Wills and intestacy

Wills and intestacy

[This section only covers statutory wills. For more about wills and intestacy, especially about capacity to execute wills, please see below section on “Capacity - Civil”.]

Once a person becomes mentally incapacitated, they no longer have the requisite testamentary capacity to execute a will. 

In such situations, the court can exercise its discretion to decide whether to approve the committee to execute a statutory will on behalf of the mentally incapacitated person (MIP) under section 10A(1)(c), section 10B(1)(e) and section 10C of the Mental Health Ordinance. 

When deciding the contents of the statutory will, the court proceeds to determine what the proper contents of the will should be. The court must seek to make the will which the actual MIP, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight and with sound legal advice available. The court is guided by the following principles: 

1. The MIP should be assumed to have a brief lucid interval at the time when the will is made. 
2. During the lucid interval, the MIP has full knowledge of the past, and a full realisation that as soon as the will is executed he will relapse into the actual mental state that previously existed, with the prognosis as it actually is.
3. It is the actual MIP who has to be considered and not a hypothetical one.
4. The MIP is to be envisaged as being advised by competent solicitors.
5. The MIP is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant’s pen.

When applying the above 5 principles, the court objectively looks at the evidence before her, to decide whether to sanction a statutory will. 

(See recent case: Re CVD [2025] HKCFI 4647)