In recent years, one of the main issues facing the Probate Registry has been the steady increase of ‘DIY Wills’. There are a number of ways to create a Will.
Most people will either instruct a solicitor specialised in Estate Planning on their behalf. Alternatively, people may make a homemade version using an online tool or general template. Making a Will at home seems to be the most affordable option, but the lack of professional guidance can lead to ambiguities rendering many Wills invalid, or – even worse – leading to future estate litigations which end up costing time and significant expenses.
Over the years we have come across a number of homemade Wills, as a result we have seen a series of horror contentious stories that could have been easily avoided through appropriate and professional advice.
In cases where the homemade Will has an ambiguous meaning, the Court might ultimately have to determine the outcome for the beneficiaries. The primary objective when determining the distribution of the estate would be to ascertain what the deceased originally intended when writing the Will. This is a risky position, in fact the Court’s judgement could significantly differ from the intentions of the deceased.
Several of our clients have encountered difficulties that include the circumstances highlighted here below.
Often people write a suicide note before taking their own life, some contain final wishes regarding assets. The question is, can a suicide note can be deemed as a Will?
Many suicide notes are scribbled by the deceased during a moment of extreme distress. On the assumption that the handwriting can be attributed to the deceased, there is a potential argument that their suicide note can be regarded as a testamentary disposition under s5(2) of the Wills Ordinance, Cap. 30.
However, it is unlikely that a suicide note will be proved as a Will and a Court Order must be sought before it can be probated. Potential disputes over who should be administering the estate, since most suicide notes do not contain any appointment of executor, are also a likely outcome.
Another common problem is due execution of the homemade Will. Under Hong Kong laws, a Will must be in writing and signed before two witnesses. Often such requirements are not observed in a homemade Will: usually, either the signature of the testator was not witnessed or only witnessed by one person.
While s5(2) of the Wills Ordinance may still be invoked and prove the Will, in many circumstances the major problems lie with the status of the witness, who is often a close family member and/or named as a beneficiary of the Will.
S10(1) of the Wills Ordinance prevents any witness of a Will or the witness’s spouse from becoming a beneficiary of that Will. This does not lead to the Will becoming void and the entitlement of other beneficiaries won’t be affected. However, the witness beneficiary could be the testator’s own close relative or friend and may have no entitlement to the estate left as a result.
Another potential problem is that the execution does not conform with the laws of the place where the deceased domiciled, rendering the Will invalid or unenforceable. There are different requirements in different countries and the laws are extremely strict and precise. At times Wills are not executed in accordance with such requirements, hence they become unenforceable and cannot be salvaged.
Finally, although a solicitor witnessing a Will is not mandatory in giving it effect, there are distinct advantages in having the Will attested by a professional solicitor. A professional solicitor will make the proper file records to ensure that the testator understands the contents of the Will, intends to give effect to it and that the Will was not made subject to any duress or undue influence.
Homemade Wills are often drafted by individuals who are not skilled at drafting Wills. For example, a person may not be trained to draft a Will to leave a specific gift to a beneficiary, rendering a certain gift unenforceable or potentially disputable.
A typical example would be a person appointing his/her spouse to handle all estate matters on his/her behalf. Is the spouse entitled to the estate, or is he/she only entitled to handle the estate? If he/she is only entitled to handle the estate, who should the beneficiary be?
Another example is a person gifting 25% of his/her estate to Alan, Boris and Clement. What if Alan cannot be found, or he does not wish to receive the estate? Would Boris and Clement be entitled to take Alan’s share? Or would Alan’s share of the estate to be distributed in accordance with the intestacy rules?
On the appointment of an executor, we have often come across the following situations:
- “I appoint Alan and Boris as executors of my Will jointly or severally.” The question is whether it was the testator’s wishes to appoint Alan and Boris as executors jointly or severally? The Court would require an additional affidavit to explain the circumstances pertaining to the drafting or execution of the Will in order to ascertain the testator’s true intention.
- We have also encountered wishes to set aside a certain amount for a particular purpose such as ancestral worship. For instance, those who embrace traditional Chinese values and want to incentivise descendants to visit the grave with their family members twice a year – e.g. during festivals like Ching Ming and Chung Yeung. A clause as such should be drafted by a professional Trust and Estate lawyer to ensure its enforceability.
We have many clients who want to leave the majority of their valuable real estate to their descendants, but they do not wish them to liquidate and distribute the assets. Their genuine wish is to hold the family together and look after the descendants with the rental income generated by the real estate properties. However, there are a lot of potential difficulties with such an arrangement, as it is in effect creating a Trust for the descendants. Such a Trust must be carefully drafted in order to confirm the persons who would be entitled to dividends, the duration of the Trust and the person who would be responsible to look after the properties. Looking after properties may involve paying for expenses, finding tenants, regularly providing reports/account statements to the beneficiaries, filing tax returns and other ongoing obligations. The executor is often a family member who does not have real property management experience and he/she cannot charge a remuneration unless it is specified in the Will. Professional advice should be sought in this respect, otherwise a very complicated and convoluted clause would unlikely be enforceable.
Homemade Wills often present more problems than solutions. Even the most carefully considered Will cannot guarantee that harmony will prevail amongst loved ones – professional drafting can make a huge difference. Will drafting should always been done properly by professional lawyers with specific experience in Estate Planning. It should not be a painful or expensive process. A professionally drafted Will can save the family’s time, costs and grievances in the succession process.
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.
Originally published on Expat Briefing