Introduction

What can a deceased’s family member do if there are concerns and/or disputes over the deceased’s will? Before the Probate Registry has issued the grant of representation, the deceased’s family members may request for inspection of the original of the will and obtaining a copy of the will from the executors of the will or from the Probate Registry. Putting in a caveat at the Probate Registry in respect of the deceased’s estate can give family members’ notice of any application for grant of representation by anyone else.

Why should the deceased’s family members inspect the will?

It is always important for the deceased’s family members to have the opportunity to inspect the will because the existence and validity of the will affect the right of the deceased’s family members to deal with the estate of the deceased and their entitlement to the deceased’s estate.

If the deceased did not leave a will i.e. intestacy, in accordance with the Intestates’ Estates Ordinance (Cap. 73) and the Non-Contentious Probate Rules (Cap. 10A), the deceased’s surviving spouse, children, issue of children, parents, siblings or issue of siblings (the “Concerned Parties”) have priority in the acquisition of a grant of administration and interests in the estate of the deceased. There are two scenarios that the law of intestacy may come into play:

1.       where the deceased passes away without making a valid will, the law of intestacy governs the administration and distribution of the deceased’s estate; and

2.       where the deceased passes away with a valid will, but the residuary legatee clause in the will is found to be absent or improperly drafted, the law of intestacy governs the distribution of the assets left undisposed.

How may the Concerned Parties request for inspection of the will?

The simplest way is to request the disclosure of the contents of the will from the executors named in the will.

If it is known that a person is in possession of the will but such a person has not lodged the will in the Probate Registry, the Concerned Parties may file an affidavit in compliance with Order 76 Rule 5 of the Rules of High Court (Cap. 4A) and ask the Court to order such a person for production of the will into the Probate Registry and supply of the copy of the will, pursuant to section 7 of the Probate and Administration Ordinance (Cap. 10) (“PAO”).

In the case of Chan Mei Fat v Choi Lai Sheung HCMP 847/2005, the applicant sought the Court to order the executor named in the deceased’s will to produce and bring into court the will and to supply a copy of the will. The Court considered the following matters when making such an order under s.7 of PAO in favour of the applicant:

1.       The applicant, being the husband of the deceased, may have an interest in the estate of the deceased in case of intestacy or if there is no valid disposition of the residuary estate under the will.

2.       The inspection of the will would enable the applicant to decide whether he should apply for letters of administration himself. 

3.       The applicant is entitled to put the person propounding the will to prove the will in solemn form.

4.       Although the deceased wished for the will to be kept in the strictest confidence and not to be known by the applicant, the deceased did not indicate any wish that the applicant should not obtain knowledge of the will after her death.

5.       Where the legatees of the will wish for their identity and entitlement to be kept in the strictest confidence and not to be known by the applicant, the legatees are not beneficiaries unless and until the will is proved and the estate is administered; and once the will is proved, the will becomes a public document and will be annexed to the probate for public inspection.

Alternatively, if the executors named in the will has lodged the will in the Probate Registry, the will is deposited and preserved in the Probate Registry. According to section 73 of the PAO, the inspection of the will is subject to the control of the Probate Master and leave from the Probate Master has to be obtained. In addition, according to section 74 of the PAO, the Concerned Parties may also obtain an official copy of the will with the seal of the Court from the Probate Registry on the payment of fees.

Takeaway

Whether a deceased has left behind a will and the validity of that will has serious implications on probate procedure and subsequent administration of the estate. If a beneficiary has the knowledge of the existence of a will, but is not sure of the contents of the will, he should check carefully to confirm the existence of the will and make applications to the Court for inspection of the will if necessary. If a beneficiary does not know whether the deceased has executed a will, he may retain a solicitor to conduct a will search through the Law Society of Hong Kong to find out whether or not the deceased has executed a will through other solicitors in Hong Kong.

For enquiries, please feel free to contact us at:

E: probate@onc.hk                                                             T: (852) 2810 1212 W: www.onc.hk                                                                    F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2024