There are a fair amount of cases of families challenging your will when you are no longer around. However, are you able to prevent them from challenging your will? Emotions can be volatile after the death of a family member. It isn’t just the loss of a loved one that has made them emotionally charged. If they find out they received not as much as their relatives do, they will see the need to challenge the will left behind.
Challenging a will can drag out for years. It can prevent heirs and other beneficiaries from receiving what is “rightfully theirs”. To be fair, it is impossible to prevent anyone from fighting over and challenging your will. There are steps you can take to minimize infighting.
Bear in mind that your relatives can challenge your will if:
- They think you did not have the best mental capacity to execute the will
- Someone has exerted their influence over you
- Someone must have committed fraud over your will
- The will is not executed properly
How are wills contested?
In the broader sense, yes – wills can be challenged. People challenge wills all the time and it is common news in any and all countries in the world, including Malaysia. People challenge wills because they think the asset distribution is unfair. Wills can only be contested under certain circumstances. There must be solid evidence that something is wrong with the will. Here are some situations where a will may be contested.
1. Mental incapacity
People can contest a will if they believe their loved ones did not have the mental capacity to write even a simple and basic will. The best way to prove this is to have a statement from a doctor who examines the will writer around the time the will writer is writing the document. You may also use medical records and other witnesses who were around the same will writer at the very same period of time too.
2. Influence from other people
If you believe that someone has exerted their undue influence over the will writer and induced them to change the distribution in their will, you may contest the will under such category. Usually, the person contesting the will is needed to prove the person has exerted undue influence.
If that person has a fiduciary relationship with the will writer, then that person of interest may need to prove there is nothing between them. That means the person of interest has to show that there is nothing exclusive or special between them and the will writer. People who have a fiduciary relationship with the will writer may include a child, a spouse, or someone with a power of attorney.
You may contest the will under fraud when you believe that the will writer has been coerced into writing and signing a will “without their consent”. The will writer may have signed a will without knowing the document is a will. It can happen if someone gave the will writer misinformation that has caused them to change the distribution in the will.
4. Wills that are not executed properly
A will can be invalid if it was not executed properly. There are clauses dictating what makes a will valid. The signing of a will must be witnessed by independent witnesses. If the document is not witnessed properly, it may be invalid.
Who can contest a will?
Only certain people can contest wills. Those people include your spouse, your children, or people who are included in your wills (eg: beneficiaries and codicil, and codicils of previous wills). In order to contest a will, you must first file a contest during the probate process.
You must need to have a valid legal question about the will for a contest to be considered. People cannot simply challenge a will because they disagree with it or were left out of it. They also cannot challenge the will just because they let their emotions do the talking.
How do you prevent your family members from challenging your will?
Having your loved ones challenge your will can be very upsetting. To prevent it from happening, or lessen the chance of it happening, you may consider the following ways.
a. Include a no-contest clause
You may not wish to make things harder for your family when you are gone. However, some decisions may be potentially controversial. You may choose to give part of your assets to charity or to your mistress, something which your family members may not agree to.
Your family members may see it as unfair, but you can include a no-contest clause to discourage anyone from going against your wishes. Including this clause may mean that if anyone challenges your will, they may not receive anything from your estate.
b. Consider a revocable living trust
An end-game plan can help ensure your family knows where to find your important documents and understand your preferences for your body and assets. If you are really stressed out about the prospect of your family members contesting your wishes, then you may look into having a revocable living trust.
It allows you to put all your assets into a revocable trust when you are still alive. As soon as you are no longer around, they are handed over to trust beneficiaries according to your trust’s terms. Since they don’t go through the probate process like wills, they are very hardly contested.
c. Avoid surprises
A lot of people keep the details of their wills secret until they die. If some of your wishes take people by surprise, there may be a risk of your will’s contents being contested. To reduce that risk, you may consider informing your family of your intentions and why you have made such clauses in your will. Do all these when you are still alive, of course.
Your family members can challenge your will even when you are still alive. You may have to work around it and try to appease them. If you cannot, then there are ways to breakeven things.
If you ever need help with writing and preparing a will, feel free to get in touch with us. We will be more than happy to assist you with writing your will.