Probate Case Study: Rescuing a Non-Compliant Homemade Will during Pandemic
Background
Losing a beloved one is sorrowful, yet, after undergoing an emotional healing process, one may deal with the lost one’s assets and liabilities by way of application for the grant.
For application for grant of probate, usually, it will be the most straightforward case if a testator has duly executed a will which is most ideally prepared and witnessed by a solicitor to a law firm strictly in accordance with section 5(1), Wills Ordinance (“WO”) during his/her lifetime with sound mental and testamentary capacity, although it is still the prevailing practice of the Probate Registry that time will be taken to carefully review the applications.
Yet, even if a testator had left a will, the application for grant of probate can still be complicated if certain circumstances exist, and additional time for the Probate Registry’s processing and requisitions will be incurred. Here is a case with peculiar elements handled by SFKS, which is of referential value.
The Rule: How shall a Will be Legally Executed?
There is no stringent requirement as to where the testator executes his/her will as long as section 5(1), WO is complied with, in other words, it is not strictly required for a testator to execute a will in a law firm’s office. In fact, for a terminally ill testator who intends to executes his/her final will, most of the law firms’ solicitors (depending on circumstances, together with registered psychiatrists) offer to attend the hospital where the testator is hospitalized to execute the will.
Section 5(1), WO provides that:-
“(1) Subject to section 6, no will shall be valid unless— (Amended 21 of 2024 s. 78)
(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 2 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”
Case Study: Execution of a Will by a Hospitalized Testator during Pandemic
However, during the outbreak of Covid-19, stringent visiting restrictions were imposed by the Hospital Authority on public hospitals to combat the pandemic. Hence, it was difficult for even relatives to visit their loved one in the hospital, let alone solicitors or psychiatrists for the purpose of execution of a will, whereas nurses and doctors in public hospitals were generally reluctant to become witness and sign a will in view of the potential responsibilities that might arise therefrom.
Having no other alternatives, the patient concerned had to execute the will alone in the hospital, i.e. without two witnesses, and this was clearly in non- compliance with section 5(1), WO.
The patient passed away. The remaining challenge for the family members and the solicitors was to uphold the non-compliant homemade will and make the best attempt to prove the testamentary intentions therein. We chose the latter.
Alternative Route for Grant of Probate of a Non-Compliant Will
Upon lodging an application of grant of probate of such will, the Probate Registry will review such application with extra care and scrutiny, in particular, the Probate Registry will ask whether the applicant/executor intends to invoke section 5(2), WO, which provides 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 intentions of the deceased person” (emphasis added).
In short, the applicant/executor is required to show and satisfy the court by way of an affidavit/affirmation that the will signed by the testator alone embodied his/her testamentary intentions without any reasonable doubt. Proof of the embodiment of the testator’s “testamentary intentions” is rather fact-sensitive and may differ from case to case. While, generally speaking, in non-contentious probate application, an affidavit/affirmation shall be in the prescribed form, and any document to be used in conjunction with an affidavit/affirmation need not be exhibited to the affidavit/affirmation if the original document is filed in the Probate Registry (rule 65, Non-Contentious Probate Rules), the applicant/executor’s affidavit/affirmation showing the testator’s testamentary intention is not in any prescribed form and it also needs to account for the factual details leading to the execution of the subject will, all documents surrounding the execution of the subject shall be exhibited to explain that the subject will did embody the testator’s “testamentary intentions” and the reason why the testator was unable to duly execute the subject will as per section 5(1), WO.
In this case handled by SFKS, we have prepared on behalf of the applicant an affirmation together with exhibits showing that the subject Will was prepared by our firm and embodied the testamentary intentions of the testator at the material times, in particular given the peculiar circumstances at the time of pandemic, it was not feasible for the subject will to be executed by the testator pursuant to section 5(1), WO.
Nevertheless, as the Probate Registry was cautious about any applications for grant of probate pursuant to section 5(2), WO, in the said affirmation, the applicant was also required to show who would be entitled to share in the estate if the testator had died intestate, and also needed to file consent(s) of those other persons to the ex-parte application under section 5(2), WO.
Gladly, the Probate Registry has eventually been satisfied by the affirmation and the consent(s) prepared by us and allowed the applicant/executor’s application under section 5(2), WO with the probate of the subject will granted to the applicant/executor. This was after almost 1.5 years since the death of the testator, whose last wishes were finally fulfilled.
Conclusion
To conclude, application of grant of probate of a will is supposedly simple and straightforward. However, due to certain circumstances which are out of human control, such application can still be complex. In any event, if a will is prepared by a law firm, coupled with certain peculiar circumstances that the applicant/executor can properly explain, even if it is subsequently not executed in compliance with section 5(1), WO, the applicant still has grounds to satisfy the court beyond reasonable doubt that the subject will embodies the testamentary intentions of the testator and have the grant of probate of the subject will to be granted to him under section 5(2), WO.
The following are key takeaways:-
First, it is always better to plan for the making of wills in advance, and not to wait until being hospitalized where you run the risks of making a non-compliant will or making no will.
Second, although a will can be prepared and executed without involving solicitors, it is highly advisable that wherever possible, solicitors should be engaged for drafting a will or document(s) embodying testamentary intentions and ensuring legal compliance, eliminating all risks of the preparation of a homemade will.
Third, family members who found an apparently non-compliant homemade will of a deceased should not just give up, but they should consult solicitors to consider the alternate route under section 5(2), WO though it would take time.
