PETALING JAYA: A poorly prepared will can leave a family embroiled in years of litigation, with the High Court in Melaka warning that solicitors must exercise the utmost care regardless of the fees they charge.
Judicial Commissioner K Raja Segaran made this observation in a dispute over the estate of R Letchemy, whose family spent four years fighting over a will she signed five weeks before her death.
The court upheld most of the will's provisions, ruling that Letchemy possessed the mental capacity to make it and fully understood and approved her decision to distribute her assets as she wished, including by the exclusion of her brother, R Supparamaniam, and his family.
However, the court struck out a clause that sought to penalise anyone who challenged the will or assisted in such a challenge, ruling that there was insufficient evidence to show Letchemy had understood and approved the provision.
The will was prepared by a law firm that charged between RM500 and RM700 for such services.
In a postscript, Raja Segaran said the seriousness of preparing a will must be measured by what is at stake, not the fee charged.
"A modest fee does not lessen the duty," he said, stressing that a solicitor who accepts instructions to draft a will also assumes responsibility for exercising the necessary care.
He advised solicitors to record instructions carefully, verify assets, explain drafts in a language that their clients understand and document the questions asked to establish that the testator understands the will.
Letchemy, 74, could not read English, the language in which her will was written. A solicitor explained it to her in Tamil before she signed it on Oct 6, 2021. She died on Nov 11 that year.
Supparamaniam sought to have the whole will declared invalid. The court examined Letchemy's health, family relationships, instructions to lawyers and understanding of the document.
The court found shortcomings in the recording of her instructions and the explanation of the will, including the absence of a contemporaneous note documenting the explanation and assessment of her understanding.
It also highlighted the danger of relying on standard clauses taken from earlier wills without ensuring that they reflect the individual client’s wishes.
Probate was granted to Letchemy’s niece, N Selvarani, subject to the usual registry requirements and removal of the disputed clause. Each party was ordered to bear its own costs.
The court stressed that its recommended safeguards were not additional legal requirements for a valid will, but measures to preserve evidence and reduce the risk of disputes.