Three Instruments of Peace: Understanding Wills

What is a Will?

At the final stage of life, there are different ways to leave assets to family members. One common and effective method is making a will.

A will is a legally binding document that clearly sets out how a person’s assets should be distributed and handled after their death.

Who Can Make a Will?

Anyone aged 18 or above who has the mental capacity to understand and agree to the contents of the will may make a will.

Benefits of Making a Will

By making a will, the testator can:

1. Decide how assets are distributed

   Assets can be distributed according to personal wishes, rather than under intestacy laws. This means the testator can leave assets to people with no blood relation, such as friends or charities.

2. Appoint an executor

   The executor is responsible for carrying out the will, managing, and distributing the  estate to ensure the testator’s wishes are fulfilled.

3. Appoint a guardian for minor children

   Guardians can be designated for children under 18 to ensure proper care arrangements in the future.

Legal Format and Requirements of a Will

According to Section 5(1) of the Wills Ordinance (Cap. 30), a will must meet the following requirements to be valid:

1. Formal Requirements

• Must be in writing (oral wills are generally invalid).
• Must be signed personally by the testator, or by another person in the testator’s presence and at their direction

2. Witness Requirements

• At least two witnesses must be present at the same time during the signing.
• Witnesses must have visual ability, be of sound mind, and preferably be at least 18 years old.
• Witnesses and their spouses cannot be beneficiaries of the estate.
• Each witness must sign the will in the presence of the testator, or acknowledge their signature in the testator’s presence.
• Although the law does not require a specific form of attestation, wills usually include an attestation clause.

3. Two Key Conditions for a Valid Will

In addition to the above, at the time of signing, the testator must:
i.    Clearly state that the will takes effect upon their death.
ii.    Possess sufficient mental capacity.

Recommendations for Special Circumstances

If the testator suffers from mental illness or is under medication due to serious illness, it is advisable to:

• Consult a doctor first to ensure mental capacity is not impaired.
• Ideally sign the will in the presence of a doctor to avoid future disputes.

Can a Will Be Written Personally?

Yes. A testator may draft their own will, provided its content and format comply with Section 5 of the Wills Ordinance. However, if a will is declared invalid, the court will first check whether the deceased had previously made a valid will:

• If yes, that will is treated as the last valid will.
• If no, the estate will be handled as intestacy under the Intestates’ Estates Ordinance (Cap. 73).

Therefore, for wills involving complex matters or substantial assets, it is recommended to seek professional legal assistance to ensure validity.

Learn More

For further information, you may visit the Community Legal Information Centre’s “Probate” section, or watch the related animated video series.