INTRODUCTION

In our previous article, we discussed what constitutes a “sound mind” and the testamentary capacity of a testator when making a will.

In addition to testamentary capacity, a will may also be challenged where there are suspicious circumstances surrounding the making or execution of the will.

If the propounder of a will wishes to succeed in obtaining probate, he must establish testamentary capacity and dispel any suspicious circumstances surrounding the making of the will.

“SUSPICIOUS CIRCUMSTANCES”?

Suspicious circumstances in the context of wills relate to circumstances surrounding the making of the will, not circumstances surrounding the testamentary capacity of the testator. [1][2][3]

The question of suspicious circumstances is therefore relevant in the context of the testator’s knowledge and approval of the contents of the will. [2][3]

A testator must know and approve of the contents of his will, and the will must be the result of the testator’s own intelligence and volition. [2][3]

The contents of the will need not originate from the testator, provided that the testator understands and approves them. However, if the contents of the will originate from another person and the testator executes it in ignorance of its contents, the will is invalid. [2]

It is not enough that the testator knows what is written in the will which he signs, as he must know and approve the contents of the will in the sense that he understands what he is doing and its effect. [3]

Where the circumstances are suspicious, the propounder must affirmatively prove knowledge and approval so that the court is satisfied that the will represents the wishes of the testator. [3]

WHAT AMOUNTS TO SUSPICIOUS CIRCUMSTANCES?

There is no exhaustive list of suspicious circumstances, as the issue depends on the facts and circumstances of each case. [3][6]

A suspicion may arise where the circumstances are highly suspicious, abnormal and not normally expected in an ordinary situation or from a normal person.

Common examples include:

• i) where a person who prepares or writes the will takes a substantial benefit under it. [2][4]
• ii) where the beneficiary was the prime mover, the main beneficiary and the conduit of communication between the testator and the solicitor. [2]
• iii) where the deceased did not understand the language in which the will was drafted or explained. [8]
• iv) where there is doubt as to whether the deceased signed or affixed his thumbprint on the will. [8]
• v) where material witnesses, including attesting witnesses, are not called despite their evidence being useful to determine whether the will is valid. [8]
• vi) where there is a sharp conflict between handwriting expert evidence and direct evidence from attesting witnesses. [5][9]
• vii) where there is evidence of a failing mind coupled with the fact that a beneficiary was concerned in the instructions for, or preparation of the will. [3]

BURDEN TO DISPEL SUSPICION

Under Malaysian law, where a will has not been admitted to probate and its validity is challenged, the propounder has the legal burden to prove on a balance of probabilities that the testator had testamentary capacity to sign the will and that no suspicious circumstances existed. [3][5]

The propounder has the initial evidential burden to adduce evidence at trial which can prove a prima facie case that the testator had testamentary capacity and that there were no suspicious circumstances. [3][5]

If the propounder proves a prima facie case, the evidential burden shifts to the challenger to adduce evidence that the testator had no testamentary capacity or that suspicious circumstances existed. [3]

At the end of the trial, the court must decide whether the propounder has discharged both the legal and evidential burden on a balance of probabilities. [3]

If a will has already been admitted to probate and a party applies to revoke the probate, the legal burden to revoke the probate lies with the applicant seeking revocation. [3]

The onus of establishing undue influence, fraud or forgery lies with the person challenging the will. [2][3][5]

In a contentious probate action, the issues of testamentary capacity, suspicious circumstances and undue influence will ordinarily have to be tested and determined by the evidence of witnesses at a full trial in open court. [4]

WHEN ARE SUSPICIOUS CIRCUMSTANCES SERIOUS ENOUGH?

Suspicious circumstances are not assessed by a fixed formula or checklist, because the court must consider all the relevant evidence and the circumstances of the particular case. [3][4][6]

If suspicious circumstances exist, the court must consider whether the propounder has furnished affirmative proof of the testator’s knowledge and approval which is strong enough to satisfy the court in the particular circumstances. [2][3][4]

The greater the degree of suspicion, the stronger the affirmative proof must be to remove it. [2][3]|

Affirmative proof may include:

• i) evidence that the effect of the document was explained to the testator, that the testator knew the extent of his property, and that he comprehended and appreciated the claims on his bounty to which he ought to give effect. [3]
• ii) evidence that the will was read over by or to the testator when it was executed, or that the will was prepared in accordance with instructions which the testator understood and approved. [2][3]

Ultimately, the inquiry into knowledge and approval is a holistic exercise based on the evaluation of all the evidence, both factual and expert. [3]

The presence of a person taking under a will does not necessarily invalidate the will. A circumstance which appears unusual in isolation may be adequately explained when the court considers the evidence as a whole. [5][6]

In Karn Woon Lin & Anor v Cheah Chor Bok, the deceased’s estranged brother was named as the sole executor, trustee and beneficiary under the second will, but there was sufficient admissible evidence to support the finding that the will was valid. [6]

The Court of Appeal considered that the defendant was not the writer and did not prepare the will, that the will was prepared by a lawyer, and that the deceased had approved and attested to it. [6]

Similarly, in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors, the alleged suspicious circumstances were sufficiently explained once the direct evidence of the witnesses who were present when the deceased executed the will was accepted. [5]

In Thiang Kai Goh v Yee Bee Eng & Ors, old age, an unsteady gait and death by “old age” did not by themselves prove that the testator lacked testamentary capacity when he affixed his thumbprint to the will. [7]

By contrast, in Appala Tao a/l Simachamlam dan lain-lain lwn Pragasarow a/l Simachalam, the will was set aside where the court was not satisfied on execution, language, the deceased’s medical condition and the absence of material witnesses. [8]

In Kong Kin Lay & Ors v Kong Kin Siong & Ors, the Court of Appeal found real doubt regarding the 97-year-old testator’s testamentary capacity and held that there was no proof that the deceased knew and approved the contents of the will. [3]

CONCLUSION

Suspicious circumstances may place the court on inquiry, but they do not automatically invalidate a will. [3][5][6]

The real question is whether the propounder has discharged the burden of establishing that the testator knew and approved the contents of the will and that the signed document propounded is the last will of a free and capable testator. [3][4][5]

Where suspicion arises, the propounder should be ready to explain how the will was prepared, signed, read, translated, understood and approved by the testator. [2][3][4][8]

The court will examine the totality of the evidence, including the evidence of attesting witnesses, solicitors, medical practitioners, family members, documentary records and expert evidence. [3][4][5][9]

Ultimately, each probate dispute turns on its own peculiar facts, and the court must decide whether the propounder has discharged the burden of proof on a balance of probabilities. [3][5][6]

Footnotes

[1] Tho Yow Pew & Anor v Chua Kooi Hean [2002] 4 MLJ 97 (Court of Appeal).

[2] Tob Weng Keong & Anor v Tob Chee Hoong [2019] MLJU 1435; [2019] 10 CLJ 15 (Court of Appeal).

[3] Kong Kin Lay & Ors v Kong Kin Siong & Ors [2025] 5 MLJ 891 (Court of Appeal).

[4] Lee Ah Sin @ Lee Sin Kee v Wasunan Tonrab & Anor [2023] 2 MLJ 818 (Court of Appeal).

[5] Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (Federal Court).

[6] Karn Woon Lin & Anor v Cheah Chor Bok [2013] 3 MLJ 457 (Court of Appeal).

[7] Thiang Kai Goh v Yee Bee Eng & Ors [2005] 1 MLJ 431 (High Court).

[8] Appala Tao a/l Simachamlam dan lain-lain lwn Pragasarow a/l Simachalam [2007] 5 MLJ 473 (High Court).

[9] Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 (Federal 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

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Kelly Yeoh
Pupil-in-Chambers
Dispute Resolution
Halim Hong & Quek
kelly.yeoh@hhq.com.my