signing document

Can a Document Signed Without Witnesses be a Will?

It may be commonly understood that for a will to be valid, the will must be signed in the presence of witnesses.  However, in the recent case of Choi Cheung Hung v. Leung Fung Ha and Another [2023] HKCFI 2822, the Hong Kong Court held that a handwritten document which was signed without witnesses and thus fails to meet the formality requirements could nonetheless be successfully propounded as a will.

Key Facts

Mr. Choi Cheung Hung (the “Plaintiff”) was in essence the husband of Ms. Cheng Wai Yee Shirley (the “Deceased”).  Although they were not registered as a married couple, they had attended a traditional Chinese wedding ceremony, and their respective families treated them as a married couple.

In August 2021, the Deceased informed the Plaintiff that she had made a handwritten document (the “Written Document”) and a note on her mobile phone (the “Mobile Phone Note”).  The contents of the Written Document and the Mobile Phone Note are the same as the Deceased stated that she wished to leave all her assets to the Plaintiff upon her death.  The Deceased also informed the Plaintiff that the Written Document was stored in a metal box which contains her personal documents.

In October 2021, the Deceased mentioned to the Plaintiff’s younger brother and his wife that she had made a will leaving all her assets to the Plaintiff.

In April 2022, the Deceased passed away.  Thereafter, the Written Document was found, and the handwriting and signature in the Written Document were recognised to be the Deceased’s.

General Legal Principles

The formalities requirements that have to be followed for making a will are set out in section 5(1) of the Wills Ordinance (Cap. 30):-

  • The will is in writing and signed by the testator, or by some other person in his presence and by his direction;
  • It appears that the testator intended by his signature to give effect to the will;
  • The signature was made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
  • Each witness either (a) attests and signs the will; (b) or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).

Where a will lacks any of the above formalities, the court has to be satisfied that the document in question embodies the testamentary intentions of the deceased.  On the issue of testamentary capacity, the following questions should be answered: (1) whether the deceased was capable of understanding the nature of the act of making the will and its effects, (2) whether the deceased was capable of understanding the extent of the property of which he was disposing, and (3) whether the deceased was able to comprehend and appreciate claims to which he ought to give effect.

The Court also has to consider, in light of all the available evidence and the inferences to be drawn from that evidence, whether the testator understood what was in the will when he signed it, and what its effect would be.

Court’s Decision

In the present case, with regard to the Written Document, given that it was dated, signed and placed inside the metal box, the Court considered that the Deceased treated the Written Document as a serious and important document.  The meaning of the Written Document is also plain and clear.

In addition, the Deceased communicated her intention to the Plaintiff and other persons with a clear mind, showing that she had the necessary testamentary capacity, and that she knew and approved the contents of the Written Document.  The Mobile Phone Note also confirmed the same intention.

The Court further considered the Deceased’s wishes to be natural as she had been living with the Plaintiff as husband and wife for decades.

For the reasons above, the Court held that the Written Document embodies the testamentary intentions of the Deceased and ordered the Written Document to be propounded as the last will of the Deceased and appointed the Plaintiff as the administrator.

Key Takeaways

As illustrated in this case, even if a testamentary document lacks formalities, it is still possible to propound it as a will if it is proved that the document embodies the testamentary intentions of the deceased.

To avoid complications, it is always advisable for you and your loved ones to make a will according to the formality requirements set out in the Wills Ordinance, especially if there are considerable assets or specific testamentary wishes.

Where your loved ones have passed away leaving informal testamentary writings, you should promptly seek legal advice on whether such informal document could be propounded as a will.

1200 675 Ince & Co
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