Having to take care of legal matters when loved ones are mourning is tough. Usually, an executor of will would aid in fulfilling the wishes of the deceased as written on their will. At times like these, conflicts will arise if the beneficiary or a family member feels that the terms of the will are unfair.
Legal procedures may get complicated at times, but the question is can you contest a will in Malaysia? It is common to encounter conflicts because of will.
As a matter of fact, there was a recent case that went viral in South Korea. When a South Korean singer and actress passed away suddenly, her inheritance went to her parents. However, her brother felt that her mother did not deserve to be a beneficiary as her mother walked out of their lives over 20 years ago.
The news received a lot of attention from the media and the public also felt that it was unfair that her mother was a beneficiary. Hence, her brother sued their mother for receiving the inheritance. Although the media did not say whether or not it was written in her will to allocate her assets to her parents. The information was disclosed although her case gained a lot of attention.
This case is a perfect example of how the allocation of assets could cause a big issue and even a legal dispute. So without further ado, let’s take a closer look at what you should do when contesting a will in Malaysia:
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Appointing An Appropriate Attorney
Before thinking of contesting a will, there have to be legal reasons to contest a will. One is not able to contest a will without any valid reasons. Therefore an attorney will usually be hired to guide you through the lengthy process of contesting a will.
There are a few reasons why people might want to contest a will, for example, when there are suspicions that a will is not valid or if the testator does not have the testamentary capacity to sign a legal document. There are rare cases where a testator may be influenced or might even be tricked into signing the document.
Given that contesting a will would be a lengthy legal process, it is recommended to hire experienced lawyers to successfully challenge a will. After you have hired your appointed lawyer, you are ready to start the legal steps to challenge a will.
Here are the crucial steps you will need to go through when contesting a will:
1. Check If The Will Is Legally Valid
When there are suspicions that a will is not valid, a third party or beneficiary could challenge a will. Checking if the will is a legally valid will is the most crucial step when contesting a will. In Malaysia, the testator of the will has to be at least 18 years old. A will also have to be signed in accordance with the law.
When signing a will, there have to be at least two witnesses present. The witnesses present has to be a third party who is not the testator’s spouse or beneficiary. Any failure to sign the will under these circumstances would mean that the will is invalid and therefore the executor of will cannot proceed with the allocation of assets.
2. Proving The Testamentary Capabilities
After confirming that the will is a valid will, the appointed lawyer would go on to check the testamentary capabilities of the testator at the time of signing. Checking if the testator has the testamentary capabilities to sign a legal document means that the testator has to be of sound mind, with no medical history that might hinder the testator from fully understanding the terms and conditions of the will.
A testator has to be able to comprehend the terms of the will as well as remember what assets they possess. A will could be contested if the testator was suffering from medical issues such as Dementia, Alzheimer’s, or any other disease that affects the mind. The testator’s medical history will be looked upon as proof of whether or not the testator has the testamentary capabilities at the time of signing.
3. Determine The Challenger’s Standing
There are a few criteria to be eligible to contest a will. Not anyone can contest a will. Before you go on contesting a will, you have to determine if you have the legal standing to contest a will. The person contesting a will has to be a beneficiary or an intestate heir of the testator. They are usually the spouse or children of the testator.
4. Ensure That There Is No Foul Play Involved
A will can be contested if there are suspicions of fraud or if the testator is suspected to have been influenced to sign the will. As people age, our physical and mental capabilities will deteriorate. In this case, the testator may be influenced to sign the will without fully understanding what the will represents.
In rare circumstances, a testator may also be tricked into signing a will. There might be instances where the will has been forged. The testator might have been told to sign another document without knowing that the document that they have signed is a will. If this happens, the will is considered fraud.
5. Filing And Settlement
Contesting a will in Malaysia is not an easy process. These issues found in a will is usually found after the testator has passed away. It is not easy to find proof when the testator is no longer able to have their say as proof. If it is a fraud, the witnesses might have even be bribed into complying. It will be a very difficult process, which is why it is essential to be detailed when filing a legal issue.
The timing of contesting a will is also crucial. Filing a will contest has to be immediate as there is only a limited amount of time provided to file a contest of will. Contesting a will is a very lengthy process that might take up to years before coming with a result or solution. After the lengthy process, you might not even be able to achieve the results that you initially wanted.
The beneficiaries might offer a settlement amongst themselves so that they would be able to proceed with the allocation of assets and complete any pending process.
As to avoid all these issues that might come in the future, one has to write a will that is legally valid. It is possible to draft a will by oneself, but with the help of a good lawyer, you would be able to avoid future disputes regarding your will.
A lawyer would be able to advise you on the terms and conditions that you could put in your will. If you’d like, you may even put a no-contest clause in your will, but of course, it comes with risks. With a lawyer’s help, you will be able to write a valid will and avoid future disputes.