Estate Litigation: Contesting the validity of a will
By Charis Wong and Lee Ee Yang
It is hard to imagine that mere words can birth years of litigation, with court trials spanning more than a hundred days.
Yet when one considers that such words – when contained in a will – can make a potential beneficiary seeking to rely on them several million dollars richer, it is no wonder that legal tussles surrounding the validity of a will often come before the Courts for adjudication.
This article provides a summary of selected Hong Kong and Singapore cases surrounding the validity of wills and sets out the common challenges to the validity of a will.
Hong Kong Cases
Two dramatic cases surrounding the late Hong Kong tycoon Nina Wang, who once held the title of the “Richest Woman in Asia”, captured the city’s attention in the 2000s and 2010s. They illustrate the legal issues that can arise when the Courts are presented with conflicting wills.
The Estate of Teddy Wang: Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 – Will Forgery
Teddy Wang, the founder of Chinachem Group, was kidnapped in 1990. As his body was never found, the Court declared Teddy legally dead in 1999. An 8-year probate battle between Teddy’s wife, Nina Wang and his father, Mr Wang, then ensued.
At the centre of the dispute stood two conflicting wills: (1) a will executed by Teddy in 1968, which named Mr Wang as the sole beneficiary of Teddy’s estate; and (2) a will executed by Teddy in 1990, which named Nina Wang as the sole beneficiary. Mr Wang claimed the latter will was forged. The Court’s determination of the question of whether the 1990 will was forged would determine who stood to inherit the multi-billion-dollar fortunes of Teddy Wang.
After a 171-day trial, the trial judge found that the 1990 will was forged. On appeal, the Court of Appeal upheld the lower court’s judgment. Shortly after the Court of Appeal’s decision, Nina Wang was charged with forgery.
The matter was appealed to Hong Kong’s highest court, the Court of Final Appeal. After reviewing in detail the handwriting evidence of the courts below, the Court of Final Appeal vindicated Nina Wang, held that the 1990 will was not forged, and ordered the 1990 will to be admitted to probate as Teddy’s last will. Nina Wang thus inherited her late husband’s estate and became the richest woman in Asia.
The Estate of Nina Kung: Chinachem Charitable Foundation Limited v Chan Chun Cheun & Ors [2010] HKCU 27 – Will Forgery
As fate would have it, just 2 years after Nina Wang won the probate litigation against her late husband’s father, Nina Wang passed away from cancer.
In a curious case of history repeating itself, Nina Wang’s last will was contested after her death. Nina Wang’s fengshui master and alleged lover, Tony Chan, claimed that he possessed Nina’s last will which was executed in 2006. This purported will bequeathed the remainder of Nina Wang’s estate to Tony.
The 2006 will contradicted Nina Wang’s earlier will which was executed in 2002, and bequeathed Nina Wang’s estate entirely to the Chinachem Charitable Foundation Limited (“Foundation”).
It was not disputed that a document was executed by Nina in 2006 with two attesting witnesses. The Foundation argued that the document which was executed in 2006 was only a partial will which made a specific bequest of HKD10 million to Tony, whereas Tony contended that the document was the 2006 will as produced by him.
In its 321-page judgment, the Court gave significant weight to the evidence of the two attesting witnesses of the 2006 will, which was that the document that they had attested in 2006 was a partial will. The Court also considered the evidence of handwriting experts who concluded that the 2006 will was a forgery, with the alleged signatures of Nina Wang and the two attesting witnesses being fake but highly-skilled simulations. Accordingly, the Court held that the document executed in 2006 was the partial will, and not the purported will produced by Tony, and that the 2006 will had been forged by Tony.
The 2002 will was thus admitted into probate, leaving Nina Wang’s multi-billion-dollar estate to the Foundation. Shortly after the trial, Tony was convicted of fraud.
Singapore Cases
Closer to home, the Singapore courts have also seen their fair share of pitched battles over the validity of wills.
Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 (“Muriel Chee”) – Testamentary Capacity
In Muriel Chee, the Court of Appeal held that a will executed by one Mdm Goh, who had amassed substantial wealth through her property investments, in 1996 was invalid as Mdm Goh had lacked testamentary capacity at the time she executed her will.
Muriel, one of Mdm Goh’s daughters, had commenced the action to uphold the 1996 will as Mdm Goh’s last will. Under the 1996 will, Muriel stood to gain a share in her mother’s estate, whereas, under the previous will executed by her mother in 1989, she would get none. The 1989 will had bequeathed almost Mdm Goh’s entire residuary estate to Caroline, who was her favourite daughter.
Shortly after Mdm Goh was diagnosed to be suffering from an early onset of dementia, Muriel engaged a solicitor to prepare the 1996 will for Mdm Goh. The new will was executed by Mdm Goh in the presence of the solicitor and two other witnesses, who testified that the 1996 will was read over to Mdm Goh line by line.
The Court of Appeal held the 1996 will was invalid as Mdm Goh did not possess testamentary capacity at the material time. As the propounder of the 1996 will, Muriel had the burden of showing that Mdm Goh had testamentary capacity at the material time.
However, the medical evidence adduced by her of Mdm Goh’s testamentary capacity was weak. Contemporaneous evidence in the form of eyewitness testimonies of what had happened during the signing of the 1996 will did not suffice to show Mdm Goh knew and approved the contents of the 1996 will when she signed the same. Although under ordinary circumstances the reading of a will to a testatrix not suffering from any mental infirmity would suffice to show her understanding of the contents of the will, the Court of Appeal held that this general rule would not apply where the testatrix might not have full understanding due to the onset of dementia.
Further, the circumstances surrounding the preparation and execution of the 1996 will were suspicious. Although Caroline was Mdm Goh’s favourite child to whom she had always intended to bequeath her residuary estate, Caroline was inexplicably excluded from the 1996 will. Muriel had hastily procured the drafting and execution of the 1996 will under which she became one of the beneficiaries, when previously she was left out. Although Muriel claimed that the solicitor had advised Mdm Goh on how to distribute her assets in a “fair manner”, and Mdm Goh had then instructed the solicitor to draft the 1996 will after having discussed the terms with her, the solicitor could not recall the said meeting with Mdm Goh.
In the circumstances, the Court found that the evidence surrounding the preparation and execution of the 1996 will did not show that it had been properly explained to Mdm Goh. Instead, it appeared that Mdm Goh had merely signed what was placed in front of her. Accordingly, the 1996 will was held to be invalid.
UWF and another v UWH and another [2020] SGHCF 22 (“UWF”) – Testamentary Capacity and Undue Influence
In this recent case, two children of a wealthy widow, who received a smaller inheritance than their other three siblings, challenged the validity of her will. They alleged that (i) their mother lacked the testamentary capacity to execute her will as she was labouring under her bipolar disorder at the material time; and (ii) the mother’s will was executed under the undue influence of their siblings.
The mother’s estate was substantial and included a property in Tanjong Katong worth more than S$10 million. Had the two children succeeded in challenging the validity of the will, their mother’s estate would have been divided equally among the five siblings, and the two children would have been several million dollars richer.
In a 123-paged judgment, the High Court judge examined the widow’s life, character and values, her relationship with each family member, the events surrounding the making of the will, her medical history and the expert opinion of four psychiatrists. The judge found that it was explicable that the two children (her third son and daughter) were given less than what the other three sons had received. The widow had an acrimonious relationship with her third son, who was unemployed and refused to move out of her home. As for the lower share that the widow’s daughter received, the judge found this was consistent with the conservative views on gender roles that the widow held, and that she favoured her sons over her daughter.
The judge also found that the widow’s bipolar disorder was in remission at the time she executed her will, thus rejecting the claim that the widow lacked testamentary capacity. Accordingly, the widow’s will was held to be valid.
Common challenges to the validity of a will
To say that mere words in a will can give rise to probate litigation is not entirely accurate. Often, the seeds for estate litigation are a lack of trust over feuding family members of the testator and a (potential) beneficiary’s dissatisfaction with the testator’s intended distribution of his assets as set out in his will.
However, a (potential) beneficiary cannot mount a viable attack in Court on the validity of the will on the sole basis that he is dissatisfied with the distribution of the testator’s assets under the will. A testator may distribute his assets as he wishes, subject to adequate provision being made for his dependents: see the Inheritance (Family Provision) Act.
In the words of the High Court judge in UWF:
"Whatever legacy that children may expect to receive under the will of a parent who has passed on, it should be remembered that a testator has full autonomy on how to dispose of his estate...A parent is entitled to have favourite children and least-favoured children, in accordance to his or her subjective preferences."
Thus a viable challenge to the validity of a will must take on legal form. Common challenges to the validity of the will are as follows:
1. The will was made by fraud
For a will to be valid, a testator must be aware of the contents of the will and they must reflect his genuine wishes at the time of the signing.
A will may be struck down if it were procured by fraud – either the testator was tricked into signing the will, unaware of its actual contents, or the will was forged. This was the key issue in the Teddy Wang and Nina Kung cases.
2. The testator did not possess the testamentary capacity to make the will
Put simply, testamentary capacity is the ability to understand the effect of a will. The legal requirements of testamentary capacity are as follows:
(a) the testator understands the nature of the act; and its consequences;
(b) he knows the extent of the property of which he is disposing;
(c) he knows who his beneficiaries are and can appreciate their claims to the property; and
(d) he is free from an abnormal state of mind that might distort feelings or judgments relevant to making the will.
The propounder of the will bears the burden of proving that the testator possessed testamentary capacity. This would include proving that the testator had the mental capacity to make the will at the time. Mental incapacity means the testator suffered from a mental impairment which resulted in his inability to make a decision for himself.
A finding that the testator had a mental illness does not in itself mean that the testator did not possess testamentary capacity. If the testator was suffering from mental illness (e.g. dementia) prior to the execution of the will that results in a loss of testamentary capacity, there is a presumption that the testator continued to lack testamentary capacity at the time of executing the will.
However, such a presumption can be rebutted if it is shown that there were moments of lucidity demonstrating testamentary capacity at the time of execution despite the testator suffering from the mental illness. Thus in Muriel Chee, the Court held that the mere fact that the testator suffered from an early onset of dementia at the time she executed the will per se did not mean that she lacked testamentary capacity at the material time. The testator may be lucid and possess testamentary capacity at the time of execution.
3. The testator made the will under undue influence
Undue influence in the probate context means that the testator was coerced into making a will which he does not want to make.
Undue influence cannot be presumed in the probate context. Instead, it must be shown that the party accused of undue influence dominated the testator to such an extent that the testator’s independence was so undermined that the accused party’s domination caused the testator to execute the will.
4. Formalities of the will are not complied with
Under the Wills Act, the following legal requirements must be complied with for a will to be deemed valid:
- The will must be in writing;
- The testator must be at least 21 years old;
- The testator must sign the will at the foot of the will;
- The testator’s signature must be witnessed by two or more witnesses, who must also sign the will in his presence; and
- The two main witnesses cannot be beneficiaries of the will, or spouses of the beneficiaries.
The will may be found invalid if it can be proven that any of these requirements had not been complied with when the will was made.
Effect of a successful challenge to a will
If there are two conflicting wills and the later will is found by the Court to be invalid, the former will (unless it is also struck down by the Court on one or more of the grounds above) will govern the distribution of the testator’s estate.
If there is no valid will, the estate will be distributed in accordance with section 5 of the Intestate Succession Act.
Other points to note
Do note that if a grant of probate has been issued, you must contest the will within 6 months of the grant’s issuance. Should you contest the will after the 6-month period, you will have to explain to the Court why you were unable to contest the will within 6 months from the issuance of the grant. The Court will then have the discretion to determine if and how to proceed with your claim.
If you require legal advice on wills, probate, estate litigation or related matters, our firm can provide expert advice on the latest developments in this area of law. Contact us at info@covenantchambers.com.
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