By Scherzade Burden,Foreign Qualified Lawyer
Making a Will in Hong Kong
Time to face the music and make a Will
Let’s be honest, no one really wants to have to make a Will because it has everything to do with those two certainties in life we all wish to avoid: death and taxes.
But, any prudent or commercially savvy person will realise that it is better to make a Will and contemplate their mortality, than not make one.
Once you face the fact it’s time to make a Will, you’re then faced with the challenge of choosing a service provider. You can actually do this yourself of course, but there are good reasons why you may need a professional’s assistance.
How to Make a Will
Will writing is an anomaly in that it is a legal document which can be drafted by an unqualified person. The Legal Practitioners’ Ordinance (LPO) defines an “unqualified person” as “a person who is not a solicitor”. Section 47 of the LPO also says that whilst an unqualified person must not prepare certain documents, one of the exempted documents is a Will.
So in other words anyone can write a Will and provided it is properly executed, should be legally binding.
However, there are many pitfalls involved in Will writing because it should form only part of your Estate Planning, which may include taking advice on tax issues and financial planning. There may be jurisdictional issues you are not aware, particularly if you are an expat in Hong Kong.
The bottom line is this: unless someone in Hong Kong is a Solicitor qualified in this jurisdiction, then they cannot give legal advice on matters of Hong Kong law. This means that should there be complications in relation to your Estate Planning, and you unwittingly make a Will without seeking advice, this may result in an adverse situation for those who are carrying out the Administration of your Estate and for those who are supposed to benefit from your Estate.
Take for example the case of a man, married with dependent children. His wife, unwittingly, does not realise the man has disinherited her in his Will for whatever reason and just wanted to ensure that his estate after he passed away benefitted his children. The wife does not work and has not worked for the past 15 years as she has been bringing up the children of the marriage.
This man did not take legal advice in relation to the writing of his Will in which he disinherited his wife.
There is a great risk of litigation in such a situation, as the wife, assuming there is no life insurance policy of which she is the beneficiary, will now have no income as her financial support has died. How will she pay for the rent, the bills, how will she feed and clothe herself?
Naturally, there must be a remedy for the wife in this situation, which is found under the Inheritance (Provision for Family and Dependents) Ordinance in section 3(1). This explains that the wife of the deceased may make an application to the Court for an order on the ground that “the disposition of the deceased’s estate effected by his will… is not such as to make reasonable financial provision for the applicant”.
Had this man taken some basic legal advice, he could have ensured that his beneficiaries did not have to become subject to litigation, an often costly and protracted process.
The above is only one of the many examples but these will follow in subsequent issues.
To conclude this first issue, you can instruct any professional to write your Will but bear in mind that they won’t be able to give you legal advice as such.
The Private Client department at OLN can provide a bespoke service to you if that is what you are after, or, if you just need a quick holdover Will or something very basic as it is the first time you’re addressing the issue, we can do that too.
We always offer a complimentary first meeting on how to make a Will so contact one of the team if you’d like to discuss further.
OLN Estate Planning Team