Wills and Testamentary Drafting in Hong Kong

A will is the principal legal instrument by which an individual directs the devolution of his or her estate upon death. Its testamentary purpose is twofold: to displace the default statutory distribution under the Intestates’ Estates Ordinance (Cap. 73), and to nominate executors who will be entrusted with collecting, administering and distributing the estate. Because a will speaks from death and cannot be corrected once the testator has passed, the formal requirements of the Wills Ordinance (Cap. 30) must be observed without deviation. This article addresses the statutory framework governing will writing in Hong Kong and the practical considerations that arise in making a will here.

Statutory Framework

The principal legislation is the Wills Ordinance (Cap. 30), which prescribes the formal requirements for execution, the minimum age and capacity of a testator, the consequences of attestation by an interested witness, the circumstances in which a will is revoked, and the effect of marriage and divorce on prior testamentary dispositions. The Ordinance must be read together with the Probate and Administration Ordinance (Cap. 10), which governs the grant of probate, and the Intestates’ Estates Ordinance (Cap. 73), which applies in default of a valid will. Where a will creates trusts, the powers and duties of trustees are further regulated by the Trustee Ordinance (Cap. 29).

Formal Requirements

Under section 5 of the Wills Ordinance, no will is valid unless: (a) it is in writing; (b) it is signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; (c) such signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) those witnesses attest and subscribe the will in the presence of the testator. The requirement that the witnesses be present at the same time is a substantive condition: simultaneous attendance during the testator’s signature or acknowledgement is essential, and sequential witnessing will render the instrument vulnerable to challenge. In practice, this practice supervises the execution ceremony in person and appends a formal attestation clause confirming that the statutory formalities have been observed, which raises a rebuttable presumption of due execution before the Probate Registry.

Testamentary Capacity

A testator must have attained the age of 18 years under section 4 of the Wills Ordinance, and must possess testamentary capacity at the time the will is executed. The common-law test is that laid down in Banks v Goodfellow(1870) LR 5 QB 549: the testator must understand (i) the nature of the act of making a will and its effects; (ii) the extent of the property of which he is disposing; and (iii) the claims to which he ought to give effect, and no disorder of the mind must poison his affections or pervert his sense of right. Where the testator is elderly, gravely ill or otherwise of doubtful capacity, this practice ordinarily follows the “golden rule” by arranging a contemporaneous capacity assessment by a registered medical practitioner, with a written opinion retained on file for evidential purposes.

Witness Restrictions

Under section 10 of the Wills Ordinance, any beneficial gift to a person who attests the will, or to the spouse of such a person, is void. The will itself, however, remains valid: only the offending disposition fails, and the subject-matter of the failed gift will pass under any residuary disposition or, failing that, on a partial intestacy. The rule operates as a prophylactic against undue influence by those who are in a position to procure execution. The implication for the testator is straightforward — neither beneficiaries nor their spouses should be invited to witness the instrument. In practice, witnessing is conducted by solicitors and unrelated staff of the firm, none of whom takes any benefit under the will.

Revocation

Under section 13 of the Wills Ordinance, the marriage of the testator automatically revokes any prior will, unless the will was expressed to be made in contemplation of that particular marriage. A will may otherwise be revoked by physical destruction with the intention of revocation, or by a subsequent will or codicil containing an express revocation clause or making dispositions that are inconsistent with the earlier instrument. On divorce or judicial annulment, the Ordinance provides that the appointment of the former spouse as executor or trustee, and any gift to the former spouse, are generally treated as if the former spouse had predeceased the testator; the remainder of the will continues to take effect.

Testamentary Trusts

Where a beneficiary is a minor (under 18 in Hong Kong), or where the testator wishes to defer outright vesting beyond the age of majority, the will should constitute a testamentary trust under which the executors (or separately appointed trustees) hold the relevant property until the contingency specified is satisfied. Careful drafting is required in respect of the trustees’ powers of investment, advancement and maintenance, the treatment of accumulated income, and the inclusion of gift-over provisions to deal with the failure of any primary interest. Where a beneficiary suffers from mental incapacity or physical disability, a fully discretionary trust is generally preferable to an absolute interest, both for asset-protection reasons and to preserve eligibility for means-tested public assistance.

Foreign-Situated Assets

Where the testator holds assets outside Hong Kong, the private international law doctrine of lex situsassumes practical importance. The succession of immovable property is governed by the law of the place where the property is situated; movable property is generally governed by the law of the testator’s domicile at the date of death. A will executed in Hong Kong will not necessarily be recognised by the courts of every jurisdiction in which the testator holds property, and a number of civil-law jurisdictions impose forced-heirship regimes that restrict the testator’s freedom of disposition. The customary practice is either to execute concurrent wills in each relevant jurisdiction, each carefully limited to assets situated in that jurisdiction and containing a revocation clause that does not disturb the others, or to procure a single, professionally drafted will which expressly accommodates the conflict-of-laws considerations.

Practical Considerations

Several practical considerations attend the making of a will in Hong Kong. The cost of making a will varies according to complexity: a straightforward will disposing of Hong Kong assets to a small number of named beneficiaries is at the lower end, whereas wills involving testamentary trusts, multiple jurisdictions or business interests will command higher fees. The original instrument should be retained in secure custodial storage — most solicitors offer safe-keeping of will originals without separate charge, providing the client and the named executors with copies for their records — so that the Probate Registry need not be asked to entertain an application for proof of a lost will. The choice of executor warrants careful thought: the office is fiduciary in nature and may extend over many months, and a prudent testator will appoint at least one substitute. Finally, a will should be reviewed at intervals of no more than three to five years, and immediately upon any material change in family circumstances or in the composition of the estate. Minor amendments may be effected by codicil; substantial revisions are better dealt with by a fresh will expressly revoking all prior testamentary dispositions.