November 2024
In the recent case of Chiu Mei Cherry v Yip Ngan Yuk & Anor [2024] HKCFI 2824, the Deceased had made 3 wills in 2021, June 2022 and July 2022. The contents of the July 2022 will (“Last Will”) were completely different from the previous ones, naming the Deceased’s extra-marital partner as the sole beneficiary. The validity of the Last Will was contested by the Deceased’s wife and legitimate son, and one of the grounds was that the Last Will was executed without the requisite testamentary capacity.
In assessing the testamentary capacity of an elderly and infirm testator as in the present action, the court reinforced the guidance from the landmark case of Re Estate of Au Kong Tim [2018] 2 HKLRD 864. In particular, the golden rule in the Au Kong Tim case requires that the execution of a will by such testator be witnessed or approved by a medical practitioner who satisfied himself of the capacity of the testator and keep records of his findings. Surely, while the golden rule may provide prudent guidance for practitioners and assist in the avoidance of disputes, they do not lay down the law. Compliance is not necessarily a touchstone of the validity of a will.
Given the common involvement of adult children in the will-making process for elderly testators, solicitors should meet the testator personally for taking instructions before will execution, and conduct relevant enquiries, such as the testator’s age, health, family, and beneficiaries, as well as their understanding of prior wills. The extent of the enquiries is surely fact-sensitive and will depend on the circumstances of the case.
In the instant case, the court found that the solicitor who prepared the Last Will did engage a medical practitioner to assess the testamentary capacity of the Deceased immediately before will execution, and both the solicitor and medical practitioner were satisfied that the Deceased did have testamentary capacity at the relevant time.
To prevent challenges to a testator’s testamentary capacity, it is prudent to comply with the golden rule, especially for an elderly and infirm testator. Although compliance itself is not conclusive proof of testamentary capacity, it provides a good shield in minimizing any potential disputes.
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