The Financial Times has reported that the coronavirus pandemic has caused a surge in demand for urgent estate planning advice and Will drafting, especially among the wealthy and elderly. COVID-19 does not discriminate based on wealth and, increasingly, fatalities are being reported for those much younger than 65.
While death remains a taboo subject in Hong Kong, for many COVID-19 has brought the issue to the foreground making people think, perhaps for the first time, about what can be done in advance to ensure that loved ones are protected and provided for if the worst happens.
The core to any estate planning tends to be drafting a Will – or, if you already have one – reviewing the existing Will to ensure that it reflects significant events that may have happened, for example, marriage, the birth of a child, divorce or purchasing a property.
The starting point for most people is contacting their lawyer to arrange a meeting, explain their needs and desires and, a few days later, execute the final document. However, in the current climate, such straightforward measures have become much more complicated. In an effort to reduce the spread of the virus, lawyers are no longer working in their offices and clients might be quarantined meaning they cannot leave their homes – many different questions are being asked:
- A family member has drafted, but not executed their Will. He/she is now in self-isolation. How can we arrange for the Will to be signed and witnessed, keeping in mind the safety issues at hand?
Social-distancing protocols should be maintained to ensure the safety of all parties. Wills can be drafted remotely, with instructions being given via email, phone, or videoconferencing. Draft Wills can be sent to clients by email or other electronic communication platforms (e.g. WhatsApp, WeChat, etc). The execution of the Will can be witnessed by the testator’s own family members. However, it is important to keep in mind that the witnesses and their spouse should not be a beneficiary under the Will, as the gift to the beneficiary under the Will is forfeited if they act as witnesses.
- Can witnesses be present via a video call?
No. In fact, according to the Wills Ordinance, Cap. 30, witnessing of a Will must be done in the presence of the testator. This is for good reason!
Witnesses to a Will must be in a position to confirm that the person who signed the Will is the testator, he or she is fully aware of the contents of the Will and its legal effect, and the Will signed by the testator cannot be tampered with by anyone after it is signed by the testator. Witnesses may socially distance themselves during the preparation, so long as they are all present and have clear sight of the signing process. It is sufficient for the testator and witnesses to be in each other’s line of sight to satisfy the requirement of presence, such as observing through a window.
- An elderly family member with difficulties communicating is in self-isolation. Can I assist them in giving instructions to his/her lawyer over the phone?
Yes, but we would not recommend such practice – particularly if you are likely to be a beneficiary under the Will – because it may result in the Will being challenged in future. Solicitors will also struggle in assessing the testator’s mental capacity and freedom from adverse influence if information is provided via a third person.
If it is unavoidable for instructions to be provided via a third person or intermediary, at the very least the solicitor should arrange to meet with the client in person to confirm the instructions and, potentially, arrange a mental capacity assessment if needed.
- What information should I prepare in advance if I am giving instructions over the telephone?
Prior to giving instructions to your lawyer, you should consider the following:
- Who do you want to be the executor of your Will (i.e. to carry out the terms of your Will)?
- Who do you want to benefit from your Will?
- How will your estate be divided between your beneficiaries?
- Do you have any sentimental or particular items that you want to bequeath to a special person?
- Who will act as trustees of any inheritance you leave to your children?
- For guardians of minor children, or persons under disability – who will act as their new guardian?
We have further outlined the considerations and process of estate planning in our previously published article “Proper Estate Planning: When there is a Will, there is a Way!“.
It is extremely advisable that you seek the guidance of an experienced and reputable private client solicitor to draft your Will, as the threat of future complications will be significantly reduced.
If a Will is drafted using online templates or through an untrusted source, this could create problems and prevent the Will from achieving its desired result. We have had experience of dealing with the aftermath of badly drafted Wills and client’s problems often could have been easily avoided, had their estates been properly planned and their Will’s properly drafted/executed.
Our team at Hugill & Ip has extensive experience in dealing with Hong Kong’s complicated testamentary, probate and inheritance laws – so if you need further advice on these subjects, get in touch with us to find out how we can help.
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.