Establishing Mental Capacity in Making a Will

A recent decision from the High Court was made regarding to the validity of the wills of Lam Chok Wai, eldest son of the founder of the well-known electronic appliances distributor, Tai Lin Radio Services Limited. A claim was raised by the widow of the deceased arguing that the second and third wills made in 1999 and 2005 respectively were invalid and the first will made in 1987 should remain in force. The court ruled in favour of the plaintiff that the subsequent wills were invalid because the mental capacity of the testator could not be established when the will was made.

According to Section 13 of Cap. 30 Wills Ordinance, a will shall not be revoked unless there is another valid will. Regarding to the case in question, if the 1999 Will or 2005 Will was held to be valid, the 1987 Will would be revoked. As no issue was raised challenging the validity of the 1987 Will, it would remain in light of the court revoking the validity of the 1999 Will and 2005 Will.

The issue of the case was whether the testator has the sufficient mental capacity when making the will. In Re the Estate of Au Kong Tim [2018] 2 HKLRD 864, it is necessary to examine the mental capacity of the testator, following the test applied in Banks v Goodfellow (1868-70) LR 5 QB 549 where it is crucial that all criteria of the test must be satisfied to ascertain the mental capacity of the testator. In the present case, the testator suffered repeated strokes before making the second and third wills which has casted serious doubts on the testator’s mental capacity. According to the testimonies made by the doctors, it was assessed that the testator did not have the sufficient mental capacity to make the will in 1999 and 2005. As a result, the subsequent wills made in 1999 and 2005 were invalid due to insufficient mental capacity. Therefore, the first will made in 1987 still remains valid and the plaintiffs would inherit the estates of the testators.

If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.

Please feel free to contact us at 69776708 for Mr Lam or make an appointment.

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