Pitfalls of Homemade Wills
In recent years, one of the main issues facing the Probate Registry has been the steady increase of ‘DIY Wills’. There are a number of ways to create a Will.
Most people will either instruct a solicitor specialised in Estate Planning on their behalf. Alternatively, people may make a homemade version using an online tool or general template. Making a Will at home seems to be the most affordable option, but the lack of professional guidance can lead to ambiguities rendering many Wills invalid, or – even worse – leading to future estate litigations which end up costing time and significant expenses.
Over the years we have come across a number of homemade Wills, as a result, we have seen a series of horror contentious stories that could have been easily avoided through appropriate and professional advice.
In cases where the homemade Will has an ambiguous meaning, the Court might ultimately have to determine the outcome for the beneficiaries. The primary objective when determining the distribution of the estate would be to ascertain what the deceased originally intended when writing the Will. This is a risky position, in fact, the Court’s judgment could significantly differ from the intentions of the deceased.
Several of our clients have encountered difficulties that include the circumstances highlighted here below.
Often people write a suicide note before taking their own life, some contain final wishes regarding assets. The question is, can a suicide note can be deemed as a Will?
Another common problem is due execution of the homemade Will. Under Hong Kong laws, a Will must be in writing and signed before two witnesses. Often such requirements are not observed in a homemade Will: usually, either the signature of the testator was not witnessed or only witnessed by one person.
Homemade Wills are often drafted by individuals who are not skilled at drafting Wills. For example, a person may not be trained to draft a Will to leave a specific gift to a beneficiary, rendering a certain gift unenforceable or potentially disputable.