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
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;
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:
Understand the nature of the act (making a Will) and its
Understand the extent of the property of which he is
Be able to comprehend and appreciate the claims to which he
ought to give effect;
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
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
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  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result, the Will was revoked by the court on the ground of lack of
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
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.
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