Introduction
Making a valid and enforceable will is one of the most overlooked legal protections in Malaysia. Many people either postpone it, write one without proper legal advice, or assume their handwritten intentions will be enough. But this opens the door to painful disputes and unintended consequences for your loved ones.
3 Benefits of Getting It Right:
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Your wishes are carried out exactly as intended
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Your loved ones avoid unnecessary legal disputes
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The estate administration process becomes faster and smoother
3 Severe Consequences of Getting It Wrong:
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Your will may be declared invalid or partially void
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Your estate may fall under intestacy rules, ignoring your intentions
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Family members may be forced into long and costly court battles
The cost of preparing a legally sound will is low, affordable, and completely worth it — especially compared to the cost of fixing it once it goes wrong.
Let’s look at four critical ways to protect your will from being contested in court.
1. Ensure Proper Mental Capacity
One of the most common reasons for a will being contested is that the testator (the person making the will) lacked mental capacity. Under Section 3 of the Wills Act 1959, only a person who is “of sound mind” may make a valid will. Courts in Malaysia apply the test from the English case Banks v Goodfellow (1870), still authoritative today.
The testator must:
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Understand the nature of making a will
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Understand the extent of their property
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Comprehend and appreciate the claims of those who might expect to benefit
Example:
In Lim Siew Lee v Tan Soon Wah [2005] 4 MLJ 276, a son challenged his father’s will on the basis of dementia. However, the court accepted medical evidence from a hospital visit just two days before the will was signed, where doctors recorded the father as alert and coherent. The lawyer who drafted the will also testified to the father’s mental clarity. The court upheld the will, and the challenge failed.
A lot of people think that if the testator could speak or walk around normally, there’s no need for a medical record. But actually, challenges often arise years later when memories fade — and what’s normal for family members may not satisfy a judge.
FAQ:
What kind of evidence helps prove mental capacity?
Ideally, a medical report issued within a few days of signing the will, plus a lawyer’s notes on the testator’s alertness and understanding during the drafting and signing process.
2. Avoid Undue Influence Risks
A will can also be challenged if someone close to the testator pressured or manipulated them. This is known as undue influence. While not defined in the Wills Act, it is covered under Section 16 of the Contracts Act 1950, which the courts have extended to probate matters. Undue influence voids a will or gift that results from such pressure.
Example:
In Samsudin v Mohamed [1998] 3 MLJ 648, an elderly woman left her home to her caregiver, bypassing all family members. Her niece challenged the will. The court examined the circumstances: the caregiver had arranged the lawyer, was present during all meetings, and kept the will secret. The judge concluded that the testator was under undue influence. The will was set aside.
To avoid this, testators should seek independent legal advice and ensure no beneficiary is involved in the preparation or execution of the will.
A lot of people think asking a trusted child to arrange the lawyer is safe. But actually, that involvement may later be interpreted as manipulation — especially if other siblings were excluded.
FAQ:
Can my child be present when I sign the will?
It is best that no beneficiary is present when the will is discussed or signed. Their presence could later be cited as evidence of influence, especially if others were excluded.
3. Follow Strict Legal Formalities
Many wills are challenged because they were not properly executed. Under Section 5 of the Wills Act 1959, a valid will must:
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Be in writing
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Be signed at the end by the testator
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Be witnessed by at least two persons present at the same time
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Be signed by both witnesses in the presence of the testator
Example:
In Re Estate of Wong Siew Yin (2013), the testator signed the will in front of only one witness — her domestic helper. The court refused probate, and the estate was treated as if there was no will at all. The result: distribution under the Distribution Act 1958, contrary to her wishes.
A lot of people think any signature will do — even a thumbprint. But actually, the strict signing and witnessing requirements of Section 5 must be met precisely. A single mistake can render the entire will invalid.
FAQ:
Can my spouse be a witness?
Yes, if your spouse is not a beneficiary. But if they stand to inherit under the will, their gift is void under Section 9 of the Wills Act 1959.
4. Use Clear and Precise Language
Wills can also be contested due to ambiguity. Vague terms, inconsistent clauses, or unclear beneficiary references often lead to legal disputes. The courts will attempt to interpret unclear language, but where uncertainty persists, parts of the will may be declared invalid.
Under Section 12 of the Wills Act 1959, a will must clearly state the testator’s intention. If the language used creates doubt, courts may be unable to enforce the testator’s wishes.
Example:
In Goh Thian Eng v Bank Bumiputra Malaysia Bhd [1995] 3 MLJ 137, a clause that stated “my savings account to be shared by those who have taken care of me” was challenged. The court could not identify who exactly had “taken care” of the deceased, and thus the clause failed for uncertainty. The funds were distributed under intestacy rules instead.
A lot of people think simple wording avoids legal problems. But actually, vague or emotional language creates confusion — especially in blended families or second marriages.
FAQ:
Can I write “all my children” instead of naming them?
You can, but it’s much safer to list full names and IC numbers. This avoids confusion in case of estranged or adopted children, or disputed parentage.
Conclusion
A properly drafted will is not just about avoiding disputes — it is a gift of certainty, peace, and honour to those you leave behind. Malaysia’s laws, particularly the Wills Act 1959, set clear rules. But those rules must be followed exactly. One overlooked detail or assumption could derail your entire estate plan.
Whether you are preparing your first will or updating an old one, professional legal guidance makes all the difference. At DGK, we regularly assist clients with will preparation, estate planning, and probate matters — both contentious and non-contentious.
If you want to ensure your final wishes are respected and protected, we are ready to assist.
