A Lost or Destroyed Will in Hong Kong: the Presumption of Revocation, and What Rebuts It

Six things to know first

A copy is not worthless — the Non-Contentious Probate Rules define "will", for the whole of the Rules, to include a copy — but where the original was last in the testator's own custody and cannot be found at death, the law presumes he destroyed it himself intending to revoke it, and the burden of rebutting that presumption falls on whoever wants to rely on the will.

The question people arrive with is "we only have a photocopy — is it any use?". The answer has six layers, and the first and the fourth run against the intuition almost everybody brings.

• A copy may support an application; it is not automatically useless. Cap. 10A r. 2(2) defines the term for every rule in the book:

> will (遺囑) includes a nuncupative will or a will which is valid according to the provisions contained in the Wills Ordinance (Cap. 30) and any testamentary document or copy or reconstruction thereof.

⚠️ But that is an interpretation clause, not a statement that a copy stands on the same footing as the original. Getting a copy in normally requires an application and an order under r. 53, and on Guide para. 148 the resulting grant is normally limited until the original, or a more authentic copy, is proved. The whole procedure is in the fifth section below.

• But a presumption stands in front of it. In Re Estate of Lioe Ka Khie (HCAP 12/2005, Lam J, judgment 23 January 2009; reported at [2009] 2 HKLRD 115) the Court of First Instance stated the rule: a will that was in the testator's custody and cannot be found at his death is presumed to have been destroyed by him for the purpose of revoking it. It is rebuttable — and the burden of proving the will was not revoked lies on the party propounding it.

• Missing alone is not enough: the presumption ordinarily requires both limbs — last custody with the testator, and non-production at death. The classic formulation, which Lam J sets out in full in Han Yi, is Welch v Phillips: a will "traced to the possession of the deceased, and last seen there" that "is not forthcoming on this death" is presumed to have been destroyed by the testator (quoted in full below). In Han Yi v Ngan Shun Wai (HCAP 8/2008, Lam J, judgment 5 August 2011) the same judge engaged the presumption on the footing that there was no suggestion the deceased had entrusted custody of the will to any third party during his lifetime. So the most useful question is not when did it go missing but whose hands the original was last in — without that answer displacing the second limb.

• Keeping it carefully does not necessarily help you. This is the single counter-intuitive fact of the whole subject and it is what the fourth section below is about: in Lioe the testator's custody was careless and the presumption was rebutted; in Han Yi the testator's custody was meticulous and the same judge treated that as reinforcing the conclusion that the will had been revoked. That conclusion was affirmed on appeal: the Court of Appeal (Tang VP, with Cheung JA and Yuen JA agreeing) dismissed the appeal with costs (Han Yi v Ngan Shun Wai, CACV 168/2011, Reasons for Judgment 11 September 2012), agreeing that the strength of the presumption followed from the testator's meticulous care with his documents (para. 20), and holding that the case turned on the trial judge's findings of fact and the inferences he reasonably made (para. 43, Yuen JA).

• Stopping does not escape the presumption; it asserts it on oath. The Probate Registry's published Guide to Non-Contentious Probate Practice, para. 179 (English only):

Summary, not a quotation. Para. 179 covers the case where nothing is known to have been lost or destroyed. It asks the oath to say two things: that a reasonable search has been made and has not turned the will up, and that the applicant has nothing capable of displacing the presumption that the testator destroyed it meaning to revoke it — destruction animo revocandi.

And where a court has determined that the will was revoked, Cap. 30 s. 17 provides that it is not revived except by re-execution or by a codicil. ⚠️ Determined, not sworn to. The oath does not make the presumption true, and Cap. 10 s. 33 lets the court call in and revoke a probate or administration that ought not to have been granted or that contains an error.

• Nobody's consent solves this. Guide para. 170 records that the consent of persons interested proves nothing, and that no person's consent can turn a will into something other than a will. (Summary.)

The processing times the Judiciary's Probate Registry publishes are set out below, under "What it costs and how long it takes".

What the presumption is, and why the law will not simply take the copy

The ways of revoking a will are a closed list, and the destruction limb requires the intention to revoke — so a will that has merely gone missing falls outside every mode of revocation the statute recognises. The presumption is what fills that gap.

Cap. 30 s. 13. Note the opening words — "otherwise than" — which make the four limbs exhaustive:

"Lost" is not on that list. Lam J opens Han Yi by saying so:

So why have a presumption at all? Because the document is not there and nobody saw it go. The rule comes from Welch v Phillips (1836) 1 Moo PCC 299, which Lam J sets out in full in Han Yi, quoting Parke B at p. 302:

Why the law is being so difficult. The honest answer is not bureaucracy, and Hong Kong shows it twice, 56 years apart, each time declining to relax proof for wills specifically.

The first is the Evidence Ordinance (Cap. 8) s. 42. An attested instrument may generally be proved without an attesting witness — and then the proviso removes wills from that relief:

The second is 1995. Reporting the Bills Committee, the Legislative Council record sets out the Administration's stated reason for the standard it set on the Cap. 30 s. 5(2) dispensing power (Hong Kong Hansard, 12 July 1995, p. 5311):

Summary, not a quotation. The Administration's stated reason was that the provision then in force had no formal authenticity check built into it and, being confined to Chinese testators, was discriminatory. The standard, it said, had to sit between a threshold so high that genuine wills would fail approval and a risk it described as unacceptable — that forgeries would be let through into probate.

This next step is our own reasoning and is marked as such. What that 1995 record is about is s. 5(2), not the presumption of revocation. What transfers is the risk the legislature named, not the provision it named it about: a document that cannot be checked against an original cannot be authenticated, so the burden of persuasion sits with whoever wants it admitted. Two separate legislative choices, 1939 and 1995, point the same way.

⚠️ Three different presumptions live in this area, and this article is about one of them. (1) The presumption of revocation where a will in the testator's custody cannot be found — judge-made, and the subject of this article. (2) The presumption that alterations were made after execution, which is a different doctrine on a different problem and is dealt with in the damaged-will section below. (3) The presumption abolished by Cap. 30 s. 13(2) — revocation implied from an alteration in circumstances — which may be cited only for what it abolishes, and never in support of (1).

When the presumption is engaged: whose hands the original was last in, and that it is not forthcoming at death

*Absence alone does not engage the presumption: the common-law rule has two limbs — the original last in the testator's own custody, and not forthcoming at his death. In Han Yi the court engaged it on the express footing that there was no suggestion custody had been entrusted to any third party. This section is about the first limb, because that is the limb your existing facts already answer.*

This is the section worth the most time, because it turns on facts you already know today, before spending anything.

First, the threshold is lower than people expect. Lioe, para. 47:

(The case is Allan v Morrison; the judgment spells it Morrsion and the quotation reproduces the judgment as it stands.) In other words, "nobody can prove he burnt it" is not an answer — the presumption exists precisely to deal with the absence of such proof.

Second, third-party custody is the dividing line, and here is exactly what the authority says. Han Yi, para. 26:

⚠️ Read that for what it is and is not. It says the presumption is engaged because custody was not entrusted to a third party. *What happens where custody was so entrusted is a different question.*

Third, a distinction many people get wrong: "a solicitor drew it up" is not "a solicitor has it". In Han Yi the will was prepared by a solicitors' firm and attested by two of its solicitors; the firm held a copy on its file and supplied copies to three parties within days of the death. It did not keep the original. The solicitor who took instructions put the original in the firm's brown envelope and gave it to the testator on the day of execution; her evidence was that her practice was not to keep original wills for clients, though the firm had no set policy on the point. The judge accepted her evidence and found the will was in the deceased's possession after execution.

That also disposes of an easy error. Guide para. 133 says that where a will was prepared by a firm of solicitors and executed before its solicitors or clerks, no requisition will be raised to confirm due execution. That paragraph is about due execution. It says nothing about the presumption of revocation — and Han Yi is the demonstration: a firm-drafted, firm-attested will, due execution undisputed, and the presumption engaged against it and never rebutted.

*Fourth, Lioe considered two alternative explanations, each carrying a stated burden. Lioe*, para. 49 — and note its opening words, which tie it to the circumstances of that case:

And Han Yi adds the standard for the second:

⚠️ *Those are the two alternatives advanced and considered in Lioe, on its own facts — not an exhaustive taxonomy for every lost-will case.* The same judgment says as much at paras. 23–24: the presumptions are indications of inferences to be drawn and not rigid rules, and the court approaches the question by asking what is the most probable explanation of the absence of the will on the evidence as a whole.

Three routes on that framework, each with its failure state:

• Establish that it was mislaid or destroyed by accident → if established, the will is not revoked and its contents may be proved by secondary evidence, including a copy. If not → route 3.
• Establish that it was fraudulently removed after death → same result if established; but the standard is cogent evidence commensurate with the charge. If not → route 3.
• Neither established → the presumption applies and the will is treated as revoked.

And there is a statutory provision behind the words "secondary evidence" in route 1. The Evidence Ordinance (Cap. 8) has a Part IV — Hearsay Evidence in Civil Proceedings, ss. 46 to 54 — and s. 53 is addressed to exactly the problem of a document that is not there:

*Read s. 53(1)(b) slowly: "whether or not that document is still in existence".** The statute contemplates proving a document's contents by a copy of it in terms that do not require the original to exist, and s. 53(2) makes the number of removes between copy and original immaterial. That is the statutory counterpart of what Lioe* did on the facts — the contents proved by the copy the other side produced.

⚠️ Two limits on that, and this article states them rather than letting the section carry more than it can. First, Part IV is bounded by its own definition section, s. 46:

*A contested probate action in the Court of First Instance plainly is such a proceeding. Whether an ex parte application to the Registrar under Cap. 10A r. 53 is one is a separate question for a solicitor. Second, s. 53 goes to how contents are proved; it does not touch the presumption of revocation at all. A copy can be admitted under s. 53 and the will still be held revoked — which is precisely what happened in Han Yi*.

One judge, one factor list, two opposite outcomes

*Careful custody does not necessarily help: in Lioe the testator kept the will carelessly and the presumption was rebutted; in Han Yi the testator kept his documents meticulously and the same judge said that reinforced the conclusion that the will had been revoked — because a careful person's will does not simply vanish.*

This is the core of the article and it is what no government page can give you: two cases, one judge, one factor list, opposite results. The list itself is Lam J's own, at Lioe para. 21, and it is the list the Probate Registry's Guide reproduces at para. 149, footnoting this very case:

<table> <caption>Re Estate of Lioe Ka Khie (HCAP 12/2005, Lam J, 23 January 2009) and Han Yi v Ngan Shun Wai (HCAP 8/2008, Lam J, 5 August 2011) — one factor list, two opposite results. Both judgments are in English; the cells below are this site's summary of the findings, not quotations.</caption> <thead><tr><th>Factor (Lioe, para. 21)</th><th>Lioe — presumption rebutted</th><th>Han Yi — will held revoked</th></tr></thead> <tbody> <tr><td>The character of the custody</td><td>No concrete evidence he had ever put the will in his safe; his wife's own solicitors had written in 1994 that it was mislaid; and in his last years he was hospitalised and, on her evidence, of unsound mind most of the time — so mislaying or even accidental destruction was, the judge held, quite probable</td><td>A safe at home, plus files kept in the bedroom he used as a study; the attesting solicitor had told him expressly to keep the will safely. The judge accepted he was a meticulous person, careful with his documents</td></tr> <tr><td>The character of the testator</td><td>A very traditional Chinese man who wished his male descendants to inherit; unlikely to revoke a will without replacing it</td><td>An intelligent, well-educated and shrewd businessman</td></tr> <tr><td>Relationship with beneficiaries and next of kin, from the making of the will to death</td><td>Nothing suggested his relationship with the adopted children and grandchildren had deteriorated since the will was made</td><td>The relationship with the plaintiff had deteriorated between 2003 and 2008, and had improved with the children for whom the will made no provision</td></tr> <tr><td>The contents of the will</td><td>Corroborated by a handwritten Chinese note by the testator, largely consistent with the will — the judge asked rhetorically why, if he had meant to revoke by destroying the will, he kept the note</td><td>No corroborating document; and, the relationship having changed, no inherent implausibility in his changing his mind</td></tr> <tr><td>Whether he had any cause to revoke</td><td>The judge could find no reason why the testator would have wanted to revoke between 1976 and 1981</td><td>The changes in relationships were sound reasons for revocation</td></tr> <tr><td><strong>Outcome</strong></td><td>Paras. 52 and 84 — presumption rebutted; <strong>the contents proved by the copy the other side produced</strong></td><td>The will had been revoked by destruction before death; the claim was dismissed</td></tr> </tbody> </table>

The outcome in Lioe, in the judgment's own words:

Three things follow, and the third is the useful one.

First, the list is not a scorecard. Lioe para. 23 quotes Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 19th ed. (2008), at para. 14-29 — "The presumptions are to be treated as indications of inferences to be drawn and not as rigid rules." Para. 24 then quotes Wrangham J in Re Yule (1965) 109 Sol J 317:

(Both passages are quotations inside the judgment, of a textbook and of an English judge respectively.)

*Second, Han Yi did not need the presumption.* Lam J's conclusion:

So the practical question is not can we defeat a presumption but what is the most probable explanation, on all the evidence, for why this document is not here.

Third, how the two decisions can be read side by side. Where the original was, whether the deceased was a careful person, whether relationships changed, whether any corroborating document exists and whether there was any cause to revoke are the points of comparison in the two cases. How those factors apply to your own facts needs a solicitor's assessment.

⚠️ Three limits, in the same breath. (1) Three of the four judgments in this article are contested probate actions tried in the Court of First Instance, the fourth being the appeal in one of them. The route the Registry publishes for a missing original is an ex parte application to the Registrar (next section), and none of those three is one; a trial outcome is not what the Registrar does on the papers. (2) Two cases do not make a statistic. The Law Commission of England and Wales's 2025 report lists six revocation-by-destruction cases since 2017 and records that revocation by destruction was successfully argued in two of them; no equivalent Hong Kong figure is published. (3) There is now an appellate layer, and it is one case. The direct appeal in Han Yi — CACV 168/2011 in the Court of Appeal — has its outcome and reasoning set out at point 4 above. One appeal is not a general rule about appellate courts: the Court declined to interfere with the findings of fact and the inferences this trial judge drew, rather than laying down any new standard for rebutting the presumption.

⚠️ Practice Direction 20.1 (Non-Contentious Probate Practice) states the general procedure at paragraph 1, and it matches the ex parte route described above:

Its paragraph 5 provides separately for an application under Rule 29 of the Non-Contentious Probate Rules, likewise ex parte and capable of being filed together with the application for the grant.

Both branches, one presumption

Stopping and administering on intestacy is not the neutral, cost-free branch: it is a sworn statement, by the person who stops, that there is no evidence to rebut the presumption — and once a court has determined that the will was revoked, Cap. 30 s. 17 means it cannot be revived except by re-execution or a codicil. ⚠️ Determined, not sworn to: the oath is a position taken in the application, not a finding, and Cap. 10 s. 33 allows a grant that ought not to have been made to be called in and revoked.

Going: an ex parte application to the Registrar

The rule is Cap. 10A r. 53, and it receives four kinds of secondary evidence:

Note the proviso: where the original is unavailable because it is retained by a court outside Hong Kong or by an official of another government, a duly authenticated copy may be admitted without any order at all. For a family whose original sits in an overseas or mainland court file, that is the whole answer. (Keep the distinction: this is about where the will is, not where the assets are.)

The Registry has a pre-printed requisition for that situation too, Common Requisitions §4.14:

Summary, not a quotation. §4.14 asks the applicant to say in the oath whether an overseas court has already proved the original, and if one has, whether that court is holding the document and will not release it.

Which tells you it is not a rare exception — the Registry expects to meet it.

What must be proved is not in the rule. It is only in the Registry's own published documents. Guide para. 148:

Summary, not a quotation. Para. 148 addresses the case where the original will or codicil is lost, mislaid or unavailable and the applicant seeks to admit a copy. It draws practitioners' attention to the rebuttable presumption of revocation, says an ex parte application is what rebuts it, and records that where the copy gets in, the order usually carries a direction confining the grant until such time as either the original itself, or some copy more authentic than the one produced, is proved.

Para. 149 supplies the burden and the factor list, footnoting Re Lioe Ka Khie:

Summary, not a quotation. Para. 149 places the burden on the applicant who seeks to admit a copy will to prove that it has not been revoked, by putting in evidence of the surrounding circumstances — its own worked example being a declaration by the testator that his affection or his intention had not changed. The matters it lists are the character of the custody; the character of the testator; how he stood, between making the will and dying, both with those the will benefits and with his other next of kin; what the will says; and whether he had reason to revoke. Its footnote 51 cites Re Lioe Ka Khie [2009] 2 HKLRD 115, Lam J.

And the Registry's Common Requisitions — the standard reply it sends when the papers are wrong — carries a pre-printed paragraph for exactly this case, §4.15:

Summary, not a quotation. §4.15 is the standing requisition for a lost original: it asks for an ex parte application, made by filing an affidavit, seeking an order of the Registrar that admits the copy as the deceased's last will — that admission to hold only until either the original itself, or a more authentic copy, is proved — and it records the standing complaint that the folio filed does not appear to be a regular ex parte application because it does not state the order applied for.

That is worth pausing on. A situation with a pre-printed requisition is a situation the Registry anticipates meeting again; ⚠️ but a standard form does not show how often the situation arises. The Registry's own standing complaint is about how the paper is drafted — that it does not state the order applied for — not about the merits.

Who decides. Para. 148 refers the reader to the Court; the requisition refers to an order of the Registrar; and r. 53 — which, unlike those two, is legislation and is quoted above — provides that the application "may be made to the Registrar". The rule governs, and this article says Registrar.

But note what the Guide is. Its own disclaimer governs every sentence sourced to it:

Summary, not a quotation. The Guide's own disclaimer says four things: it is general guidance on non-contentious probate practice; it is not legal advice; it is not meant to be treated as authority on the topic and should not be cited as one; and it does not stand in for the statutes and the case law themselves.

So the Guide is used here as the best published evidence of what the Probate Registry does, and never as authority for what the law is. The law is in the judgments. ⚠️ And its currency has to be flagged. One of the Guide's foundations has moved: it treats Cap. 10 s. 72(2) as making English probate practice applicable here, and s. 72(2) reads as repealed in Cap. 10 (see the England section below). Nothing in the Guide overrides the Ordinance, the Rules or a judgment.

Why the grant is limited. The limitation is what allows a non-contentious officer to act on evidence that could later be contradicted: admitting a copy is provisional, and the order preserves everyone's position if the original, or a better copy of it, turns up later. Two supports, and the first has to be stated carefully. Cap. 10 contains more than one statutory limiting power. s. 18 — "Any grant made to the Official Administrator under this Ordinance may be limited in such manner as the court may direct" — is confined to grants to that officer. But s. 36 closes with a general one: "and every such administration may be limited in such manner as the court thinks fit", over administration the court itself appoints under that section, and Cap. 10A r. 51(a) routes an application for such a grant to the Registrar. s. 37 provides for special administration on top. What none of them is, is a power to limit a grant of probate of a copy will admitted under r. 53 — which is the grant this section is about. ⚠️ So the accurate statement is narrower than "a creature of practice rather than statute", and narrower than "s. 18 is the only limiting power": Cap. 10 gives the court express limiting powers over administration, and the copy-will grant's characteristic form — a grant that lasts only until the original itself, or some better copy, is proved — rests on the Registry's own published documents, Guide para. 148 and the standing requisition, rather than on an express statutory power of that kind. And Cap. 10A r. 8's proviso shows the rules already contemplating that handling an original can destroy it:

Stopping: swearing that there is nothing to rebut with

Guide para. 179 (summarised in the TL;DR above) asks the oath to record both halves: that a reasonable search has failed to produce the will, and that the applicant holds nothing capable of displacing the presumption of destruction animo revocandi. Para. 178 adds:

Summary, not a quotation. Para. 178 adds that an applicant who knows how the will was destroyed must give particulars of the circumstances of the destruction or loss in the oath.

And para. 175 adds a requirement that is easy to miss:

Summary, not a quotation. Para. 175 applies whatever the circumstances of the revocation were. Someone applying for a grant on an intestacy footing must describe the revoked will briefly in the oath — the will itself does not have to be filed — and set out concisely how the intestacy came about.

So even on the stopping branch the affidavit must describe, on oath, the will said to be missing. Stopping is not the same as proceeding as though no will had ever existed.

Underneath both branches sits Cap. 10A r. 13 — the only provision in this article that covers both:

And that duty to account has a matching power, r. 14:

So the affidavit is not necessarily only yours. The Registrar may require one from any person he may think fit — which, on the facts of both judgments, means the attesting solicitor and the people who did the searching. Add r. 5(1): "The Registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction." There is no closed list of what he may ask.

A worked instance

In Lioe the plaintiff swore an affidavit in November 2004 saying that the original of the will could not be found and that the presumption of destruction animo revocandi applied — she took the stopping branch, on oath, in exactly the terms para. 179 requires. After a four-day trial the court held against her and proved the will by the copy her opponents produced. That is what "both branches, one presumption" looks like in practice.

And after s. 17, there is Cap. 10 s. 33

Both re-execution and a codicil require the testator, and the testator has died.

⚠️ One thing has to be said here, because the worked example above already shows it. Section 17 governs how a will that has been revoked may be revived. Whether this will was revoked is the very question in issue. Swearing that there is no evidence to rebut the presumption does not make the presumption true. In Lioe the plaintiff swore exactly that in November 2004, and after a four-day trial the court held against her and proved the will from the copy her opponents produced — the stopping branch was revisited, and reversed. And Cap. 10 s.33(1) provides that "Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration" and, if satisfied, revoke it.

For what stopping actually produces, see our intestacy guide .

The two places the family has not looked: the deed bundle and the bank box

Searching the flat is not the same as searching. The Registry has a pre-printed requisition asking whether the search covered the title deeds of the deceased's residence; and where the will was in a bank safe deposit box, the Ordinance provides a route to the original itself, not only to a copy.

The title-deed bundle

Common Requisitions §4.12:

Summary, not a quotation. §4.12 asks the applicant to confirm in writing whether the will search included a search among the title deeds of a property the deceased had used as a residence, and if so whether any will was found.

And Guide para. 169:

Summary, not a quotation. Para. 169 directs practitioners to take all reasonable steps to ensure that an intended applicant has made a thorough and diligent search among the deceased's belongings — including the title deeds where there is landed property in the estate — and all necessary inquiries, including of the deceased's relatives and of the Law Society.

This deserves its own sentence: a family that has "searched the flat" has generally not searched the deed bundle, because the deed bundle is usually not in the flat — it is with a bank or a firm of solicitors. It is the most concrete thing in this article and it can be done this week.

⚠️ On the Law Society limb: the Guide directs practitioners to make that inquiry.

The bank safe deposit box: a Part of eleven sections, of which the public page names seven and describes two

The Judiciary's public probate page, item 6.1:

Summary, not a quotation. Item 6.1 describes checking what the deceased left and, where the deceased rented a bank safe deposit box alone or jointly, the procedures in the Home Affairs Department's pamphlet for inspection, inventory and removal of the deceased's will if there is one.

And the Home Affairs Department names the statutory range and the two instruments:

Summary, not a quotation. The Department states that the Director of Home Affairs, under authority delegated by the Secretary for Home and Youth Affairs, may on application issue a Certificate for Necessity of Inspection of Bank Deposit Box (the certificate for inspection) and an Authorization for Removal from Bank Deposit Box (the authorization for removal), and it identifies ss. 60C to 60I of Cap. 10 as the relevant provisions.

⚠️ The range the Department names is not the Part. Part VA of Cap. 10 runs ss. 60A to 60K — eleven sections. The Department names ss. 60C to 60I because those are the seven that concern the box itself. The four it does not name are not irrelevant to this reader: s. 60A defines every term the seven use, s. 60B is the parallel certificate for releasing money from a sole-name bank account, and ss. 60J and 60K create an offence and its exemption that bite on the family while it is still searching. Steps 1 to 9 below are the Department's seven; step 10 is the four it does not name.

Here is the sequence, with what happens when each limb fails.

• Who may apply, and the date boundary. Cap. 10 s. 60C: the Secretary may issue a certificate for inspection where he is satisfied that a deceased person who dies on or after 11 February 2006 kept a solely or jointly rented safe deposit box at a bank immediately before death. The applicant must be an executor, a person who intends to apply for a grant, or (for a jointly rented box) a surviving renter. Outside those categories, or where the death was earlier, this route does not apply.
• What the inspection is for. s. 60D(1)–(2): the bank shall allow the certificate holder to inspect, in the presence of public officers authorised by the Secretary and a bank employee, only for two prescribed purposes — ascertaining whether there is a will or similar instrument in the box, and preparing an inventory.
• If the holder is a named executor. s. 60D(6): the bank shall allow him to take possession of the will itself, after a copy of it is placed in the box.
• If s. 60D(4)'s three-limb gate is satisfied. This is the step usually described as "the original goes back in the box". *It is not the simple opposite of step 3 — not merely if he is not a named executor.* s. 60D(4) has three cumulative limbs:

> (4) If— (a) a will of the deceased concerned or similar instrument is found in a safe deposit box upon an inspection made pursuant to a certificate for inspection; (b) (i) the holder of the certificate is not a surviving renter of the safe deposit box; and (ii) (A) the holder of the certificate is not the person or one of the persons named in the will or instrument as the executor or executors of the deceased concerned; or (B) no executor is named in the will or instrument; and (c) the certificate does not contain a statement of the Secretary referred to in subsection (3)(d), the employee of the bank shall immediately— (d) make a copy of the will or instrument; (e) put the will or instrument back into the safe deposit box; (f) close or seal the box; and (g) hand over the copy of the will or instrument to the public officers present.

⚠️ Read (b)(i) and (c). s. 60D(4) does not reach a holder who is a surviving renter of the box, and it does not reach a holder whose certificate carries the Secretary's s. 60D(3)(d) statement — the statement that a will was found but is invalid, or names no executor, or names executors who cannot be located, refuse, have died or are otherwise incapable. Where either is the position, this step is not what happens. For those two applicants s. 60D(4) does not reach them at all, so "the original goes back in the box" is not their position. The Home Affairs Department describes the ordinary case:

Summary, not a quotation. The Department describes the same sequence: where a will or similar instrument is found on inspection and the certificate holder is an executor named in it, the bank allows him to remove it once a copy has been placed in the box; in other cases the bank copies it, returns the original to the box, and gives the copy to the public officers present — and it records that keeping that copy for six years is a statutory duty of the Secretary for Home and Youth Affairs.

• The route to the original. s. 60E: once an inventory has been prepared under s. 60D(3), the Secretary may — on an application by an executor, by a person who intends to apply for a grant, or by a surviving renter — and on being satisfied that a document included in the inventory "is necessary for or relevant to an application under section 15 or 24(1) or an application for sealing of a probate or letters of administration under section 49", issue an Authorization for Removal specifying that document. s. 60E(4) then requires the bank to allow the holder to take possession of it, and s. 60E(5) provides that where the document is a will, the bank "shall only allow the holder of the authorization to take possession of it under subsection (4) after placing a copy of it in the safe deposit box." ⚠️ s. 60E(1) and s. 60E(2) are two parallel routes, not one route with an extra layer, and the section says so.

> (3) For the avoidance of doubt, an authorization for removal can be issued under both subsections (1) and (2).

Under (1), the applicant may be an executor, a person who intends to apply for a grant, or — s. 60E(1)(a)(ii)(C) — a surviving renter of a jointly rented box, in his own right, with no consent requirement at all. What (1) requires is the Secretary's satisfaction under (1)(b): either that the document is necessary for or relevant to an application under s. 15, s. 24(1) or s. 49, or — a second limb — that the document "belongs prima facie to a person other than the deceased who has an urgent need for the document" and that removing it will not prejudice anyone's legitimate interest in the estate.

Under (2), which is a different route, the box must be a jointly rented box with survivorship arrangement, the applicant must be a surviving renter, and he must satisfy the Secretary by affidavit that the document or article belongs to him. Only there, and only where he is neither an executor nor an intending applicant, does the written consent of one of them come in. The consent requirement is a feature of route (2), not a general condition on surviving renters. If none of that is satisfied, step 6 may be available — but only in the branches described there.

• A copy from the Secretary — available only where a copy was in fact made, and on its own clock. ⚠️ This step has to be read as part of the whole statutory chain. What s. 60D(10) can supply is that copy — the copy made by the bank employee under s. 60D(4)(d) and kept by the Secretary under s. 60D(5)(a) for a period of 6 years after it is made. It therefore exists only where s. 60D(4) applied. In the two branches step 4 excludes — a certificate holder who is a surviving renter, and a certificate carrying the Secretary's s. 60D(3)(d) statement — the premise for a s. 60D(5) copy may never arise, and this is then not a fallback at all. Where the copy does exist, s. 60D(10) provides that the Secretary may, on application, on being satisfied that the applicant intends to apply for a grant and that the will is necessary for or relevant to that application, and upon payment of a fee specified by the Secretary, provide a copy of that copy. The six years run from the making of the copy — a date held by the Department, not the date of death. ⚠️ On who is eligible, there are two layers. The first layer is the subsection's own wording: s. 60D(10)(b)(i) asks only that "the applicant intends to apply for a grant". The second is administrative: the certificate, the authorization and the copy are all issued by the Home Affairs Department under its current published forms and requirements. Eligibility is bounded by the statutory text and those current administrative requirements.

And there is a second, wider provision — s. 60D(11), which is about a copy of the inventory rather than of the will:

> (11) Where an inventory has been prepared under subsection (3) in respect of a safe deposit box, the Secretary may— (a) upon an application made in a manner specified by him; (b) upon being satisfied that the applicant— (i) has a legitimate interest in the estate of the deceased concerned; or (ii) (in the case of a jointly rented safe deposit box) is a surviving renter of the safe deposit box; and (c) upon payment of a fee specified by the Secretary, provide to the applicant a copy of the copy of the inventory kept by him under subsection (8).

*That one is open to anyone with "a legitimate interest in the estate", and to a surviving renter — a materially wider class than the will-copy route in (10).*

• A second clock, binding a different person. s. 60I: a surviving renter of a jointly rented box with survivorship arrangement may exercise his contractual right of access only subject to the Ordinance during the 12 months after the deceased renter's death, or before an inventory is prepared; and "It shall be the obligation of the surviving renter to satisfy the bank as to the date of death of the deceased renter concerned." This 12 months and the 6 years above are different clocks, running from different events and binding different people.
• The condition machinery — and a divergence between the two authentic texts. In the authentic English text, ss. 60D(1), 60D(6) and 60E(4) are each expressly "subject to the condition attached to the certificate under section 60G(1) (if any)". ⚠️ The authentic Chinese text of s. 60E(4) does not say the same thing. Where the Chinese ss. 60D(1) and 60D(6) attach the condition to the 證明書 — the certificate — the Chinese s. 60E(4) attaches it to the 授權書, the authorization for removal, which is a different instrument. Both language texts are equally authentic, and which instrument carries the endorsement could matter in practice. s. 60G(1) lets the Secretary attach such condition as he thinks fit; s. 60G(2) provides that he shall not do so if it may likely prejudice the legitimate interest of any person in the estate concerned; s. 60G(3) requires the condition to be endorsed on the certificate.
• Why the counter staff will not improvise. s. 60H protects a bank and its employee from civil liability for the statutory acts under ss. 60B(4), 60D(1), (4) and (6) and 60E(4), provided the employee acted in good faith and exercised due care. The protection is tied to doing the statutory steps — which is the mechanism behind the refusal to depart from them.

• The four sections of Part VA the Department's range does not name — and one of them runs a clock against you. s. 60A is the Part's interpretation section: jointly rented safe deposit box with survivorship arrangement, surviving renter, certificate for inspection and authorization for removal are all defined there, and steps 1 to 9 use every one of them. s. 60B is the parallel certificate for releasing money from a deceased's sole-name bank account for funeral expenses and dependant maintenance — a different instrument, covered in the grant of probate guide. ss. 60J and 60K are the ones that matter to a family that is still searching. s. 60J(3):

> (3) Subject to section 60K(9), any person who, being neither the executor of a deceased person nor the person entitled in priority to the administration of the estate of a deceased person, takes possession of or in any way administers— (a) any part of the estate; or (b) any part of the income of any part of the estate, without— (c) lawful authority or reasonable excuse; or (d) first filing an application in respect of the estate— (i) to the Official Administrator for the exercise of his power under section 15; (ii) for a grant under section 24; or (iii) for sealing of a grant under section 49, supported by an affidavit exhibiting a schedule, or a corrective affidavit exhibiting an additional schedule, setting out such part of the estate, commits an offence.

ss. 60J(6) and (7) put exposure on the executor, or the person entitled in priority — but they are built differently, and the difference matters. s. 60J(6) requires both limbs before there is an offence: dealing with the estate within the prescribed period and failing to submit the application within that same period. s. 60J(7) is about dealing after the period has expired without first submitting the application. Both subsections as enacted:

> (6) Subject to section 60K(9), any executor of a deceased person or any person entitled in priority to the administration of the estate of a deceased person who— (a) takes possession of, or in any way administers, any part of the estate or the income of any part of the estate within the prescribed period commencing on the date on which the deceased dies; and (b) fails to submit within the prescribed period an application in respect of the estate— (i) to the Official Administrator for the exercise of his power under section 15; (ii) for a grant under section 24; or (iii) for sealing of a grant under section 49,supported by an affidavit exhibiting a schedule, or a corrective affidavit exhibiting an additional schedule, setting out such part of the estate,commits an offence.

> (7) Subject to section 60K(9), any executor of a deceased person or any person entitled in priority to the administration of the estate of a deceased person who takes possession of, or in any way administers, any part of the estate or the income of any part of the estate after the expiry of the prescribed period commencing on the date on which the deceased dies without first submitting an application in respect of the estate— (a) to the Official Administrator for the exercise of his power under section 15; (b) for a grant under section 24; or (c) for sealing of a grant under section 49,supported by an affidavit exhibiting a schedule, or a corrective affidavit exhibiting an additional schedule, setting out such part of the estate commits an offence.

and how long the prescribed period is, subsection (8) supplies:

> (8) In subsections (6) and (7), prescribed period (訂明期間)—  (Amended E.R. 5 of 2020) (a) in a case in which— (i) an application to the Official Administrator for the exercise of his power under section 15; or (ii) an application for a grant under section 24, is made, means 12 months; (b) in a case in which an application for sealing of a grant under section 49 is made, means 18 months.

and the penalty is not nominal:

> (9) A person who commits an offence under subsection (2), (3), (6) or (7) shall be liable on conviction to— (a) a fine at level 3; and (b) an additional penalty equal to the value of— (i) the relevant part of the relevant estate; or (ii) the relevant part of the income of the relevant part of the relevant estate, as the case may be.

s. 60K is the exemption s. 60J(3), (6) and (7) are expressly subject to — a confirmation notice for a small money estate:

> (2) The Secretary may— (a) upon an application by the executor of a deceased person or the person entitled in priority to administer the estate; and (b) upon being satisfied by an affidavit of the applicant that— (i) all properties beneficially owned by the deceased as at the date of his death are money not exceeding $50,000 in aggregate; and (ii) the deceased did not hold any property as trustee or as the manager of a Tso or Tong as at the date of his death, issue to the applicant a confirmation notice in respect of the estate.

⚠️ About s. 60J. The offence exists, it reaches the persons described above, and the Ordinance fixes a period. Whether a particular act is intermeddling depends on the facts. "Lawful authority or reasonable excuse" is a question of fact and the section is a criminal provision. ⚠️ Those figures carry the powers that move them. "11 February 2006" in s. 60J(1)(a) and s. 60K(1)(a) is carried by (Amended L.N. 210 of 2005) — it was set by Legal Notice, not fixed in the enacting text. The $50,000, the level 3 fine, and the 12 and 18 months are as they stand in the Cap. 10 text; a fine at level 3 is set by Cap. 221 Schedule 8.

The fee: both the Ordinance and the departmental page say a fee is payable and neither states a figure.

One small inconsistency worth knowing. The departmental page names the Secretary for Home and Youth Affairs in the retention sentence and the Director of Home Affairs in the retrieval section. Cap. 10 s. 60D(5)(a) puts the six-year duty on the Secretary, and the department itself says the Director acts under authority delegated by the Secretary. Principal and delegate, not a contradiction.

A third party who will not produce it, and why family agreement does not help

Getting the relatives to sign a consent proves nothing in law; and where the will really is in somebody else's hands, the Probate and Administration Ordinance contains a power to order production — exercisable whether or not any proceedings are pending.

Consent proves nothing

Guide para. 170:

Summary, not a quotation. Para. 170 provides that a testamentary instrument that is found must be properly dealt with under the procedure governing the situation before an applicant can swear to the deceased's intestacy, and that this holds whether or not those interested in the instrument agree about how it should be handled. It adds that their agreement proves nothing, and that no one's consent can turn a will into something that is not a will.

So the question has to be turned around. Not who has to agree but why agreement does not help you, and who actually decides. The lay model is that if the family agrees, the family decides. The Registry decides, and family agreement is not currency.

On who decides what, Lioe para. 93 draws a clean line:

Where the will is with a third party

Cap. 10 s. 7, all three subsections:

Three features are worth naming. No proceedings need be pending — subsections (1) and (3) both say so. Possession is not required for every limb: where possession cannot be shown but there are reasonable grounds to believe the person has knowledge of such a paper, the court may direct him to attend for examination. And subsection (3) puts the power to issue a subpoena in the hands of the Registrar — that is, on the Registry side, without an action being commenced.

The other side of the same coin

England's Non-Contentious Probate Rules 1987, r. 54(4), expressly allows notice to be directed to those who would be prejudiced:

(The bracketed markers are amendment annotations in the published revised text and are reproduced as they appear.) Hong Kong's r. 53 contains no equivalent; whether notice would be required in a particular case is a question for a solicitor.

A will that is torn, burnt, or missing a page

A damaged will runs down two different branches. An apparent alteration is governed by Cap. 30 s. 16 and Cap. 10A r. 12 — and s. 16(1A) provides that the original words stand so long as they "can be discovered by any means". But tearing, burning or removing part of a will may also engage Cap. 30 s. 13(1)(d), the destruction limb, on which everything turns on whether there was an intention to revoke.

The Judiciary's public probate page runs to 19 Parts and not one of them addresses a will that is damaged, destroyed, mislaid or unavailable, or the presumption of revocation. What that shows is narrower than it looks: the general probate landing page does not explain this in plain language. ⚠️ An absence from one page cannot establish that no official route exists — and one does, as the rest of this section uses: Cap. 10A r. 12, Guide paras. 136–141, and the specified form the Guide directs to. This branch's core rule is statutory and exists in both authentic languages, which is more than can be said for the branch this article is named after.

First, the substantive rule. Cap. 30 s. 16:

Subsection (2) is the cure, and it is the one thing in this whole article that you can check on the paper in your hand: if the testator and each required witness signed in the margin opposite or near the alteration, or at the foot of a memorandum referring to it, the will with the alteration is deemed duly executed.

Second, the mandatory procedural half. Cap. 10A r. 12 is cast in mandatory terms and directed at the Registrar:

Third, what the Registry publishes about its own practice. Guide para. 136 deals with plight and condition and the unusual features that must be accounted for — obliterations, interlineations, corrections, alterations, clip marks, pin holes and punch holes — on a specified form sworn by the person who caused them; para. 136A lists seven categories of item commonly attached to an original will that must be detached, with an affidavit of plight and condition exhibiting copies; paras. 137–138 introduce a prima facie presumption that alterations were made after execution (⚠️ a different presumption from this article's); paras. 139–140 provide that where no affirmative evidence can be obtained, the alterations are excluded from probate; and para. 141 explains the fiat copy:

Summary, not a quotation. Para. 141 explains that where a will contains alterations not admissible to proof, a copy prepared in accordance with r. 9 — the fiat copy — is required, reproducing the will as it stood at execution: obliterations are put back wherever they remain legible, anything added is left out, and where a word has been struck through so thoroughly that nothing can be made out, the copy simply carries a blank.

Fourth, what this looks like from the other end. In Han Yi, the solicitor who drafted the will described the advice she gave her client in 2003:

⚠️ That last clause is her advice as the judgment records it, not a statement of law. What the rules actually provide is r. 12(1) above — the Registrar shall require evidence and shall give directions as to the form in which the will is to be proved — which is a requisition and a direction, not voidness.

Fifth, law reform, as an opinion and not as law. The Law Reform Commission's 1990 report, para. 3.25, took the view that where a testator has removed a portion of the will, that is tantamount to a partial revocation by destruction. ⚠️ That is a 1990 recommendation, not the law.

Is the estate frozen, and can you do this yourself?

*An estate is not necessarily frozen while a probate dispute runs — the court can appoint an administrator pendente lite, but not automatically; and doing it yourself is a named status in the Rules, which shuts the moment the matter has to go to court by motion or by action.*

A grant pendente lite

At an interlocutory stage of HCAP 8/2008 — the same probate action later tried in Han Yi — Deputy High Court Judge H. Wong SC handed down Reasons for Decision on 2 September 2009 on an application to appoint an administratrix pendente lite:

What was actually ordered shows the shape of the thing. The appointment was limited to a stated purpose — protecting and preserving the estate's interest in one named business — "pending the determination of the claim in the present Probate Action"; it authorised the administratrix "to bring and defend legal proceedings in the name of the Deceased or the Estate with the view to getting in, protecting, and preserving the Estate limited to the Purpose"; and it was made on the applicants' undertaking to indemnify the estate against damages and costs. Costs came out of the estate, with the applicants' share reduced by 30 % because part of the summons was withdrawn at the last minute.

⚠️ The limit, in the same paragraph: every limb of that presupposes a probate action already pending. Cap. 10 s. 40, the statutory power behind a grant pendente lite, is confined in its own words to where legal proceedings "are pending". So it is not an answer to "we would rather the estate were not frozen while we keep searching".

But that question is not unanswered. Two provisions in Cap. 10 and Cap. 10A reach an estate with no probate action running. The first is Cap. 10A r. 51:

*Limb (b) is a grant of administration ad colligenda bona — administration for getting in and preserving the estate — and, unlike s. 40, nothing in it requires a pending action.* Limb (a) routes an application under Cap. 10 s. 36 to the same officer, and s. 36 is the second provision:

Two things in it. The appointing test includes "where it appears to the court to be necessary or convenient to appoint some person to be the administrator" — which, unlike s. 40, says nothing about pending proceedings. And the closing words, "and every such administration may be limited in such manner as the court thinks fit", are a general statutory limiting power, which matters again in the section on why a copy-will grant is limited.

Whether it is "necessary or convenient" is a question of fact for the court, and ad colligenda bona is not defined in the Rules. Nor is either route a way of leaving the estate alone: Cap. 10 s. 60J makes dealing with an estate without authority an offence, on a clock — see the safe-deposit-box section above.

Acting in person: what the Rules say

Doing it yourself is a defined status, not a concession. Cap. 10A r. 2(2):

And r. 4 draws four lines around it:

The Judiciary's public page repeats the last of those to the public and adds that the primary obligation to choose and complete the correct specified forms rests on the applicant.

Why r. 4(3)(a) is the most important line in this article. It is the cost step-change, stated in the Rules' own words: the moment it becomes necessary to bring the matter before the court on motion or by action, a personal application is not received or proceeded with at all. And all three judgments in this article are cases that had crossed that line — a four-day trial, an eight-day trial and an interlocutory application. (The day counts are the judgments' own headers: Lioe, "Date of Hearing: 1 to 3 and 5 December 2008"; Han Yi, "Dates of Trial: 23 to 27; 30 & 31 May 2011 and 14 June 2011".)

⚠️ Contentious probate runs under a different body of rules from the Non-Contentious Probate Rules. For the ordinary application, the filing fee, forms and procedure, see our grant of probate guide .

What it costs and how long it takes

The Judiciary publishes processing times for a grant, set out below. The thing that matters most: the price of this decision is evidence and exposure, not dollars.

The times the Judiciary does publish, each with its own conditions (this site's summary of the Judiciary's Probate Registry page):

• A simple and straightforward case: usually about 5 to 7 weeks on average. ⚠️ The condition travels with the figure: the Judiciary states that a grant issues once the applicant has met all legal requirements and answered all requisitions to the Registrar's satisfaction, and that where the application is not simple and straightforward, or the nature of the estate is complicated, the time required may be longer.
• An application submitted with the help of the Probate Registry's Public Application Section: about 5 weeks upon payment of all court fees and once all requisitions have been complied with. (The Judiciary sets this out under Performance Pledges.)
• An application filed by a solicitor (same Performance Pledges): a letter of requisitions, if any, to the solicitor within 28 working days after the application is filed; and the grant issued within 28 working days upon payment of all court fees and once all requisitions have been complied with.
• Amending a grant already issued — for example when further assets surface: usually about 4 to 8 weeks after payment of the relevant fee, if any, and longer where the Registrar raises requisitions.

⚠️ What those four numbers measure has to be stated, because not one of them runs from the death to the grant. Three of the four run expressly from the moment all court fees are paid and all requisitions are answered — so the time spent answering requisitions sits outside the figure, and in a lost-will case that is often the longest part of it. And every one of them is a figure for an ordinary grant. The Judiciary's Probate Registry page, https://www.judiciary.hk/en/court_services_facilities/probate.html, publishes no separate time standard for a lost or damaged will, that is, for an application for an order under Cap. 10A r.53; and the Judiciary itself says a case that is not simple and straightforward may take longer. So the 5-to-7-week figure is not the one to expect in this situation.

Three things with no published figure:

• A time standard written for a lost or damaged will. The figures above are for an ordinary grant; the Judiciary publishes no pledge written for a r.53 application. And one further point, because it is easily mistaken for "no processing time is published anywhere": the Judiciary's paper to the Legislative Council Panel on Administration of Justice and Legal Services (LC Paper No. CB(2)1718/2025(04), 15 September 2025) reports probate in its caseload and disposal Annexes and in none of that same paper's waiting-time tables — but that paper defines court waiting time as the period from listing or filing to the hearing, which measures cases going to court and is not a Registry processing time at all. ⚠️ That does not mean no official source publishes a processing time: the Registry's own page does, and those figures are set out above.
• The departmental fee for a copy of a will. The Ordinance and the departmental page each say a fee is payable and neither states an amount.
• Solicitors' fees.

*The caseload series that is published, with its scope limit and its trough. From the same paper: probate applications received in the Court of First Instance rose from 21,005 (2019) to 28,335 (2024) — +34.9 %. ⚠️ But the series contains a pandemic trough: 2020 fell to 16,521, 21.3 % below 2019, and measured from that trough the rise to 2024 is +71.5 %. Receipts exceeded disposals in five of the six full years. ⚠️ This is a caseload gap, not a waiting time. And 28,335 is all* probate applications of every kind: no published figure says how many involve a lost or damaged will.

*The two durations that are primary-sourced, bounded as what they are. Lioe*: the testator died on 3 January 1981, the probate action was commenced in 2005, and judgment was given on 23 January 2009. Lam J's own opening paragraph:

Han Yi: the testator died on 4 March 2008 and judgment was given on 5 August 2011 — three years and five months. ⚠️ Neither figure is the length of an action from commencement to judgment, and each has to be labelled by its own endpoints. Lioe's "more than two decades" runs from the 1981 death to the 2009 answer; the judgment's own para. 1 records that the probate action "was only commenced in 2005", so the litigation itself ran about four years. Han Yi's three years and five months is death to judgment. Neither is a Registry processing time, and neither is typical.

Free legal advice. Duty Lawyer Service, Annual Report 2025, Appendix C-4 (bilingual), calendar year 2025: of 6,709 Free Legal Advice Scheme cases, category (D), which the Service labels 遺產管理 / Estate Administration, accounted for 679 — 10.1 % on its own published figures — the fourth largest of ten categories, after Miscellaneous (1,763), Commercial and property disputes / simple contract matters / loans (1,167) and Matrimonial (954). ⚠️ "Estate Administration" is the Service's own category and covers every estate question brought to a District Office session. It is not a count of lost-will cases.

Why a session of that kind cannot resolve this question is in the Scheme's own description:

Summary, not a quotation. The Scheme states that the lawyers giving advice are qualified lawyers who join on a volunteer basis, that each lawyer sees around five cases an evening with 20 to 30 minutes for each, and that the first session begins at about 6:25 pm and the last at about 7:45 pm.

The Scheme describes itself as offering preliminary, one-off advice only: on its own account the volunteer lawyers are not expected to analyse the merits fully or to supply a complete solution, and its published refusal criteria include an applicant who cannot produce the relevant documents for the lawyer to look at, and cases turning on complicated legal issues that would need documents to be studied in detail. (Summary.)

Legal aid. The Legal Aid Department's published figures are linked to one another. The Ordinary Legal Aid Scheme financial eligibility limit is HK$452,320; the Supplementary Scheme admits financial resources exceeding HK$452,320 but not HK$2,261,600 — exactly 5.0 × the first figure; the capital disregard at age 60 is HK$452,320 — exactly the limit; the maximum contribution is HK$113,080 — exactly 25 % of it; and the contribution band floor is HK$56,540 — exactly one eighth of it. Contributions run in seven bands from 2 % to 25 %, HK$1,131 to HK$113,080, payable in some cases by instalments, normally not more than six monthly instalments.

⚠️ These figures are revised: the Department states that the personal allowances used in computing financial resources are revised each February against Consumer Price Index (A), and at five-yearly intervals against whichever Household Expenditure Survey is then the most recent. The figures here are as published by the Department.

⚠️ None of the Legal Aid Department's published pages says whether a standalone non-contentious application for a grant of representation falls within scope. What is published is an Ordinary Scheme scope list of named case types that does not include probate — *but that list is expressly non-exhaustive — it is introduced by wording that says the types of cases include those named, rather than that they are limited to them, so probate's absence from it is not exclusion — and a Supplementary Scheme list of named claim types which reads as closed and also omits probate. An individual application is decided by the Legal Aid Department.*

So what does the decision actually cost? Not dollars — evidence and exposure:

• On the copy-will branch, the propounding party carries the burden of proving the will was not revoked, and the Registry's own pre-printed requisition anticipates a recurring defect by standing form — how the application is drafted, not stating the order applied for — rather than the merits. ⚠️ That does not make it "the most common": no published source gives a frequency.
• On the intestacy branch, the applicant swears that there is no evidence to rebut the presumption. ⚠️ s. 17 bars reviving a will that WAS revoked; it does not settle whether this one was, and Cap. 10 s.33 lets the court revoke a grant that ought not to have been made.

England, and why Hong Kong has no wills registry

England's rule writes into the rule itself what has to be proved; Hong Kong's does not. But when England reviewed the same presumption in 2025 it decided against putting it into statute — because how the presumption operates in any given case is very specific to the facts.

The two rules side by side

England's Non-Contentious Probate Rules 1987, r. 54(3):

Hong Kong's r. 53 says only that the application may be made to the Registrar. But it receives more: a copy, a completed draft, a reconstruction, or other evidence of its contents — four routes to England's two — plus the fifth route in its proviso, where the will is held by a court or an official of a government outside Hong Kong and a duly authenticated copy may be admitted with no order at all.

So the accurate statement is: Hong Kong's rule receives more and tells you less. The half about what must be proved is no longer missing from Hong Kong law — it is in Lioe para. 21. What remains outside the rule is the procedural instruction: which order to ask for, and what the affidavit must cover. That lives only in the Guide and the requisitions — in a document that disclaims its own authority.

Has England changed the rule?

It is tempting to write "even England has moved on". The opposite is true. The Law Commission of England and Wales, Modernising Wills Law (Law Com No 419, HC 861-I, ordered printed 15 May 2025), reviewed this doctrine and declined to reform it:

That is also why outcomes are hard to predict: how the presumptions operate depends heavily on the facts of each case. The same report also records the Commission's view that, despite the presumptions, courts will not lightly set aside a valid will in the testator's custody simply because it cannot be found.

(Both Hong Kong judgments apply Welch v Phillips, Sudgen v Lord St Leonards, Allan v Morrison and Rowe v Clarke directly.)

Why the searching falls on the family

In 1990 the Law Reform Commission recommended against statutory wills registration. The Commission recommends; it is neither the Government nor the legislature. Law Reform Commission report, paras. 5.4–5.5:

Summary, not a quotation. At paras. 5.4 and 5.5 the Commission records that on general grounds it does not favour the concept of wills registration: a will is a private family matter; depositing and registering wills would introduce a layer of officialdom nobody had asked for and would erode the confidentiality of the document; and a testator's inherent right to change his will on impulse should not be obstructed. Its recommendation is that wills should not be registrable, and that the expense of registration would not be justified given how satisfactorily an informal arrangement run by the Law Society of Hong Kong was working — the Society circulating deceased clients' names to its whole membership and asking whether anyone held a will executed by them.

That is the mechanism: the confidentiality the Commission wanted preserved in 1990 is paid for at death by the people doing the searching. r. 13's duty to account, para. 169's thorough and diligent search, §4.12's requisition about the deed bundle — all of them are the mirror image of that choice.

Two things that happened, pointing opposite ways

One: a section recommended in 1990 and never enacted. The same report, para. 4.6:

Summary, not a quotation. At para. 4.6 the Commission says it would like a clear statement that extrinsic evidence is admissible on the manner in which a will is executed, revoked or altered. It notes Ungoed-Thomas J's observation in Re Colling [1972] 3 All ER 729 that s. 9 of the Wills Act 1837 — on which the present s. 5 is based — has the requirement of oral evidence embedded in it, and recommends taking that one step further, so that the testator's own statements, oral or otherwise, become admissible. Its recommendation is a new s. 17A, to sit after s. 17, admitting extrinsic evidence — a statement by the testator himself, whenever he made it, expressly included — on how a will was executed, revoked or altered. The drafted provision is clause 6 of the Bill at Annexure 6.

That is precisely the evidence a lost-will applicant most wants, and precisely what the Registry's own factor list invites, its worked example being a declaration by the testator of unchanged affection or intention. The Wills Ordinance contains no s. 17A. ⚠️ The explicit non-claim: this does not establish that Hong Kong law excludes such evidence, nor that no express provision admits it. Cap. 8 s. 47(1) is an express provision, and it points the other way:

So the accurate statement is narrower: what the Wills Ordinance lacks is the specific s. 17A the Commission drafted — a provision admitting extrinsic evidence, including the testator's own statements, on how a will was executed, revoked or altered. It is not the case that no provision admits such evidence: in civil proceedings Cap. 8 s. 47(1) makes hearsay admissible unless a party objects and the court is satisfied that exclusion is not prejudicial to justice, and Cap. 30 s. 23B — added by the same 56 of 1995 — expressly admits extrinsic evidence of the testator's intention, though for interpretation only, which is why it does not fill the s. 17A gap. And in fact both judgments in this article received a great deal of such evidence.

Two: a provision recommended for enactment in 1990 and repealed in 2024. Para. 19.2 of the same report recommended that the practice and procedure then in force in England, and applicable in Hong Kong through Cap. 10 s. 72(2), should be specifically enacted here as Hong Kong legislation. What happened instead ran the other way: in Cap. 10, s. 72(2) reads "(Repealed 21 of 2024 s. 63 )".

⚠️ The boundary: that repeal removed a procedural fallback to English registry practice. It did not touch the presumption of revocation. How do we know? Because the two judgments relied on here were given in 2009 and 2011 — before the repeal — and neither reasons from s. 72(2); both apply common-law authority directly.