Challenging the Validity of a Will: Legal Grounds and Evidence
A will that appears sudden, harsh or suspicious can deepen an already painful family dispute. An allegation alone does not invalidate a will, but a genuine concern should not be ignored. The court asks whether the legal requirements for a valid will were satisfied and whether the evidence supports the particular challenge.
What can make a will invalid?
A will may be challenged because it was not properly executed. For a will governed by the Wills Act 1838, it must be in writing and signed by the testator, or by another person in the testator’s presence and at the testator’s direction. The signature must be made or acknowledged in the presence of at least two witnesses present at the same time, and the witnesses must sign in the testator’s presence (s 6 Wills Act 1838; AEL and others v Cheo Yeoh & Associates LLC and another [2014] SGHC 129, where a will attested by only one witness was held invalid).
The deceased must also have had testamentary capacity at the time the will was made (Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 at [37], applying Banks v Goodfellow (1870) LR 5 QB 549). Broadly, the deceased must have:
• Understood the nature and effect of making a will;
• had a general understanding of the property being disposed of;
• appreciated those who might reasonably expect consideration;
• and was not affected by a disorder of the mind that distorted the decision.
Old age, illness or dementia does not automatically establish incapacity.
The deceased must know and approve the contents of the will (Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 at [46]–[47], where a rebuttable presumption of knowledge and approval arises once testamentary capacity is shown). Where the preparation or execution appears suspicious, the person relying on the will may need clear affirmative evidence that the deceased understood and approved what was signed (Lian Kok Hong v Lian Bee Leng and another [2016] 3 SLR 405 at [58]–[59] and [65]).
Undue influence, fraud and forgery
Probate undue influence requires coercion that overbore the deceased’s free will (Wingrove v Wingrove (1885) 11 PD 81; Rajaratnam Kumar (alias Rajaratnam Vairamuthu) v Estate of Rajaratnam Saravana Muthu (deceased) and another and another suit [2010] SGHC 164, requiring domination to the point that the testator’s independence of decision was undermined). Persuasion, appeals to affection, family pressure or persistent requests are not enough by themselves. Dependency, isolation and vulnerability may be relevant, but the person alleging undue influence must prove it.
Fraud may involve deliberately deceiving the deceased about the document or its contents. Forgery alleges that a signature or the document itself is not genuine. Both are serious allegations requiring proper evidence.
What is considered?
• The original will
• Earlier wills
• Who gave instructions to the will
• Whether the deceased met the lawyer alone
• Whether the will was explained in a language the deceased understood
• Who attended the signing and how the deceased appeared.
Medical records may be important where the deceased was ill, heavily medicated or cognitively impaired. If forgery is alleged, handwriting evidence, the chain of custody and the availability of the original document may matter. An inconclusive expert report will not necessarily prove forgery.
What should a concerned family member do?
Preserve the will, earlier wills, medical records, messages and a clear timeline. Identify the drafting lawyer, witnesses, caregivers and doctors who saw the deceased near the signing date.
Check whether a grant has already been issued and whether a probate caveat is appropriate. A caveat may prevent a grant from being issued without notice to the caveator, but it should not be filed without a proper basis. A contested probate action is commenced by originating claim under the current probate rules.
Key takeaway
A will challenge is not decided by whether the outcome feels fair. The issue is whether the document is legally valid and genuinely reflects the deceased’s intentions. Evidence, rather than suspicion alone, is decisive.