Common Grounds to Contest a Will

Although people in Hong Kong enjoys testamentary freedom (i.e "absolute freedom" in the disposal of their property), there are situations where a Will can be contested.  For example,

  • the Will has not been signed or witnessed properly;
  • the testator was mentally incapable to make the Will;
  • the testator had no knowledge of or had not approved the contents of the Will;
  • the testator was under undue influence to make the Will; and
  • Forgery

Here we will focus on the ground where the testator's mental capacity is being challenged.

Mental Capacity of the Testator

The law in respect of testamentary capacity is laid down in the long established English case of Banks v Goodfellow (1870), L.R.5Q.B.549.  A testator must at the time of executing a Will to possess the necessary intellectual and moral faculties.  He must:

  1. Understand the nature of the act (making a Will) and its 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;
  4. No disorder of the testator's mind which will "poison his affections, pervert his sense of right... or his will in disposing of his property and bring about a disposal of it which, if the (testator's) mind had been sound, would not been made."

In terms of the degree of the testator's mental capacity, it is sufficient that as long as the testator's mind and memory is sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the Will.

What can be done?

Where there is suspicion that the testator has mental capacity issue (whether due to age or other reasons), the safest way to eliminate the possibility of a future dispute is for the Will to be drafted by a solicitor who will follow the "Golden Rule".  The "Golden Rule" means that the solicitor involved in the preparation and execution of the Will for an aged testator or one who has been seriously ill should arrange for a doctor to prepare a written report to satisfy himself as to the capacity and understanding of the testator and to make a contemporaneous attendance note that specifically records the doctor's examination and findings.  The importance of a solicitor to follow the "Golden Rule" is illustrated in the Case of Key v Key [2010] WTLR 623.  In that case, the solicitor failed to follow the golden rule by his failure to make an attendance note when the Will was drafted, as a result, the Will was revoked by the court on the ground of lack of testamentary capacity.
Unlike the UK, where there is a Mental Capacity Act, Hong Kong does not have an equivalent Ordinance.

As Mental capacity of the testator is a complicated issue, and failure to address this properly can lead to expensive and extensive litigation afterwards.  In order to avoid any future disputes, it is preferable to instruct a professional solicitor experienced in Estate Planning to prepare a will rather than "Do-It-Yourself".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.