11. The allocation of estate has been clearly set out in a Will. Can this prevent all the disputes which may come out during the distribution process?

11. The allocation of estate has been clearly set out in a Will. Can this prevent all the disputes which may come out during the distribution process?

One of the main functions of a Will is to provide instructions for distributing the estate according to the intention of the testator (person making the Will, i.e. the deceased). Even if the intention of the testator is clearly stated in the Will, it may still be challenged.

For example, someone who could be a beneficiary under intestacy, or who is not satisfied with his share of the estate under the deceased's Will, could claim that the Will is invalid on the basis that the deceased did not have the mental capacity to make the Will, or was unduly influenced by a third party in making the Will. Any aggrieved party may bring legal action against the executor to contest the validity of the deceased's Will.

A man could have made a Will that left everything to his legitimate children with no provision for his surviving wife or illegitimate child whom he had been maintaining before his death. Under such circumstances, the surviving spouse could make a claim for a share of the estate, and the illegitimate child could claim for maintenance to be provided for him out of the estate pursuant to the Inheritance (Provision for Family and Dependants) Ordinance. Whilst the law in Hong Kong confers absolute testamentary freedom on individuals, it also recognizes the need for an individual to make financial provisions from his estate for his spouse and those who had been dependent on him financially during his lifetime. For more details on the matter, please refer to the relevant question and answer.

To a lesser extent, other practical difficulties may arise. An old lady stated in her Will that her diamond necklace is to be left to her granddaughter. This necklace could not be found in the old lady's home or safe deposit box after her death. Usually the executor is a member of the family or a close and trusted friend of the whole family. How can this executor balance his/her duty to make the requisite inquiries on behalf of the granddaughter and yet maintain a harmonious relationship with the deceased's other family members?

An executor who does not wish to prove the Will personally for whatever reason (e.g. awkward family relationships or time constraints), could appoint a Hong Kong registered trust company to take out a Grant of Representation on his/her behalf, subject to the consent of the beneficiaries of the Will.