You don’t have a will? Seriously!
We discuss who can actually draft a will in Hong Kong…and how it can all go wrong when it’s not done correctly
To kick-start the “Probate Focus Week”, we begin with the basics of discussing how to make a will in Hong Kong. Throughout these five days our articles will guide you through the different elements of administrating an estate in Hong Kong. Today we begin with the fundamentals – drafting a Will.
Let’s be honest, no one looks forward to writing a Will – not even us solicitors!
Nevertheless, having to confront our own mortality for the few hours it takes to draft a will is a vastly superior proposition to dying without one – a situation that can cause extensive legal complications, stress and upset for those left behind, whilst also meaning that your assets might not end up being inherited by whomever you actually wanted to receive them either.
So can literally anyone write a legally binding will in Hong Kong or do you need to consult a solicitor for help? The answer isn’t as straightforward as you might think…
Making a Will in Hong Kong
Will writing is something of an anomaly in the legal system, in that it is one of the few legal documents that can be drafted by an “unqualified person” – basically absolutely anyone, regardless if you’re a solicitor or not. As long as the will is properly executed, it should be legally binding.
However, that is a lot easier said than done. There are many tricky areas to navigate when it comes to writing a will – for example, there might be tax or financial matters that impact your estate and the assets you intend on bequeathing, or jurisdictional issues that you simply aren’t aware of (a particular concern for expats in Hong Kong).
Realistically, only qualified solicitors in Hong Kong are well versed in the elaborate ins and outs of Hong Kong law and can advise you properly about those potential issues. If you do end up overlooking something important or getting things wrong in your will, it could cause all manner of legal complications for the administration of your estate and your intended benefactors when you pass away… and obviously, you won’t be around anymore to help clarify any misunderstandings!
Potential Pitfalls of Making a Will Without Legal Advice
So what can go wrong? Take, for example, the case of a man who was married with dependent children. He was the sole breadwinner of the family; his wife had not worked for the past 15 years in order to bring up their children. For whatever reason, he had disinherited his wife from his will; both husband and wife wanted to ensure his estate would benefit his children when he died.
However, this means his wife has no immediate income or means of financial support once he passes away. As her husband did not bequeath her any of his assets (provided he had no life insurance policy with her as the beneficiary either), she currently has no way of paying the bills or feeding herself and her family.
Thankfully, there is legal recourse in this situation. Hong Kong’s Inheritance (Provision for Family and Dependents) Ordinance explains that the deceased’s wife can make an application to the court for an order, on the grounds that “the disposition of the deceased’s estate effected by his will… is not such as to make reasonable financial provision for the applicant”.
Even so, this process can be lengthy, costly and stressful – not ideal when you are already mourning the loss of a loved one. If the man had just taken some basic legal advice when he was alive, he could have drafted a will that ensured his beneficiaries would not have to become subject to litigation in the first place.
The above is only one example of something seemingly simple that can go badly awry. The bottom line is that whilst anyone can write a will, there is no guarantee it will be a good one – and it really only is solicitors that can offer accurate legal advice where needed!
If you require any help or information about making or amending a will, contact one of Hugill & Ip’s experienced team of solicitors today for a complimentary consultation.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.