Law of Estate
Can a Will be challenged in Court?
Can a Will be challenged?
Contesting a will is a relatively common occurrence, arising when individuals express dissatisfaction or discontent with the final testament. Numerous factors can contribute to such challenges.
Nevertheless, challenging a will is not an easy task. Most wills typically undergo probate smoothly, devoid of significant obstacles or disputes. Generally, wills are regarded as the deceased’s final expression of their wishes, with the courts typically adhering strictly to their contents, as the deceased can no longer voice their intentions.
In the event that a will is successfully contested, it may be either partially or entirely invalidated. There are instances when a previously revoked will may be reinstated, so it is important to be prepared for such a possibility. If the will is declared invalid, the distribution of assets and funds will follow the applicable intestacy laws or distribution act of the jurisdiction. Typically, familial relationships serve as a guide in such cases. Consequently, if you happen to be a close friend or a mistress who has been promised assets and money by the deceased, it is highly likely that you will not receive any of those provisions.
Surviving Family Members
Who Is Entitled?
Spouse and issue
Parents and issue
Spouse, Issue and Parent(s)
Spouse and parents
Are You Able to Block Grant of Probates?
Can a Grant of Probate be Blocked?
It is indeed possible to block a grant of probate if you have reservations about the validity of a will. You can achieve this by entering a caveat against the deceased’s estate, effectively preventing the issuance of the grant of probate until the caveat is resolved. The caveat remains in effect for a period of 6 months, allowing sufficient time for interested parties to inquire and potentially make a claim. If needed, the caveat can be renewed multiple times, each time for a 6-month period.
However, it’s important to note that the executors or beneficiaries named in the will have the ability to enter a warning against the caveat at any point. This requires the submitter of the caveat to appear in court and provide reasons for contesting the will within 14 days of the warning being issued. Although this timeframe may be relatively short for conducting thorough investigations, the administration of the estate cannot proceed until the dispute has been resolved.
Can The Will Be Overturned After Probate?
It is possible to contest a will even after probate, but it is advisable to take prompt action. Once the grant of probate has been issued, it becomes necessary to initiate a legal claim for its revocation.
If there is a delay in bringing your claims to the court, there is a likelihood that the executors have already distributed the assets and funds to the beneficiaries mentioned in the will. In such cases, the chances of recovering assets from the beneficiaries are minimal. Additionally, there is a risk that the beneficiaries may have already spent the funds or disposed of the assets.
Challenging a will after probate has been granted can be a complex process. It is strongly recommended to seek legal advice and support if you have substantial grounds for contesting the will.
When Can You Challenge A Will?
Here are several scenarios and reasons that may warrant challenging a will:
Testamentary Capacity: The legal age to challenge a will in Malaysia is 18 years. If you are not yet 18 years old, you cannot contest the will until you reach the legal age. In certain rare cases and jurisdictions, minors who have served in the military or are married may be granted the right to create a will. Additionally, being 18 years old alone does not automatically qualify you to challenge a will. Often, it requires being of sound mind, free from the influence of substances or alcohol.
Fraudulent Will: If you can provide evidence that a will was created through fraud, forgery, or undue influence, you have grounds to challenge it. This commonly occurs when a vulnerable individual is manipulated, leading to significant assets and properties being bestowed upon the manipulator.
Possessing a More Recent Valid Will: If you possess a valid last will that supersedes the existing will being followed by the courts, you can utilize it to contest the current will. It is crucial to fulfill the requirements for the destruction of older wills (which is highly recommended).
It’s important to note that these scenarios are not exhaustive, and seeking legal advice is highly recommended to navigate the complexities involved in challenging a will effectively.
In summary, challenging an existing will is possible if you can provide substantial evidence to support your case. It is important to pursue the legal route by initiating the challenge through a court. If you require additional guidance or support, please feel free to reach out to us for further assistance.
Written By Lawyer Khoo