Wills and intestacy

Wills and intestacy

The following requirements are required for a will to be valid:

• the person making the will is over 18 years old (or, if under 18, married, or in active navy/army/air force service): Wills Ordinance (Cap. 30), section 4.
• the will is in writing, signed by the person making the will, and signed by two witnesses in the presence of the person making the will; 
• possess testamentary capacity (i.e. the mental capacity to execute a will).

The test for whether a person possesses testamentary capacity is set out in Banks v Goodfellow (1870) LR 5 QB 549 (applied in Hong Kong subsequently, most notably in In the Estate of Au Kong Tim [2018] 2 HKLRD 864 (CA)), that the person must: 

1. understand the nature of the acts and effects;
2. understand the extent of the property of which he is disposing;
3. be able to comprehend and appreciate the claims to which he ought to give effect; and
4. not have disorder of mind that would poison his affection, pervert his sense of right or prevent the exercise of his natural facilities.

In addition, the court will also consider:

• the overall rationality of a will: it is an important indicator of testamentary capacity;
• whether the will was prepared by an independent and experienced solicitor, or other persons. 

If an MIP lack testamentary capacity, he cannot make a will. Because of this, if a will is to be made on their behalf, this must be done as a statutory will under Part II of the Mental Health Ordinance (Cap. 136). Specifically, an application must be made to court, which has the power to make orders to execute a will for the MIP where it is satisfied the person is incapable of making a valid will for themselves. This would generally be done through the committee appointed to manage the property and affairs of the mentally incapacitated person under Part II of the Mental Health Ordinance (Cap. 136).

MIPs are disqualified from acting as Administrators or Executors of an estate. 

In relation to intestacy, if a person entitled to a grant is, by reason of mental incapacity, incapable of managing his or her own property and affairs, the court may issue a limited grant to the Administrators to maintain and benefit the MIP: Non-Contentious Probate Rules, rule 33 and Lamb Shen Chuen & Anor v Lam Wai Tak [2009] 2 HKLRD 406. Such limited grant expires upon the death of the MIP.