Reasons When You Will Challenge a Will
Challenging a will is not an uncommon practice. People do it when they are not happy or satisfied with the final will. There can be a myriad of reasons.
However, just because people challenge a will is not impossible, it is often a difficult matter. Most wills will pass the probate without much issues or challenges. Oftentimes, wills are seen as the voice of the deceased. As the person is no longer able to speak up (obviously when they’ve died), the court will often stick to the wills’ every last word strictly.
When a will is challenged and is successful, the will can be voided entirely or partially. There will be times when the previous will can be reinstated so do not be surprised at it. If the will is voided, then the asset and money distribution will follow the Malaysian intestacy law or distribution act. And usually it will be guided by familial relationships. With that being said, if you are a close friend or mistress who is promised money and assets by the deceased, it’s quite likely you will never get any of that.
| Distribution Act (1968): How Your Assets and Monies are Distributed in Malaysia | ||
| Surviving Family Members | Who Is Entitled? | Entitlement Rate |
| Spouse only | Spouse | 100% |
| Issue only | Issue | 100% |
| Parent(s) only | Parent(s) | 100% |
| Spouse and issue | Spouse
Issue |
1/3
2/3 |
| Parents and issue | Issue
Spouse |
2/3
1/3 |
| Spouse, Issue and Parent(s) | Spouse
Issue Parents |
¼
½ 1/4 |
| Spouse and parents | Spouse
Parents |
½
1/2 |
However, if the deceased did not leave behind a will, then the immediate family and relatives will usually get the assets and monies in equal shares. But in some cases, your entire estate will go to the government.
Are You Able to Block Grant of Probates?
Anyone can challenge a grant of probate, but are you able to block it? The short answer: yes.
If you doubt the validity of a will, you can enter a caveat against the deceased’s estate. It will then prevent the grant of probate from being issued until the caveat is removed. The caveat is effective for 6 months. It is to allow time for people to enquire before the final decisions are made to bring back a claim. You can renew the caveat multiple times with periods of 6 months at a time.
Take note that the executors or beneficiaries can enter a warning to the caveat at any time. It needs the caveat submitter to state in a court appearance the warning about why they are contesting the will. It has to be done in 14 days of the warning issued. Though a short time frame does not offer enough time to carry out the necessary investigations, the administrator of the estate cannot continue until the dispute has been reached.
Can The Will Be Overturned After Probate?
Yes, you can overturn a will after probate. But it is best to take action as soon as possible. As soon as the grant of probate has been issued, it will be necessary to bring a claim for it to be revoked.
If by any chance that you delay in bringing your claims to the court, it’s quite likely the executors have distributed the assets and monies to the deceased’s beneficiaries. There is a very small chance you are able to recover the assets from the beneficiaries. However, there is also a risk where the beneficiaries may have spent the monies or sold the assets.
Contesting and challenging a will after the grant of probate has been obtained tends to be complicated. You will be recommended to seek legal advice and support – if you think there is a very solid reason for you to challenge a will.
When Can You Challenge A Will?
Here are a few scenarios and reasons when you can challenge a will.
- Testamentary capacity: this is about at what age can you challenge a will. You will need to follow the legal age of Malaysia, which is 18 years of age. If you are not officially 18 years of age yet, then you wouldn’t be able to challenge the will until you have reached legal age. In some rare cases and jurisdictions, minors who have served in the military or are married are given the right to make a will. Even if you are past 18 years of age, it does not mean you can or are able-bodied in challenging a will. Many times it requires you to be 18 years of age, be of sound mind, and not be under the influence of any substances and alcohol.
- Fraudulent will: you can challenge a will if you can show evidence that it is made by fraud, forgery, or undue influence. Typically this happens when the deceased has been manipulated as a vulnerable person, and left a whole lot of money and properties to the manipulator.
- Having a latest valid will: if you have a last will that is valid, you can use that to challenge the existing will that is being followed by the courts. There are requirements to destroy older wills (and best that you do).
Conclusion
In conclusion, you can and are able to challenge an existing will as long as you have sufficient evidence to back you up. When challenging a will, make sure that you do it legally via a court. If you need any further advice, do contact us for further assistance.
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