Essential Elements of a Will

Essential elements that must be present in order for a Hong Kong will to be deemed valid

By LAI Man Chun Anthony

Introduction

1 A will is a document which contains statements regarding the disposition of a person’s property. It is not operative until the testator’s death and as such, a will is testamentary and is revocable. The testator can appoint, add or remove executors, trustees; and/or beneficiaries in a will and may even revoke previous wills.

Governing laws

2 The domicile of the deceased as at the date of his death can have implications on the disposition of estate in his will. Where a will is made in Hong Kong by a testator domiciled in Hong Kong at the date of his death, all matters, other than disposition of immovables situated outside Hong Kong, will be governed by Hong Kong law. For disposition of immovables situated outside Hong Kong, it is recommended that such properties should be dealt with by a foreign will executed in accordance with the law governing such immovables.

3 The laws governing the validity of wills and grant of probate in Hong Kong can be found in the Wills Ordinance (Cap. 30) and Probate and Administration Ordinance (Cap. 10). Section 5 of the Wills Ordinance provides that no will will be valid unless:

a. it is in writing, and signed by the testator, or by some other person in his presence and by this direction; and

b. it appears that the testator intended by his signature to give effect to the will; and

c. the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

d. each witness has attested and signed or acknowledged his signature in the presence of the testator.

4 The Wills Ordinance contains a general dispensing provision in section 5(2) underwhich a will will be deemed to be duly executed even if requirements under section 5(1) have not been complied with, provided that there is no reasonable doubt that the document embodies testamentary intentions of the deceased.

Capacity

5 In general, for a will to be valid, the testator must have attained full age, that is 18 or above, at the time when he makes his will. This is subject to exceptions as contained in section 4(2) of the Wills Ordinance which provides that a married person, a person in actual naval, military or air force service and a mariner or seaman at sea, may make a valid will even though he is under the age of 18. Thus, a will made by anyone under the age of 18 is invalid unless that person has privileged status under section 4(2).

6 Further, a testator must have the necessary mental capacity to make a will. When executing the will, the testator must be of sound mind in understanding the act that he is doing. In common law, sound testamentary capacity means that three things must co-exist at the same time, namely:

a. The testator must understand that he is giving his property to one or more objects of his regard;

b. He must understand and recollect the extent of his property; and

c. He must also understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will.

7 There is a rebuttable presumption that the testator was sane at the time a will was made. However, if the testator’s mental capacity is contested, the onus is on the person propounding the will to prove that the testator was of sound mind at the time when he made his will.

Knowledge and approval

8 A will is not valid unless the testator knows and approves of the contents of his will. The burden of proof is on the propounder of the will to prove that the testator knew and approved of the will. This burden is usually discharged by the presumption of regularity which arises if it is proved that the testator signed the will and there is no contrary evidence.

9 Proof of testamentary capacity of the deceased and the due execution of the will, (without more), will give rise to a proper inference of knowledge and approval. Where the circumstances are such as to arouse the suspicion of the court, the propounder must prove affirmatively knowledge and approval so as to satisfy the court that the will represents the wishes of the testator on the balance of probabilities.

10 Previous cases suggested that affirmative evidence of knowledge and approval of the contents of a will will be required when the testators are deaf and dumb, or blind, and when the person who prepared the will received a benefit under it. All these circumstances may raise a suspicion as to whether the testator has true knowledge and approval of the content of the will.

11 In Barry v Butlin, the court held that:

“if a party write or prepares a will, under which he takes a benefit, that is a circumstances that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

12 The rule in Barry v Butlin was applied in Tyrrell v Painton & Another. In Tyrrell v Painton & Another, the person who had drawn up the will was someone other than the person who took under it. The court held that where the person who had drawn up the will and where the beneficiaries of the will were closely related or associated, the rule in Barry v Butlin would also applied. In such cases, the propounder of the will was equally required to dispel that suspicion by adducing affirmative evidence that the testator did indeed know and approve the contents of the will.

13 In Tchilingirian v Quzounian, the rule in Barry v Butlin was again invoked when it is shown that a beneficiary under the will has been instrumental in procuring and arranging the execution of the will from which he gains a substantial benefit.

Mistake

14 A valid will must not contain a vitiating mistake. Where it is alleged that the testator did not know and approve of particular words or clauses in the will because of mistake, the court is empowered to omit words and rectify any omissions or errors in wills by giving proper construction. Further, pursuant to section 23A of the Wills Ordinance, the court has the power to rectify the wills so as to remedy mistakes caused by clerical errors and mistakes arising from a failure to understand the testator’s instructions.

15 In Wu Man Shan v Registrar , the Chinese name of the testatrix was written as that of her husband in the interpretation clause. This was held to be a clerical error and was rectified under section 23A of the Wills Ordinance.

Undue Influence

16 The testator must not be subjected to fraud or undue influence. A gift obtained under a will made by undue influence or fraud is liable to be set aside upon proof of the undue influence or fraud.

17 Where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence. Under such circumstances, the propounder of the will does not have the burden of disproving fraud or undue influence.

18 There must be a positive proof of coercion overpowering the volition of the testator. The mere proof of existence of particular relationship, e.g. husband and wife, parent and child, doctor and patient, etc. does not raise a presumption of undue influence sufficient to vitiate a will.

19 In Mo Po Chim v Mar Lok Shan, the plaintiffs seek to prove a will of the deceased made in 1985 in solemn form. The 1st and 2nd defendants and the former 7th plaintiff by counterclaim seek to propound a will of the deceased executed in 1986. The plaintiffs attacked the 1986 will by alleging undue influence of the deceased’s brother over him in its preparation and execution. The Court held that there was no case of actual coercion in which pressure was made to bear on or was otherwise exercised to overpower the volition of the deceased in the making of the 1986 will.

Signing and witnessing

20 Pursuant to section 5(1)(a) of the Wills Ordinance, it is no longer necessary for the testator to sign at the foot or end of the will if “it appears that the testator intended by his signature to give effect to the will.” As such, a testator has geographical liberty as to where he or she signs.

21 A signature on the document will not be accepted if it was a signature to some earlier will, or to an earlier and different, form of the document. Therefore, whether the testator signed his will and then made alterations to it witnessed by two witnesses, but did not re-sign, he could not rely on the earlier signature as a signature to what was in effect, a later will, although on the same document.

22 A valid will must be attested and signed or acknowledge by 2 witnesses in the presence of the testator.

23 Any gifts under the will to the attesting witnesses or their spouse will be voided under section 10(1) of the Wills Ordinance which provides that “if a person attests the execution of a will, and any disposition of or affecting the property is given or made by the will to that person or his spouse, that disposition shall, so far as only concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be void”.

24 That said, the above provision does not apply where:

a. the witness is supernumerary;

b. the witness (or spouse) only takes the gift as trustee and not beneficially; and

c. the witness’s marriage occurred after the date of the will.

25 Executors, creditors and their wives or husbands are all admissible witness to prove execution of a will or the validity or invalidity thereof.

Revocation of wills

26 All wills are revocable even if the same is expressed to be irrevocable. All wills can be revoked by any of the methods set out in sections 13 and 14 of the Wills Ordinance.

26.1 By marriage

26.1.1 A will is revoked by the testator’s subsequent marriage unless expressed to be made in contemplation of that marriage. It should be noted that the marriage must be lawful as a will will not be revoked by a void marriage.

26.1.2 Section 14(4) of the Wills Ordinance further provides that where it appears form the will that the testator expected to be married to a particular person and that a disposition in the will should not be revoked by that marriage, the disposition is not revoked by the marriage. In these circumstances, there is a rebuttable presumption that other dispositions take effect unless it appears from the will that the testator intended that they should be revoked by the marriage. The effect of such section is that an expectation and intention in any clause of the will, will not only save that disposition but will also tend to preserve the whole will. Thus, if the testator intends that a disposition should survive the marriage to a particular person, the will should specify the testator’s intentions as regards each disposition.

26.1.3 Under the present law, divorce does not cause any revocation of a will or in part but the gift to the testator’s former spouse would lapse.

26.2 By another valid will

26.2.1 A later will will revoke an earlier will either by:

(a) an express revocation clause; or

(b) a later will or codicil which is inconsistent with the previous will.

26.2.2 An earlier will is revoked by an express clause of revocation in a subsequent will or codicil and no particular form of words is necessary for this purpose. A general express clause of revocation may operate to revoke all testamentary instruments previously executed including testamentary appointments.

26.2.3 A later will or codicil dealing with all the testator’s property revokes all earlier wills whether or not it contains an express revocation clause. The mere fact that a subsequent disposition has been made does not automatically operate as a total revocation of an earlier disposition, unless the later expressly or in effect revokes the former, or the two are inconsistent with each other.

26.3 By burning, tearing or otherwise destroying

26.3.1 A will may be revoked by burning, tearing or otherwise destroying it by the testator or by some other person in his presence and by his direction, with the intention of revoking it. Hence there must be both the act of destruction, the intention to revoke the will and the same must be actually injured. In Re Adams (dec’d), the signatures on a will were so effectively obliterated by overscoring with a pen that it was impossible with the naked eye to see whether they were signatures and if so whose, the will was held to have been revoked.

26.3.2 The testator must be of sound mind at the time of revocation and the burden is on the person setting up revocation to prove that destruction occurred while the testator was of sound mind. Therefore, a will destroyed by mistake or by accident would not be effectively revoked as there is a lack of intent.

26.4 Dependant relative revocation

26.4.1 Revocation may be relative to another disposition which has already been made or is intended to be made, and so dependent thereon that revocation is not intended unless that other disposition takes effect.

Appointment of executors

27 An executor is the person appointed by the will to carry out the administration of his estate in accordance with the provisions of the will.

28 An executor must be at least 21 years of age and with a sound mind. A minor can be appointed as executor but he or she cannot obtain probate until he or she attains the act of 21 years.

29 Where a minor has been appointed as the sole executor, a grant will have to be made to his or her guardian or to such other person as the court thinks fit, for the use and benefit of the minor. When the minor attains his or her majority, the earlier grant will be revoked and a grant of probate will be made to the now adult person. Until that has been done, the appointment of the minor does not operate to transfer to him or her any interest in the property of the deceased or to confer on him or her any powers as executor.

30 Furthermore, a person who suffers from mental or physical incapacity to an extent which renders him or her incapable of managing his or her own affairs cannot act as executor or apply for a grant of probate.

31 Thus, in practice it will be undesirable to appoint minors or persons suffering from incapacity as executors. It is also undesirable to appoint person who are insolvent or who have criminal records or who are resident outside the jurisdiction because the court might exercise its jurisdiction to pass over the person appointed in favour of more suitably qualified individuals.

32 A corporation may also be appointed as executor either alone or jointly with others. If a corporation has been appointed as executor, the charging clause must be checked for approval by the corporation. Otherwise, it is likely that the corporation will refuse to act and will renounce the appointment.

33 Pursuant to section 25 of the Probate and Administration Ordinance, a maximum of 4 executors may be granted probate in respect of the same property.

34 The absence of appointment of executors under the will does not make the will invalid. Section 35 of the Probate and Administration Ordinance provides that where there is no executors appointed under the will or the sole executor appointed under the will refuses to act, letters of administration with the will annexed may be granted to such person(s) as the court thinks fit.

Conclusion

35 The making of a will allows the testator to have his estate administered and distributed in accordance with his wishes and is very useful in estate planning. As the will is a document with legal effect, the legal formalities as stipulated in the Wills Ordinance and Probate and Administration Ordinance must be observed.