1. What are the requirements for a valid will?

1. What are the requirements for a valid will?

Formalities

The legal requirements are provided in s.5(1) of Wills Ordinance (Cap. 30):

1. It must be typewritten, handwritten or in any form of printing;
2. It must have the testator’s signature (e.g. inked thumbprint, initials, stamped signature, mark of any shape, a name) or by some other person in his presence and by his direction;
3. The testator must intend to give effect to the will by his signature;
4. The testator’s signature or acknowledgment of his signature must be witnessed by at least two people at the same time; and
5. each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness). While no form of attestation is required, it is usually advisable to insert an attestation clause in the will.

The will can be written in any languages.

Intention and Capacity

For a will to be valid, a testator needs to show two things: 

1. his intention that the will takes effect upon his death; and
2. his capacity when he made the will.

A testator can normally show his intention by:

1. starting the will with the words “This is the Last Will and Testament of [the testator’s name]”; or
2. hiring a solicitor to make the will.

If you are i) blind or ii) unable to read or write or iii) have authorised someone else to sign the will on your behalf, you need to show that you knew and approved the content of the will at the time of signing.  One way to show it is to have someone read the will to you and have at least two witnesses witness the process. Also, your will should contain a statement confirming that:

1. the document was read to you in the joint presence of all witnesses;
2. you appeared to comprehend and fully approve its contents; and
3. the witnesses signed the will to acknowledge that this was your last will and confirm their capacity as witnesses in your presence at your request.

A testator can normally show his capacity if: 

1. he is 18 years old or above when he signs the will; and
2. he has the mental capacity to know and agree to the content when he signs the will.

In most cases, there is an assumption that a testator has the necessary mental capacity to make his will and there is no need to provide evidence of it. 

However, if a testator were a) mentally ill or b) extremely ill and were under medication, he needs to prove that he was conscious for a period such that he knew and agreed to the content of the will when the will was signed. Proving this can be extremely difficult. Typically, the Court requires evidence that at least one medical practitioner has examined and confirmed the ill testator’s mental capacity before signing the will, and has witnessed the process. A consultation with a solicitor is advised in these circumstances.

A will may be challenged if it was executed as a result to fraud or undue influence.

The Court may find that the will was invalid on the ground of undue influence if a testator was coerced into executing a will to which he does not desire because of one’s (1) pressure amounting to compulsion of the will of the testator, and (2) the conduct in exerting the pressure is illegitimate. For instance, the testator executed the will under threats. 

However, those who allege must prove and the Court requires evidence of such undue influence or coercion, rather than speculation of what the testator had or had not done or should or should not do.

Where the testator executed a will that he did not know or approve because of one’s deceptive behaviour, the Court may find that the will was invalid on the ground of fraud.  For instance, false representation was made to the testator and relied by the testator to execute the will, clauses were inserted in the will before it is signed without the testator’s knowledge.