INTRODUCTION
A will is often challenged by attacking the deceased’s age, illness, medication or dependence on others.
Under Malaysian law, the real inquiry is whether the testator had testamentary capacity at the material time the will was made. Malaysian courts do not ask whether the testator was bedridden, looked frail, or suffered from serious illness. The courts will enquire whether the testator had a “sound mind” at the material time the will was made. [1][2]
TEST FOR TESTAMENTARY CAPACITY
The well-settled test is that the testator must understand [3] : –
i) that he is making a will and the effect of making it;
ii) the general nature and extent of the property he is disposing of; and
iii) the claims of those who ought to be considered.
No disorder of the mind or insane delusion should poison the testator’s affections, pervert his sense of right, or influence the disposition in a way that would not have happened if the mind had been sound. [3][4]
The testator does not need to be in perfect health. However, the testator must still know what he is doing, what he owns, and who may ordinarily have a claim on his estate.
“SOUND MIND” ≠ PERFECT HEALTH
A person may be very old, seriously ill, physically weak, or even close to death, and yet still have sufficient understanding to make a valid will. [1][2][3][4]
A will may still be valid even though the deceased is described as “a very sick man”, so long as he understood the nature and extent of the properties he was disposing of and was able to comprehend and appreciate the claims of the beneficiaries he had in mind. [2]
There must be clear evidence that the illness so affected the testator’s mental faculties as to make him unequal to the task of disposing of his property. Mere proof of serious illness is insufficient to displace prima facie testamentary capacity and due execution. [1]
If the testator is ill, that does not by itself deprive him of the ability or capacity to execute a will. What is required to vitiate testamentary capacity is clear evidence of an insane delusion existing at the time of making the will. [5]
ILLNESS OR MENTAL CONDITION
A will may be vulnerable if the evidence shows that, at the material time the will was made, the testator did not understand the nature of the act, the effect of the will, the extent of the property being disposed of, or the claims of those who ought to be considered. [1][3][4]
Cases before the courts distinguish between physical weakness and mental incapacity. A person may be weak in body but clear in mind.
However, if the testator’s mind was affected by delusion, confusion, medication, or cognitive impairment such that he was unable to understand the testamentary act, the will may fail. [3][4][6]
WHO MUST PROVE TESTAMENTARY CAPACITY?
Where the validity of a will is challenged, the propounder of the will bears the burden of proving [2][7][8] : –
i) testamentary capacity;
ii) due execution; and
iii) the absence of suspicious circumstances surrounding the making of the will.
Only after that burden is discharged does the burden shift to the person challenging the will to prove any vitiating factor such as undue influence, fraud or forgery. [2][7][8]
The challenger does not have to begin by disproving the will. The propounder must first satisfy the conscience of the court that the paper propounded is the last will of a free and capable testator. [7][8]
CHALLENGE TO A WILL MUST BE SUPPORTED BY EVIDENCE
Where the evidence is clear and consistent, the will is more likely to be upheld. Where the evidence is weak, contradictory, or raises unanswered suspicion, the will may be set aside. [2][6][7]
The following factors may be considered by the courts [1][2][8] : –
i) the evidence of the solicitor who prepared or witnessed the will;
ii) the evidence of the attesting witnesses;
iii) medical evidence directed to the testator’s mental state at the material time; and
iv) evidence that the contents of the will were read over to the testator and understood by him.
General references to old age, hospital visits, or illness are not enough. If unsupported by evidence, allegations of lack of testamentary capacity are “just a bare allegation” and “pure conjecture”. [9]
Where testamentary capacity is genuinely in dispute, the issue ordinarily turns on evidence at a full trial, including the evidence of witnesses, the solicitor, and, where relevant, medical practitioners. [7]
WHEN WILL A WILL GENERALLY BE VALID?
A will is generally valid where the court is satisfied that, at the time of execution [1][2][7][8]: –
i) the testator was fully conscious and had a sound mind;
ii) the testator understood and approved the contents of the will;
iii) the testator understood the nature and effect of making the will;
iv) the testator understood the general nature and extent of his property;
v) the testator was able to comprehend and appreciate the claims of those who ought to be considered;
vi) the will was duly executed; and
vii) any suspicious circumstances have been sufficiently explained or dispelled.
Once these matters are established, the courts will generally give effect to the wishes of a free and capable testator. The courts are not concerned with whether the disposition was fair, generous or expected. [5][8]
CONCLUSION
A “sound mind” does not mean perfect health. It means sufficient mental ability at the material time the will was made. [1][2][3]
Serious illness does not, without more, defeat capacity; but the will must still be shown to be the act of a free and capable mind. [1][2][5]
In the next part of this series, we will look at suspicious circumstances, and when they are serious enough to put the validity of a will in doubt.
Footnotes
[1] Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581 (Federal Court)
[2] Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (Federal Court)
[3] Banks v Goodfellow (1870) LR 5 QB 549 (Court of Queen’s Bench), as adopted and applied in Malaysian authorities including Udham Singh and Chin Jhin Thien
[4] Udham Singh v Indar Kaur [1971] 2 MLJ 263 (Federal Court)
[5] Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] MLJU 2712 (Court of Appeal)
[6] Aw Peck Luan & Anor v Kau Peck Guat [2025] 11 MLJ 208 (High Court)
[7] Lee Ah Sin @ Lee Sin Kee v Wasunan Tonrab & Anor [2023] 2 MLJ 818 (Court of Appeal)
[8] Shireen Anne Davies v Gerelda a/p Anthony Bartholomew Dings & Anor [2024] MLJU 510 (High Court)
[9] Wasunan Tonrab & Anor v Lee Ah Sin @ Lee Sin Kee [2021] 9 MLJ 838 (High Court)
Disclaimer: This article is for general information only and does not constitute legal advice or legal opinion. It should not be relied upon as a substitute for specific legal advice. No person should act (or refrain from acting) based on this article without obtaining advice on the specific facts and circumstances. Halim Hong & Quek does not accept responsibility or liability for any loss or damage arising from reliance on this article. Halim Hong & Quek reserves the right to update, amend or withdraw this article at any time. All rights reserved.
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About the authors
Chew Jin Heng
Senior Associate
Dispute Resolution
Halim Hong & Quek
jhchew@hhq.com.my
○
Chew Sin Yun
Associate
Dispute Resolution
Halim Hong & Quek
sy.chew@hhq.com.my
