We take a look at everything you need to know about wills, testamentary freedom and the law in Hong Kong, and your rights in the case of disinheritance
For anyone grieving the loss of a parent or spouse, there can be little more painful than learning that you are excluded from their will. Whether they have chosen to bequeath their estate to other family members, or even leave it all to the local animal shelter, unexpected exclusions in a loved one’s will can cause untold pain, and bitter dispute that can divide families for years to come.
Many countries choose to pre-empt such issues with strict laws covering succession and inheritance. One such example is France, where the estate of the deceased is automatically divided equally between their surviving spouse and children. Of course, this can cause untold complications, particularly in larger families, or families in which the beneficiaries may have opposing views on how to dispose of any property.
We have briefly talked about the issue of disinheritance in our previous article “No one has ever become poor by giving” – How to Leave a Legacy by Benefitting Charitable Causes in Your Will to which you can refer by clicking here.
Inheritance Law In Hong Kong
Here in Hong Kong, we have the right to testamentary freedom. Broadly speaking, this means we are all free to leave our estates to anyone we wish – be that a relative, friend, favourite charity… or even a total stranger!
Of course, this freedom can often mean that you, or other surviving relatives, can end up sorely disappointed with the provisions made in your relative’s will, particularly if the disinheritance was unexpected. In this situation, you may seek to mount a legal challenge to overturn the outcome of the will; however, it is important to be prepared for this to be an extremely difficult process.
Contesting A Will
So, what can be done if you perceive a will to be unjust? Hong Kong law allows for a limited number of grounds in which to challenge a will. If, for example, it is suspected that the deceased relative wasn’t of full mental capacity at the time their will was drafted, then you may have grounds to challenge it. However, this is particularly hard to prove, especially in cases where the will was originally drawn up and attested by a lawyer.
Other grounds for contesting a will include fraud, or undue influence on the testator; however, proving this can be extremely complex, and cases can drag on for many years. A good example of this is the much-publicised controversy that followed the death of heiress Nina Wang, who was at that time Asia’s richest woman. Having previously battled her father-in-law in a long-standing legal case over control of her deceased husband’s estate, Wang’s own will became the focus of a protracted legal battle after her death in 2007, when a will bequeathing her fortune to her former Feng Shui consultant was ruled to have contained a forged signature.
Another potentially less costly and complex option is to lodge a claim under the Inheritance (Provision for Family and Dependents) Ordinance, Cap. 481. This ordinance allows for individuals including the deceased’s spouse, children, siblings, or even their legal concubine, to claim “reasonable financial provision” from the estate of the deceased.
It is important to note that any claim must be made within six months of the grant of probate or letters of administration. Of course, all of these situations are highly complex, and so it is important to discuss all possible courses of action in full with your lawyer before proceeding with any claim.
Our team at Hugill & Ip are well versed in Hong Kong’s complex testamentary, probate and estate laws, and can provide a full overview of the options available to you. Get in touch with us for more information on the services we offer.
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.