December 2023

A home-made or hand-written will submitted for probate application often creates problems due to lack of compliance with formality required under the Wills Ordinance Cap.30. The common defects include the failure to have at least two witnesses upon signing of the will by the testator and the omission of the testator to properly appoint an executor to implement the will.

In the recent case of Choi Cheung Hung v. Leung Fung Ha and Cheng Shun Nui [2023] HKCFI 2822, the deceased wrote and signed a note, without any witness, to say that after her death, all her assets would be given to the probate applicant being the de-facto husband of the deceased for over 40 years. Section 5(2) of the Wills Ordinance stipulates that “A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intention of the deceased person.” The test adopted should be the test of “beyond reasonable doubt” that the document embodies the testamentary intention of the deceased. The court was satisfied in this case given the status of the applicant for the probate and there was no challenge by any interested party under intestacy to the estate.

In analyzing, the court also recapped that on the issue of testamentary capacity, the following questions should be satisfactorily answered:

(1) whether the deceased was capable of understanding the nature of the act of making the will and its effects;

(2) whether the deceased was capable of understanding the extent of the property of which he was disposing; and

(3) whether the deceased was able to comprehend and appreciate claims to which he ought to give effect.

In considering knowledge and approval, the correct or more preferable approach was to ask a single question of whether the testator understood what was in the will when he signed it, and what its effect would be, and to consider that question in the light of all the available evidence and the inferences to be drawn from that evidence. One interesting issue in this case was whether an electronic file of a mobile phone message could be considered as “a document” under section 5(2) of the Wills Ordinance to support the testamentary intention of the deceased under the will. The trial judge said “I refrain from making a ruling on this question in this judgment, and would leave the issue open.” This controversial point is not easy to resolve in this digital generation.