Can my Will be challenged? is one of the frequently asked topics at WillsMalaysia.my. The quick answer is yes, but there are very precise factors that determine whether or not a challenge will be successful.
Wills is frequently the subject of news articles; a short online search turned up this or that. These two conflicts have a claim based on the testator’s mental competence in common with one another (person writing the Will). There are just a select few methods that a Will can be successfully contested, with this being possibly the most well-known.
State of mind: The will-maker must be able to comprehend that they are actually drafting and signing their own will. In addition to comprehending the Will’s contents, people should also grasp the worth and nature of their assets, the dynamics of their relationships (including any familial ties they may have), and how these understandings should be reflected in the Will. Additionally, they should be free of any illusions that can affect how their property is divided. One thing to keep in mind with this one is that it can’t just be assumed based on age; a challenger can’t just claim, “He was 89, he didn’t know what he was doing.” There must be some proof that the person’s “testamentary ability” was limited.
Influence: This is distinct from mental ability, as this court case ably demonstrates. It must be proven that the testator did anything that was against his or her real preferences in order to challenge a will on the grounds of undue influence. To establish undue influence, it is not necessary to demonstrate that the testator was mentally incompetent. The major reason a beneficiary cannot be a witness to the signing of a will is that it would amount to coercion. Undue influence is undoubtedly quite prevalent, although it can be difficult to show. Because there are many different types of influence, successful challenges depend on the court’s decision, which is frequently appealable.
Execution method: A will that has not been properly executed is one that has not been signed in the presence of two or three witnesses, but the requirements for this vary by jurisdiction (ignoring for now the special case of holographic Wills which we discussed in a previous post). Naturally, a witness cannot also be a beneficiary, and in the most of countries, this prohibition extends to a beneficiary’s spouse as well as to anybody else who seems to directly profit from the provisions of the Will. To prevent pages from being added and withdrawn, several countries need an initial on each page. Multiple wills being produced, codicils and revisions to existing wills, handwritten notes attached to wills, and verbal commitments are just a few variants on this subject. The most frequent justification for not creating one’s own will is this kind of difficulty, but as we’ve already mentioned, a will made through a site like WillsMalaysia.my is absolutely acceptable if properly signed and witnessed.
Fraud: This can take many different forms, such as the falsification of papers or the use of forged signatures. It can also occur when the testator modifies their Will on the basis of false information provided by a beneficiary.
Dependents are provided for: In the majority of countries, a spouse is entitled to a portion of the inheritance and dependents must be taken care of. But children have the right to contest a will if they believe the distribution of property is unjust.
It is vital to highlight that unless the challenge is founded on one of the conditions mentioned above, a testator who prepares their own will or uses software to generate a will is not a foundation for a challenge. Therefore, the possibility of a Will challenge should not be a deterrent to using a service like WillsMalaysia.my that assists you in creating your own Will.