Any person over the age of 18 may make a Will. A Will is a document which sets out how a person's assets are to be distributed after his or her death. The person making the Will is called the "testator"(if male) or "testatrix"(if female). Therefore, if a person leaves a Will after the death, he or she is said to have died "testate". For those without a Will, they are called "intestate".
The advantages of making a Will
If a person makes a Will, he/she can:-
- arrange how his/her assets will be shared amongst relatives other than according to the law of intestate;
- leave assets to beneficiaries who are not related to him/her, e.g. friends and charities;
- appoint executor(s) (number of executors not to exceed FOUR) to manage and distribute the assets.
If the deceased dies without a Will, the distribution of the assets and who can administer the estate will be governed by the law of intestate.
What are the formalities of making a Will?
Although you can make a Will by yourself, it is advisable to seek help from a solicitor. This will save time and legal costs should it be necessary to prove (after your death) your intention and mental capacity at the time you prepared and signed the Will. A well-drafted Will can also minimize potential disputes among your family members and inheritors.
If you intend to prepare your own Will, the following formalities should be followed:
- all of your intentions should be produced in writing;
- the Will is to be signed by you or a person in your presence and by your direction (the latter is not recommended unless there are special circumstances, such as you are physically unable to sign it);
- your signature and those of the witnesses should preferably be placed at the end of the Will;
- the Will should be dated before it is signed;
- your signature should be witnessed by two persons (aged 18 or above) present at the same time who should then sign your Will in your present; and
- the witness and his/her spouse should not be a beneficiary under your Will. If a beneficiary or his/her spouse witnesses the Will, the gift to the beneficiary under your Will is forfeited.
If the deceased made no Will, how can the relevant estate be distributed?
The followings are some of the usual scenarios.
(A) The deceased only leaves a spouse
(B) The deceased leaves a spouse and issue
If the deceased leaves a spouse and issue, whether or not survived by his/her parents or siblings, the surviving spouse could take the following first:
- all of the deceased's personal chattels;
- a sum of $500,000 from the residuary estate.
After the aforesaid $500,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased.
(C) The deceased leaves a spouse, parents and siblings, but no issue
If the deceased has issue, the deceased's parents, brothers and sisters cannot obtain anything even if the deceased's spouse has predeceased (die before) the deceased.
Only if the deceased has no issue can the parents and siblings have a share in the deceased's estate, even if his/her spouse survives . The surviving spouse could take the following first:
- all of the deceased's personal chattels;
- a sum of $1,000,000 from the residuary estate.
After the aforesaid $1,000,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s).
On the other hand, if one or both parents survive, the siblings cannot obtain a share of the deceased’s estate. They will only be entitled to part of the estate (after deduction of the spouse's entitlement) if the deceased leaves no issue and no parents.
(D) The share of "illegitimate children"
An illegitimate child means a child whose natural parents are not married in a manner that the laws of Hong Kong recognize.
Before the 19th June 1993, illegitimate children were not entitled to succeed to their deceased father's estate if their father died intestate (without a Will). Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children. If the deceased parent had a Will and he gave "his children" a gift or a sum of money to share, the illegitimate children were not entitled to share in the gift.
However, this position has been changed by the Parent and Child Ordinance.
Illegitimate children can now enjoy the same succession rights as legitimate ones if their parents die after 19 th June 1993.
One point to note is that for those adopted children (i.e. they have been adopted by persons through a legal adoption process), they have the same status as the natural children. In other words, they shall be treated as the children of the adopter but not the children of any other persons.