Cheap wills

I came across a report in Free Malaysia Today yesterday about a court case that reminded me why we should take the preparation of a will seriously. A poorly prepared will can leave a family fighting in court for years, and that was what happened to the family of a woman named R Letchemy, whose will was signed just five weeks before she died.

Letchemy was 74 when she signed the will on 06 October 2021. She died on 11 November that year, but instead of settling her estate, the document became the subject of a legal dispute that dragged on for four years. Her brother, R Supparamaniam, challenged the will and sought to have the whole document declared invalid.

The High Court in Malacca eventually upheld most of the will's provisions. The judge found that Letchemy had the mental capacity to make a will and understood and approved how she wanted her assets distributed. This included leaving out her brother and his family. A person is generally entitled to decide who should inherit their estate, even if the decision disappoints or upsets other family members.

But there was one clause that the court refused to uphold. It was intended to penalise anyone who challenged the will or helped someone else to do so. The judge found insufficient evidence that Letchemy had understood and approved this particular provision, so it was struck out.

There was another detail. Letchemy could not read English, the language in which the will was written. Although a solicitor had explained the document to her in Tamil before she signed it, the court found shortcomings in the way her instructions had been recorded and in the evidence showing how the will had been explained to her. There was no contemporaneous note documenting the explanation and the solicitor's assessment of her understanding.

So it is not enough to produce a document and get the client to sign it, there is a need to establish that the client understands what the will says and that its provisions reflect the client's wishes. This is particularly important when the will contains unusual provisions or excludes close family members from an inheritance.

The law firm involved had charged between RM500 and RM700 for preparing a will. In a postscript to his judgment, Judicial Commissioner K Raja Segaran made the point that the care required in preparing a will should depend on what is at stake, not on how much the solicitor charges. As he put it, “A modest fee does not lessen the duty.”

The judge recommended several practical safeguards, including recording the client's instructions carefully, verifying the assets involved, explaining the draft in a language the client understands and keeping a record of the questions asked to establish that the client understands the document. He also warned against simply reusing standard clauses from earlier wills without checking that they reflect the wishes of the person making the will.

Reading this report also reminded me of the importance of having a properly prepared will in the first place. Through companies like Rockwills Corporation, the aim is to ensure that a will is drafted clearly and satisfactorily, based on the testator's instructions and wishes. The person making the will should understand its provisions, have the opportunity to clarify anything that is unclear and be satisfied that the document reflects what he or she wants to happen to the estate.

Of course, no one can guarantee that a will will never be challenged. But taking the time to explain the provisions properly and making sure the instructions are clearly documented can help reduce the risk of misunderstandings and disputes later.

In Letchemy's case, probate was eventually granted to her niece, N Selvarani, subject to the removal of the disputed clause. 

The lesson here is that making a will is one thing, but making sure it is properly prepared is another. A will is a private matter between ourselves and the person drawing it up, but once we are gone, the document may be all that is left to explain our wishes. If anything is unclear or poorly documented, those left behind may end up spending years arguing over what we intended.

If there are questions about making a will, or about how Rockwills Corporation can help, anyone can get in touch with me. I'm happy to help clarify the process and answer any questions. It is better to sort these matters out while we are still around to explain what we want, rather than leave our family to work it out for themselves later.