Contesting a Will on Grounds of Undue Influence and/or Fraud

20 June 2022

Foo Soon Yien

Sometimes, a deceased person may exclude a loved one from his or her will. If such a person believes that he should be entitled to a share of the deceased’s assets, he may contest the will.

There are several ways to contest a will, of which two are listed below:
(a) On grounds that a beneficiary unduly influenced the deceased to draft the terms of the will in his or her favour;


(b) On grounds that the will was obtained through fraud.
Given the seriousness of such charges, they are admittedly difficult to prove. Nevertheless, there are several factors that the Courts consider when deciding on the above grounds. The rest of this article elaborates on these factors.
Undue influence
In showing that undue influence was exerted on the deceased, the claimant must show that the beneficiary influenced the deceased to the point where the deceased’s free will was overpowered. The Courts are more likely to hold that undue influence is made out if the following factors are established on a balance of probabilities:
(a) The deceased’s lack of physical or mental capacity, which can be supported by medical or other specialist reports (Tan Teck Khong and anor (Committee of the estate of Pang Jong Wan, mentally disordered) v Tan Pian Meng [2002] SGHC 152);
(b) The deceased’s inter-personal relationships and his or her reliance on others. For example, in VFD and another v VFF and others [2020] SGFC 10, the Court found that the deceased was not unduly influenced as she had not been isolated from her friends and family, and had often moved around independently.
Fraud
A claimant may argue that the beneficiaries of the will committed fraud by:
(a) Forging the signature(s) of the deceased and/or the witnesses named in the will;


(b) Carrying out fraudulent calumny, which means that the beneficiaries poisoned the deceased’s mind against the individual by casting dishonest aspersions on his character.
Forgery
The most crucial, and often, deciding factor that guides the Court’s decision is evidence from the witnesses named in the will. The importance of credible attesting witnesses is thus not to be disregarded. In R Mahendran, the witness’s evidence remained consistent although he was “severely cross-examined”. This led the Court to hold that the will was not obtained through fraud.
Other factors that the Courts will consider are discrepancies in handwriting and impressions of writing. These factors are usually ascertained by handwriting experts and/or using forensic equipment.
Elements of fraudulent calumny
The case of Kunicki v Hayward [2016] EWHC 3199 (Ch) provides that the claimant must prove the following elements to succeed on this ground:
(a) A false representation to the testator about the character of the existent or potential beneficiary;


(b) The false representation must have been made for the purpose of inducing the testator to alter his will;


(c) The false representation must have been made knowing that it is untrue, or recklessness as to its truth; and


(d) That the will is made only because of the fraudulent calumny.
In conclusion, challenging a will can be a tedious and sensitive matter. It is thus prudent to be well informed of the relevant grounds of invalidity and your chances of successfully contesting a will.

​Foo Soon Yien
Senior Director, Founder, BR Law Corporation
[email protected]