Probate Focus Week: Sound Mind, Strong Will!

Probate Focus Week: Sound Mind, Strong Will!

Probate Focus Week: Sound Mind, Strong Will! 1599 900 Alfred Ip
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Common Grounds of Contesting Wills in Hong Kong: Testator’s Mental Capacity

We explore what constitutes a testator’s mental capacity, and how it can be legally proven in their will

Previously, we outlined who can become an Executor and the responsibilities required of them, these duties include the management of the estate and distribution of the assets according to the will. A professional administrator may also be appointed. Before appointment, the executor must prepare the necessary documentation (i.e death certificate) and an oath will be sworn to ensure the responsibilities are carried out by them. Once completed the grant of probate will be administered.

After discussing the administrator yesterday, today we will move onto the testator and the capacity required when making a will.

In Hong Kong, we are lucky to enjoy testamentary freedom – namely that we have the complete freedom to dispose of our property wherever and to whomever we wish.

Nevertheless, there are still plenty of situations where wills can be contested in Hong Kong, including one of the most common issues us lawyers are asked about: whether a testator is viewed as being mentally capable of making their will.

What Constitutes the Testator’s Mental Capacity

The current law regarding a testator’s mental capacity has endured for over a century, and stems from the landmark English court case of Banks v Goodfellow (1870). It states that a testator must possess the necessary “intellectual and moral faculties” at the time of a will’s execution – what we would commonly term as being “of sound mind”.

This means that they must:

  1. Understand the nature of the act of making a will, and its effects
  2. Understand the extent of the property of which they are disposing
  3. Be able to comprehend and appreciate the claims effected by their will
  4. Have no mental disorder that will “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”

However, it is worth stressing that this does not mean that just because someone has lost the capacity to make decisions in other areas of their life, they are then viewed as automatically incapable of making their will. In the eyes of the law, as long as the testator’s mind and memory is deemed sufficiently sound at the time of the will’s execution – that they knew and understood the act of making the will whilst they were doing it – that is enough.

How Can the Testator’s Mental Capacity Be Proved?

Proving a testator’s mental capacity is a complex issue – and failure to do so properly can lead to extensive and expensive litigation afterwards.

The last thing any family wants is to face a lengthy legal battle having just lost a loved one. If you can envisage there being any suspicion regarding a testator’s mental capacity (for instance, due to their age or a history of illness), we would always advise that you utilise the services of a professional solicitor who is experienced in estate planning to prepare the will, rather than attempting to DIY affairs with an off-the-shelf template.

In these cases, you must ensure that your solicitor follows the “Golden Rule” when drafting a person’s will, as this is the safest way of avoiding potential disputes in the future.

This means that when preparing and executing the will of an aged testator, or one who has been seriously ill, your solicitor should arrange for a doctor to make a written report stating that they are satisfied that the testator is of a sound mental capacity and understands the will’s effects. At the same time, your solicitor should also make an attendance note that specifically records the doctor’s examinations and findings during the drafting of the will.

The vital importance of the “Golden Rule” is best illustrated by the case of Key v Key (2010). In that instance, the solicitor failed to make an attendance note when the will was drafted – and as a result, the will was completely revoked by the court due to lack of testamentary capacity.

Also, unlike countries such as the UK which has its own separate Mental Capacity Act, Hong Kong has no equivalent ordinance – meaning it’s all the more important to ensure your solicitor gets everything right regarding testator capacity.

As you can see, testator’s mental capacity is an incredibly complicated issue – and what we’ve discussed is only the tip of the iceberg! For more advice on this area, get in touch with our team of solicitors here.

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.


Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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