Left Out of a Will? Here’s What You Can Possibly Do
by Cassandra Lee ~ 26 November 2018
Contributed by:
Cassandra Lee Ying Ying (Partner)
Tel: +603-6201 5678 / Fax: +603-6203 5678
Email: cly@thomasphilip.com.my
Website:www.thomasphilip.com.my
For some, finding out that they have been left out of a Will leaves them with much anguish, confusion and frustration. Such situations will eventually lead to strife amongst family members. Having clarity of what one can and cannot do in such circumstances may help a person who believes he has been wrongfully left out of a Will see the situation from another perspective.
So, what can you possibly do if you find yourself in the unenviable situation of being left out of a Will you thought you will benefit from?
The short answer to this question is that in most situations, there is very little that you can do. In a few exceptional situations, however, a few time sensitive options may be open to you.
1. Determine whether you are an “interested party” who has standing to challenge the Will.
Before even considering the merits of a claim to challenge a Will, you need to first determine whether you are an “interested party” in a deceased person’s estate by law. The Courts will not entertain a claim or challenge from a mere “busybody”. An “interested party” in a deceased person’s estate is defined as “an individual or group of individual who have a ‘recognised’ interest in the estate of the deceased…a beneficiary, a residuary legatee, a creditor or a trustee…”[1]
In determining whether a person is an “interested party”, the Courts have adopted the “default beneficiary” approach. The Courts may be more likely to deem the Claimant a valid beneficiary to a Will if the Claimant would have, by default, benefited under the Will should the deceased have died intestate (i.e. not having left a valid Will).
In the case of Lee Ngan Fong & ors v Gan Bo Tan & Ors [2011] 1 LNS 770, the Court of Appeal found that the siblings and a mere friend of the deceased who sought to challenge the deceased’s Will had no legal standing to do so in light of the fact that the deceased died leaving behind a mother, a wife and 3 lawful children. The Court held that even if the deceased’s Will is declared null and void and the deceased’s estate is distributed in accordance with Section 6 of the Distribution Act, 1958, the deceased’s siblings and friend will not be beneficiaries of the deceased’s estate.
2. Ask for a copy of the Will
Once you realise that you have been left out of a Will, the first step you should do is to ask for a copy of the Will. You need to be aware that if you are not a beneficiary under the Will, the executor is under no obligations to provide you with a copy of the Will, unless he is compelled by a court order to do so.
Once you realise that you have been left out of a Will, the first step you should do is ask for a copy of the Will.
In our experience, most of our clients are not informed of the existence of a Will until they start questioning the relevant parties (for example, their other siblings) many months later. By this time, the appointed executor would usually have already applied for or obtained a Grant of Probate from the High Court. In such circumstances, you can obtain confirmation from the High Court as to whether Probate has been granted in respect of the deceased person’s estate. If a Grant of Probate has in fact been granted, you will be able to obtain a copy of the Grant of Probate and the Will by making an application and paying a small fee in the High Court.
In cases where you are aware of the existence of a Will and who the executor is, if the executor refuses your request to sight the Will, you can make an application in Court to seek a court order for the executor to do so.
This is provided for under Section 41 of the Probate and Administration Act, 1959. However, you will need to satisfy the Court that you are an “interested party” with a recognised interest in the deceased’s estate before the Court will assist you.
In the case of Lionel Lau Siang Kok v Datuk Seri Panglima Lau Cho Kun[2], the Court of Appeal set aside the High Court’s decision which struck out the Plaintiff/Appellant’s action pursuant to Section 41 of the 1959 Act for an order for the executor to bring in the Will and allow the Plaintiff to sight the Will on the grounds that the Plaintiff, being an illegitimate son of the deceased, was a “stranger for all intents and the purpose of the estate of the deceased as he is not a beneficiary under the will”. The Court of Appeal held that the expression “person interested” in Section 41 of the 1959 Act incorporates a novel area of the law which has not been specifically defined in the Act. The Court of Appeal went on to hold that Section 41 does not require a person like the Plaintiff to undergo a DNA tset in order to be an “interested person” under Section 41. This case seems to suggest that whether a person is an “interested person” under Section 41 of the 1959 Act depends very much on the facts and circumstances of each case.
3. Seek legal advice as soon as possible after you discovered that you have been left out of a Will
It is important that you seek legal advice as soon as you discover that you may have been left out of a Will to know where you stand and what can be done in your circumstances.
Every case varies and your solicitor will be bale to advise you on your possible options depending on the situation you may be in. You will want to ask a solicitor whether you have standing (or locus standi) to challenge the Will in the first place. In other words, you will need to be an interested party before the merits of your claim can even be considered.
If you are advised that you have standing to challenge the Will, the next question to ask is on what basis are you challenging the Will. The circumstances upon which a Will can be challenged are limited and there are evidentiary hurdles which you may have to overcome.
...the Court is not concerned with the fairness of the Will. The fact that the Will is grossly unfair is not... a ground to challenge the Will.
Examples of circumstances where a Will can be challenged are as follows:
- The Will does not satisfy the requirements of making a Will as set out in the Wills Act, 1959;
- The testator lacks the mental capacity to make a Will but it must be noted that to prove this, one must show that the testator suffered a mental disorder or insane delusion at the time the Will was made;
- There are suspicious circumstances surrounding the making of the Will (e.g. duress, undue influence, fraud or forgery).
It is also important to note that the Court is not concerned with the fairness of the Will[3]. The fact that the Will is grossly unfair is not on its own a ground to challenge the Will.
4. If you are advised that you have a claim, be mindful of the limitation period to bring your claim
Your solicitor should advise you that if you have a reasonable claim to challenge the Will, you should file your action within 12 years of discovering that you have been left out of the Will.
Section 23 of the Limitation Act, 1953 provides that “…no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued…”.
In the recent case of Yap Lan & 4 ors v Kong See Kuan [2018] 1 LNS 819, the High Court dismissed the Plaintiffs’ claim to revoke the Grant of Probate on, amongst others, the ground that the Plaintiffs’ claim which was brought more than 12 years after discovering that they had been left out of the Will as Section 23 of the Limitation Act, 1953 barred them from making such a claim after 12 years[4].
In the Kong See Kuan case, the Plaintiffs argued unsuccessfully that Section 23 of the Limitation Act, 1953 is not applicable in the case and Section 22 of the Limitation Act, 1953 should apply instead as the Plaintiffs sought to establish that their claim was an action by beneficiaries under a trust and they are alleging fraud against the Defendant. The Court found that before the Plaintiffs can even rely on the provisions of Section 22 of the Limitation Act, 1953, they must first establish that they are in fact beneficiaries of the deceased’s estate. The Plaintiffs therefore ought to have brought an action to declare themselves as beneficiaries and consequently revoke the Grant of Probate granted to the Defendant within 12 years of discovering that they had been left out of the deceased’s Will as provided by section 23 of the Limitation Act, 1953.
Other practical reasons to bring your action expeditiously once you have been advised that you have a claim is that it is much more advantageous to you to bring your claim before the estate has been fully administered and distributed, if the situation allows you to do so.