1. TESTATE SUCCESSION
Signing of a Will
In accordance with the Wills Ordinance of Hong Kong Laws - the Chapter 30 Section 5, the provisions for signing and witnessing of a will are as following:
(1) Subject to Sections 6 and 23D, no will shall be valid unless -
(a) It is in writing, and signed by the testator or by some other person in his presence and by his direction;
(b) It appears that the testator intended by his signature to give effect to the will;
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) Each witness either -
(i) Attests and signs the will; or
(ii) Acknowledges his signature,
In the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
(2) 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 intentions of the deceased person.
In addition, no will shall be void on account of incompetency of witness.
The inheritance can be distributed under a will, which has been approved. The enactments relating to probate include Chapter 10 (the Probate and Administration Ordinance) and Chapter 10A (the Non-Contentious Probate Rules).
In accordance with the Chapter 10A Section 10, the Registrar shall satisfy himself that the will has been properly executed in probate.
(1) Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the will, he shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed:
Provided always that if a will is in Chinese characters and appears to be satisfactorily executed by the testator the Registrar may assume without further inquiry that the will has been properly executed.
(2) If no affidavit can be obtained in accordance with the last foregoing paragraph, the Registrar may, if he thinks fit having regard to the desirability of protecting the interests of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the will.
(3) If the Registrar, after considering the evidence-
(a) Is satisfied that the will was not duly executed, he shall refuse probate and shall mark the will accordingly;
(b) Is doubtful whether the will was duly executed, he may require the matter to be referred to the court on motion.
The Chapter 10A Section 53 prescribes the requirements in respect of nuncupative wills and of copies of wills as following:
- An application for an order admitting to proof a nuncupative will, or a will which it is claimed is valid according to the provisions contained in the Wills Ordinance (Cap 30) or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made to the Registrar:
- Provided that where a will is not available owing to its being retained in the custody of a court of justice outside Hong Kong or of an official of a government other than the Government of the Hong Kong Special Administrative Region, a duly authenticated copy of the will may be admitted to proof without any such order as aforesaid.