siblings as originally intended. The caregiver received a modest legacy in recognition of the care provided, which was acceptable to the siblings.

The settlement was recorded as a consent order in the Johor Bahru High Court. The earlier will was admitted to probate, and the siblings were appointed as joint executors. The estate was subsequently distributed in accordance with the original terms, with the agreed legacy paid to the caregiver.

Key Takeaways

Contesting a will is emotionally and legally complex, but it can be the right course of action when there are genuine concerns about capacity or undue influence. Early medical evidence is crucial. If a family member shows signs of cognitive decline, obtaining medical assessments and keeping records can make a significant difference if a will is later challenged. Acting quickly is essential, as probate can be granted swiftly if no caveat is filed.

If you have concerns about the validity of a will or need help with probate proceedings, contact our trusts and estates team for a confidential discussion.