It’s All In The Mind…

Common Grounds to Contest a Will

Although people in Hong Kong enjoys testamentary freedom (i.e "absolute freedom" in the disposal of their property), there are situations where a Will can be contested.  For example,

• the Will has not been signed or witnessed properly;
• the testator was mentally incapable to make the Will;
• the testator had no knowledge of or had not approved the contents of the Will;
• the testator was under undue influence to make the Will; and
• Forgery

Here we will focus on the ground where the testator's mental capacity is being challenged.

Mental Capacity of the Testator

The law in respect of testamentary capacity is laid down in the long established English case of Banks v Goodfellow (1870), L.R.5Q.B.549.  A testator must at the time of executing a Will to possess the necessary intellectual and moral faculties.  He must: