As many other experienced Trust & Estate litigators, we’ve seen countless Will disputes that could have been prevented with proper preparation. The recent Hong Kong Court of First Instance decision in re Lo Siu Fung’s case (HCAP 37/2015) starkly illustrates why Will-writing, particularly in complex family situations, requires much more than simply recording and executing clients’ instructions.
When a Will disinherits natural beneficiaries (those who would otherwise be entitled to share under intestacy rules), it demands exceptional care and attention. The Courts scrutinize such Wills particularly closely, and practitioners must implement comprehensive safeguards to ensure their validity. This necessarily involves significantly more time and expertise than preparing a simple Will that follows conventional family inheritance patterns.
The “Golden Rule” in such cases cannot be overstated: when a client is elderly or appears to suffer from any illness or impairment that might affect their capacity, practitioners should arrange for a proper medical assessment before taking Will instructions. This means engaging a qualified clinical psychiatrist who can administer appropriate tests and provide a detailed written assessment. The psychiatrist should specifically address the Banks v Goodfellow criteria for testamentary capacity and document their analysis of whether the testator understands the nature of making a Will, the extent of their property, and the claims to which they ought to give effect. This medical evidence becomes invaluable if the Will is later challenged.
The Lo Siu Fung case demonstrates the severe consequences of inadequate safeguards. A Will was invalidated due to questions about testamentary capacity and undue influence, leading to years of costly litigation. The Court’s detailed examination of the solicitor’s practices reveals that cursory meetings and basic procedural compliance are insufficient. Proper Will-writing in complex situations requires thorough capacity assessments, detailed documentation, multiple meetings, and careful consideration of potential undue influence.
For practitioners, this means implementing robust protective measures. We must keep comprehensive attendance notes, conduct and document proper capacity assessments, ensure client independence, and be alert to red flags such as isolation from family members or suspicious asset transfers. When clients wish to exclude natural beneficiaries, we must take extra time to understand and document their reasons. In most cases involving elderly clients or those disinheriting family members, independent psychiatric assessments should be considered mandatory rather than optional. Moreover, those who are named as beneficiaries should not be present at the time when the testator signs the Will.
These requirements inevitably mean higher costs than standard Will preparation. However, these costs are modest compared to the potential expense of Will disputes, which can consume vast amounts in legal fees and tear families apart. Moreover, proper preparation protects both the client’s testamentary wishes and the practitioner from potential liability. The cost of a detailed psychiatric assessment and extra professional time at the Will-writing stage is a necessary price to pay for the protection it affords.
The reality is that complex Will-writing requires significant professional time and expertise. When clients question higher fees for such services, we should explain that thorough preparation is an investment in ensuring their wishes are carried out and protecting their estate from costly challenges. In the context of Estate Planning, paying more for proper professional services at the outset is invariably more cost-effective than risking the far greater expense of litigation after death.
Practitioners who cut corners to offer bargain rates for will-writing in complex situations do their clients no favours. The Lo Siu Fung case reminds us that proper will preparation is not merely a documentary exercise but a crucial professional service requiring careful judgment, thorough safeguards, and appropriate compensation for the expertise and time involved.
Our Private Client, Probate & Trust team at Hugill & Ip has extensive experience in dealing with contentious and non-contentious Estate issues – so kindly get in touch with our solicitors to find out how we can help in your specific circumstances.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
