20 June 2022
Foo Soon Yien
The contents of a will may arouse suspicion and beg a second look. In such cases, one can choose to contest the will. There are several grounds on which an individual can dispute the validity of a will. This article will elaborate on two such grounds: lack of testamentary capacity (i.e. the deceased did not have the mental capacity to make a will) and lack of knowledge or approval of the will’s contents.
Lack of testamentary capacity
In Chee Mu Lin Muriel v Chee Ka Lin Caroline  SGCA 27 (“Muriel Chee”), the Court of Appeal held that testamentary capacity is generally presumed where the following conditions are met:
(a) The terms of the will are rational;
(b) The deceased executed the will in ordinary circumstances; and
(c) The deceased was not suffering from any kind of mental disability.
Therefore, in contesting the will, the claimant needs to rebut this presumption by showing contrary evidence.
For example, the claimant may show that the deceased suffered from an illness prior to the making of the will, which caused his testamentary capacity. The cases have shown that the illness must be serious enough to cause testamentary incapacity:
(a) In ULV v ULW  SGHCF 2, the Court found that mere bodily ill-health and imperfect memory were insufficient to find lack of testamentary capacity;
(b) In Banks v Goodfellow (1870) LR 5 QB 549, the English Court of Appeal held that the deceased had testamentary capacity even though he suffered from delusions. This was because he had made his will during a period of lucidity.
Where the presumption of testamentary capacity does not arise and/or is rebutted by the claimant
In such an event, the propounder of the will needs to prove the requisite elements of testamentary capacity. These elements were succinctly set out by the High Court in George Abraham:
(a) The deceased understood the nature of the act and what its consequences were;
(b) The deceased knew the extent of his property of which he was disposing;
(c) The deceased knew who his beneficiaries were and could appreciate their claims to his property; and
(d) The deceased was free from an abnormal state of mind that might distort feelings or judgments relevant to the will.
In determining the above factors, the Court will consider the totality of the evidence as a whole, including the factual component (such as evidence of friends and family) and the medical component. It will generally accord weight to both types of evidence so long as the factual and medical witnesses had the opportunity to observe the deceased at the time he or she made the will (Muriel Chee at ).
Lack of knowledge and/or approval of will’s contents
The applicable principles have been aptly summarised by the Court of Appeal in Muriel Chee at  to :
(a) Where testamentary capacity has been established and there is proof that the will was properly executed, a presumption arises that the testator had knowledge and/or approved of the contents of the will;
(b) This presumption would not arise where there are circumstances that arouse the suspicion of whether the testator knew and approved of the will and its contents;
(c) In such circumstances, the propounder of the will must provide evidence of the testator’s knowledge and approval.
The following scenarios are examples of circumstances which arouse suspicion:
(a) Where an individual who was expected to receive a substantial benefit from a will, receives less or is excluded from the will. In Muriel Chee, the Defendant was the testatrix’s favourite child to whom she had always intended to bequeath her residuary estate. However, the Defendant was excluded from the will in question. Accordingly, the Court of Appeal found that the testatrix had no knowledge and did not approve of the contents of the will.
(b) Where a beneficiary prepared a will or procured its execution by suggesting the terms to the testator (Ng Bee Keong at ); or
(c) Where a beneficiary instructed a solicitor to draft the will which was then executed by the testator alone (Ng Bee Keong at ).
In conclusion, contesting a will can be a trying time for all parties involved. Being aware of the factors that the Courts look at in deciding on the validity of a will can help to ease this process.
Foo Soon Yien
Senior Director, Founder, BR Law Corporation
Post date. Edit this to change the date post was posted. Does not show up on published site. 22/6/2022
The materials in these articles have been prepared for general informational purposes only and are not legal advice or a substitute for legal counsel. If you require legal advice for your particular circumstances, please consult a suitably qualified legal counsel. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not rely or act upon this information without seeking professional counsel. Whilst we endeavour to ensure that the information in these articles is correct, no warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission. The authors of the articles are or were employees of BR Law Corporation at the time of publication, but may no longer be, now or in the future, in the employ of the firm.
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