Testamentary Capacity under the Laws of Hong Kong
Applicable under the Hong Kong law, Banks v Goodfellow (1870) LR 5 QB laid down the law as to testamentary capacity. According to the rule established in that case, to ensure the testator’s testamentary capacity, testator need to be (a) capable of understanding the nature of the act of making the Will and its effects; (b) capable of understanding the extent of the property of which he was disposing; and (c) able to comprehend and appreciate the claims to which he ought to give effect. The rule is said to be “golden rule” of a testator’s testamentary capacity.
Guidance to Solicitors in Making a Will for Clients in Hong Kong
In Au Kong Tim (FACV No. 47 of 2018), the Court of Final Appeal confirmed the guidance given by the Court of Appeal. According to that Guidance,
“In view of the importance that the Court attaches to a will which has been executed before a solicitor in this way, proper groundwork should be undertaken by the solicitor who is charged with this task. The solicitor should not regard the task as merely a formal act. Although in Hong Kong instructions to prepare a will may often be given by the adult children of the testator who is elderly and not in good health, it behaves the solicitor who wishes to discharge his duty properly to meet the testator personally for the purpose of taking instructions or confirming the instructions. He should do this well before the day appointed for the execution of the will which by then is already prepared on the instruction given by someone other than the testator.
The enquiries made by the solicitor at such an appointment should, subject to the circumstances of each case, include the following, namely,
1) the age of the testator,
2) his health condition,
3) whether he has a surviving spouse,
4) the number of children and grandchildren he has,
5) whether there is someone other than his immediate family member dependent on him for support,
6) the beneficiaries he would like to provide for in his will,
7) his properties,
8) whether he has made a previous will,
9) whether he understands the new will will revoke the previous will,
10) whether he understands the difference between the new and the previous will.”
How can a Solicitor ensure the Testator’s Testamentary Capacity?
(1) A Solicitor can meet the testator one or several times to make sure a testator’s testamentary capacity, or to take other precautions to ensure the testator’s testamentary capacity.
According to the rule established by the Hong Kong case law, if a Will was prepared by a qualified and experienced solicitor after taking instructions in a conference, unless there is contrary evidence, the court would usually incline to trust that the solicitor has exercised reasonable judgment to make sure the testator’s mental capacity is suitable to make a Will.
“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”
(2) To engage a doctor to examine a testator’s mental condition if the testator has testamentary capacity
When a solicitor has initial doubts on the testator’s testamentary capacity, or is in the view that someone would in future challenge the validity of the Will due to the testator’s testamentary capacity, he shall seek the assistance of a doctor to evaluate the testator’s mental condition.
- The Solicitor shall mention the standard established in Banks v Goodfellow (1870) LR 5 QB.
- The Solicitor shall provide relevant information to the doctor such as the proposed content of the Will , the main property, any revocation of previous Wills, and whether to exclude the succession rights of any beneficiary.
- The Solicitor shall obtain a medical report issued by the doctor on the testator’s mental condition, for use of any future dispute.
(3) To be more persuasive in ensuring the testator’s testamentary capacity by keeping remakes and record to the testator’s explanation of special situation (for example, the reason to exclude the succession rights of any beneficiary, the reason of revocation of the previous Wills)
For any enquiries on a making a Will in Hong Kong, please contact us, the inheritance and probate team of Yan Lawyers.