Raymond T. L. Tse & Co. 謝天良律師行                                                  [Eng英文] [ 繁體中文] [ 间体中文]

                                               

HOW TO MAKE A VALID WILL  ?

 

FAQs Suggestion
When should I make a Will ? It is advisable to make a Will if  :-
  • you are over the age of 18 years; 
  • you have valuable properties/assets registered in your own name; 
  • you have spouse and/or children but you want to make specific gifts to some of them; or
  • you would soon embark on hazardous activities/work or you have now been engaging in such activities/work.
How should I start preparing a Will ?
  • Consult your lawyer.
  • Copy documents of identities :-IDs/passports of yourself, Executor/Executrix, Guardian (to take care of minors) & Beneficiaries. Their addresses and contact phone numbers will be useful but not essential
  • Copy documentary proof of your important properties/assets (eg. house, fixed deposits etc)
  • If you wish to sign the Will outside lawyer's office outside office hours, find an independent witness (who should not be one of the Beneficiaries or his/her spouse).
Do I have to find a doctor before I sign the Will ?
  • You must have the necessary testamentary capacity and intent when you sign the Will.
  • Generally a doctor is not required to be present unless you propose to sign the Will inside a hospital or unless you have an illness relating to the mind/brain.
Do I have to make provision for the house which is registered in joint names ?
  • If the house is registered as joint tenants, then you do not need to make provision in the Will for this house, since the house will be passed to the surviving joint tenant under the law of survivorship.
  • If the house is registered as tenants-in-common, then your own share in this house will be passed under your Will to whomever beneficiary(ies) named by you in the Will.
  • If you are uncertain as to the nature of ownership of the house, consult your lawyer & conduct a full land search.
Do I have to revise & make another Will later ?
  • A Will only takes effect upon death and if you do nothing, it will be effective upon death.
  • If after making a Will, you marry, then the Will (made before marriage)  is revoked upon your marriage. You must therefore make a fresh Will.
  • A Will can be revoked from time to time. If circumstances have changed such that you wish to make new gifts or to revise the gifts, then you should make a fresh Will/Codicil. 
  • Please note that a later Will usually revokes all previous Wills. You must be careful whether you want to revoke all previous Will(s) and make a completely new Will.
  • If one loses mental capacity to such an extent that one no longer understands what one is doing, then the  Will (made before loss of mental capacity) cannot be revised/revoked any further and it will stand as one's last Will.

Can I make a Will without a lawyer ?

  • Theoretically you can make a home-made Will yourself if you clearly know the succession law and you have 2 qualified witnesses to attest your Will appropriately.

  • But the case law has become very complicated that you should avoid doing a home-made Will, since a home-made Will may be declared by the court as invalid. 

  • If anything goes wrong (signatures at the wrong place and/or wrong time), no one can speak on your behalf at the very critical moment (usually in  court when the validity of a Will is challenged).

  • By the way, legal fees for preparing a formal Will is relatively small when compared to the size & importance of your total wealth.

What happens if a Will is declared to be invalid ?

  • If there is a previous Will, that previous Will may be declared as the last Will (assuming that it can be successfully proved in court).

  • If there is no other Will, then the estate is devolved under  intestacy (ie as if no Will has been made at all). Provisions as to distribution and priorities can be found in the Intestates' Estates Ordinance, Cap. 73 of the Laws of HK.

  • If there is no valid Will and if no one qualifies as a beneficiary under the intestacy, then the estate will go to the Government's Treasury.

 

If you have any enquiries, please 

  • telephone our Mr. Raymond Tse at Tel (852) 2521 2711

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