What are suspicious circumstances surrounding the making of a will?
Suspicious circumstances surrounding the making of the will are different from the circumstances surrounding the testamentary capacity of the testator (Tho Yow Pew & Anor v. Chua Kooi Hean [2002] 4 CLJ 90).
Simply put, suspicious circumstances surrounding the making of the will are circumstances that indicate that the testator possibly did not know and approve of the contents (or part of the contents) of his will.
These circumstances usually surround the preparation and execution of the will.
What is the effect of suspicious circumstances?
It is presumed in law that where the will complies with the formalities required by the Wills Act 1959 that the said will is valid.
However, even where the formalities are met, the will can sill be rendered void where, for example, the following criteria are present:
- Lack of testamentary capacity
- Fraud or forgery
- Suspicious circumstances
- Undue influence
Where suspicious circumstances are present, they must be removed to the satisfaction of the court before the court can allow the will to be probated.
Examples of suspicious circumstances surrounding the making of the will
The following examples indicate the presence of suspicious circumstances but do not on their own act as conclusive proof that the testator did not know or approve of the contents of his will:
Where the contents of the will were prepared or dictated by another person.
Where the instructions for the preparation of the will were given from another person.
Where the person who prepared the will or actively procures the execution of it derives a substantial benefit from the will.
Where the solicitor appointed to draft the will is procured and instructed by the person who derives a substantial benefit from the will.
Where the relationship between the testator and the intended beneficiary is unclear.
Where the terms of the will appear to be incoherent with the wishes and intentions of the testator.
How can suspicious circumstances be dispelled?
The propounder of the will must adduce affirmative proof to dispel or remove the suspicious circumstances. The best evidence to do so is evidence to show that the testator had knowledge and approved of the contents of the will.
In the recent Court of Appeal case of Teoh Ying Rin V. Savatery Jayaraman [2025] 5 CLJ 92, the evidence that was used to dispel suspicious circumstances were 2 letters from the testator dated the same day as the will substantiating the fact that the testator was fully aware of what his was doing in preparing his will and certain on how he intended to dispose his assets upon his demise.
How to prevent disputes from arising due to suspicious circumstances
Below is a non-exhaustive list of some steps that can be taken by a testator to prevent his will from being challenged due to suspicious circumstances:
Although the testator has the liberty to decide on any manner of distribution of his assets under his will, if the distribution of his assets appear unfair to his next of kin, the testator should make his intention clear in the will or produce a supplementary document to confirm his decision, as was done by the testator in the case of Teoh Ying Rin v Savatery Jayaraman.
The testator himself should appoint a solicitor of his choice and ensure that all instructions with regards to the preparation of the will come directly from the testator alone.
The testator should ensure that he reads and understands the contents of his will before executing it. If the testator is unable to read the will himself, he should request for the will to be read to him and explained by his solicitor
Conclusion
Understanding how suspicious circumstances surrounding the making of a will arises is beneficial to the testator seeking to ensure that his will is not challenged and his true intentions are preserved after his passing.
It also serves the next of kin of the testator in being able to identify where suspicious circumstances are present to prevent a will from being propounded where the testator likely did not have knowledge of or approved the will.
