Making a Will in Hong Kong

The question people actually ask

"My will only has one witness — is it dead?"

The usual answer is yes. That answer is incomplete, and the incompleteness sits in the very next subsection of the very same section. Section 5(1) of the Wills Ordinance (Cap. 30) does require two witnesses. Section 5(2), immediately after it, is a judicial dispensing power. Most guides stop reading at subsection (1).

Everything below is written from the Ordinance text. Cap. 30 is consolidated at 18 August 2024 (s.5(1) was amended by 21 of 2024 s.78).

What a will actually does

Effect first, formalities after.

One: it disposes of what you own when you die. Section 3: "A person may by will, executed in accordance with this Ordinance, dispose of all property to which he is beneficially entitled at the time of his death and which on his death devolves on his personal representatives." Note both qualifiers — "beneficially entitled" and "devolves on his personal representatives". Anything that passes outside the estate to a nominated beneficiary is, by that wording, outside the reach of the will.

MPF: the Ordinance does not give a clean answer either way. Listing MPF flatly as property passing outside the estate is too simple, and so is the opposite assertion, that MPF is simply inside the estate. The Mandatory Provident Fund Schemes Ordinance (Cap. 485, consolidated 24 August 2025), s.15(4): "When a member of a registered scheme has died, and any of the member’s accrued benefits are held in the scheme, the approved trustee of the scheme must pay those benefits as a lump sum—", paragraph (a) "to the member’s personal representatives; or", paragraph (b) "if there are no personal representatives of the member’s estate or if they are unwilling to act, to such person, or to a person of such class, as is specified in the regulations." Note what that subsection is: a direction to the trustee about whom to pay, with two routes built into it — a default route through the personal representatives, and a paragraph (b) route that never touches the estate at all.

And the section immediately after it has to be read too. Section 16, headed "Protection of accrued benefits", provides at (1): "No part of any accrued benefits in a registered scheme in respect of a scheme member shall be taken in execution of a judgment debt or be the subject of any charge, pledge, lien, mortgage, transfer, assignment or alienation by or on behalf of the scheme member and any purported disposition to the contrary is void." Section 16(1A): "To avoid doubt, if a scheme member is adjudicated bankrupt, the right or entitlement of the scheme member to any accrued benefits in a registered scheme is excluded from the property of the scheme member for the purposes of the Bankruptcy Ordinance (Cap. 6)." Section 16(2) then confines both: "Subsections (1) and (1A) apply only to accrued benefits derived from mandatory contributions."

Where that leaves the text. Cap. 30 s.3 requires two things at once — beneficial entitlement at death and devolution on the personal representatives. Cap. 485 s.15(4)(a) speaks to the second in the default case only; s.15(4)(b) expressly provides an alternative that bypasses the estate. Whether accrued benefits are property to which the member was "beneficially entitled at the time of his death", and whether a disposition of accrued benefits made by the member in a will is caught by the words "any purported disposition to the contrary is void" in s.16(1), are questions neither Ordinance answers on its face. This article goes no further than the text does (see item 9 of the closing list). Whether a given insurance policy falls on one side or the other likewise depends on that policy and its own statutory regime, which is not a Cap. 30 question.

Two: it speaks as at your death, not as at your signature. Section 19: "Every will shall, with reference to the property comprised in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will." So "all my property" means all the property you own when you die, not only what you owned on signing day.

Three: nobody has to be told. Section 8: "Every will executed in accordance with section 5 shall be valid without any other publication thereof." No registration, no reading, no announcement.

Four: "will" is defined more broadly than you would guess. Section 2: "will (遺囑) includes a codicil and any other testamentary instrument or act, and testator (立遺囑人) shall be construed accordingly."

Five: if a child dies before you, the gift does not necessarily fall into residue. Section 23, headed "Gifts to children or other issue who leave issue living at the testator’s death", subsection (1): "Where— (a) a will contains a devise or bequest to a child or remoter descendant of the testator; and (b) the intended beneficiary dies before the testator, leaving issue; and (c) issue of the intended beneficiary are living at the testator’s death, then, unless a contrary intention appears from the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death." Section 23(2) does the same for class gifts; s.23(3) directs that issue take through all degrees according to their stock; s.23(4) treats "a person conceived before the testator’s death and born living thereafter" as living at the death. In practice: the share left to a child who predeceases you leaving children of their own passes by default to those grandchildren, not into residue — unless the will shows a contrary intention.

Related, section 23C: where a will gives property to a donee "in terms which in themselves would give an absolute interest to the donee, but by the same instrument purports to give any other person an interest in the same property, it shall, unless a contrary intention is shown, be presumed that the gift to the donee is absolute notwithstanding the purported gift to the other person."

Who can make one

Age 18 — but the figure is not in Cap. 30. Section 4(1) of Cap. 30 says only: "Subject to subsection (2), no will made by a person who has not attained full age shall be valid." What makes full age 18 is the Age of Majority (Related Provisions) Ordinance (Cap. 410, consolidated 13 December 2018), s.2(1): "As from the commencement of this Ordinance a person shall attain full age on attaining the age of 18 years." (The eLegislation commencement marker after "commencement" is omitted from the quotation. That commencement date is 1 October 1990.)

Three exceptions for those under full age — including a married person. Section 4(2): "A married person, a person in actual naval, military or air force service, and a mariner or seaman at sea, may make a valid will and may validly revoke a will even though he has not attained full age." The first limb is the one usually left out. Section 4(3) then defines it: "married person (已婚者) means a party to a marriage within the meaning of the Married Persons Status Ordinance (Cap. 182)."

Serving personnel and mariners get a wider exemption still. Section 6 opens: "Any person in actual naval, military or air force service, and any mariner or seaman at sea may by will—", and lets them make a will disposing of property, exercising a power of appointment, or appointing "a person as guardian of his infant children", "without complying with section 5(1)". Read that precisely: section 6 disapplies section 5(1) only, not the whole of section 5. What that difference means is not that a privileged testator must still clear section 5(2): subsection (2) is a remedial power, not a requirement, so there is nothing in it to be dispensed with, and a section 6 will is valid without any application ever being made. It means that section 5(2) remains available to a document that fails section 5(1), and that nothing outside subsection (1) is swept away by section 6. (Read section 7(1) alongside it: "No appointment made by will, in exercise of any power, shall be valid unless it is executed in accordance with section 5." Section 6(b) lets a privileged testator exercise a power of appointment "without complying with section 5(1)"; how the two provisions sit together is not spelled out in the text.)

Mental capacity: the Ordinance is silent. Cap. 30 nowhere defines testamentary capacity and nowhere requires a medical assessment. Capacity is a common-law requirement, drawn from decided cases rather than from this Ordinance, and this article will not dress case law up as statute. Arranging contemporaneous medical evidence where capacity may later be disputed is an evidential decision, not a statutory requirement.

How to sign: section 5(1), limb by limb

Section 5(1) opens: "Subject to section 6, no will shall be valid unless—", and then:

• (a) "it is in writing, and signed by the testator, or by some other person in his presence and by his direction;"
• (b) "it appears that the testator intended by his signature to give effect to the will;"
• (c) "the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and"
• (d) "each witness either— (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),"

And then a closing phrase that almost every summary drops: "but no form of attestation shall be necessary." The attestation-clause wording circulated in templates is not a statutory requirement.

Three things are worth reading closely:

"Sign" is broad. Section 2: "sign (簽署) includes the affixing or making of a seal, mark, thumbprint or chop;"

The witnesses do not have to watch the pen move. Limb (c) is "made or acknowledged" — you may sign beforehand and then acknowledge that signature in front of two witnesses present at the same time.

The witnesses do not need each other present when they sign. Limb (d) says so expressly: "but not necessarily in the presence of any other witness". They must both be present with you under limb (c); they need not be present with each other when signing.

And then section 5(2): the court can deem it duly executed

This is the most important sentence in this article. Section 5(2) in full:

Unpacked, the threshold is high:

• There must be a document, and it must purport to embody testamentary intentions;
• There must be an application — the subsection does not operate automatically, somebody has to go to court;
• The court must be satisfied, in the subsection's own words "that there can be no reasonable doubt" — the subsection says that and stops. Which standard of proof that phrase imports is a question of construction, not something the text settles;
• What it must be satisfied of is that the document embodies the deceased's testamentary intentions.

If all of that holds, the document is "deemed to be duly executed".

There is a temporal limit on section 5(2) that nobody mentions. The present section 5, subsection (2) included, was substituted by the Wills (Amendment) Ordinance 1995 (56 of 1995) s.3, and section 30(4) of Cap. 30 provides that the amendments made by that Ordinance "shall not apply to a will of a testator who died before the commencement of that Ordinance but, subject to subsection (5), shall apply to a will of a testator who dies after that commencement whether the will was made before or after that commencement, but so that a will that was made before that commencement and that, but for the provisions of that Ordinance, would be valid shall not thereby be invalidated." (The eLegislation commencement marker after the second "commencement" is omitted from the quotation, as it is from the quotations of s.30(1) and of Cap. 481 s.11(5) below.) That commencement date is 3 November 1995. The closing words are a saving in the other direction: a pre-1995 will that would have been valid anyway is not invalidated by the amending Ordinance. Section 30(5) adds that the effect of a testator's marriage on a will made before that date "shall be determined as if that Ordinance had not been enacted". So for a testator who died before 3 November 1995, section 5(2) is not available at all. There is an outer gate as well: section 30(1) provides that "This Ordinance shall not apply to a will of a testator who died before the commencement of this Ordinance and shall apply to a will of a testator who dies after its commencement whether the will was executed before or after its commencement, but so that a will which was executed before its commencement and which, but for the provisions of this Ordinance, would be valid shall not thereby be invalidated." Cap. 30's own commencement date is 13 March 1970.

So the accurate statement is: a defectively executed document is not automatically void, but rescuing it requires a court application on a very demanding standard. That is not a reason to be casual about the formalities. It is a materially different answer to the real-world situation — a family finds a page with one witness, or none.

The Ordinance says nothing about how often, or on what evidence, section 5(2) is exercised. That is case law, and it lies outside the statutory text this article is built on.

Witnesses: what the Ordinance says, and what it does not

This is where guides go wrong most often.

The Ordinance sets no minimum age for a witness. Cap. 30 contains no age or capacity requirement for witnesses anywhere. The common assertion that witnesses "must be at least 18 years old" has no statutory source in Cap. 30.

If anything the Ordinance points the other way. Section 9: "If a person who attests the execution of a will is, at the time of execution or at any time afterwards, incompetent to be admitted a witness to prove the execution, the will shall not on that account be invalid."

A beneficiary who witnesses: it is the gift that fails, not the will. Section 10(1): "If a person attests the execution of a will, and any disposition of or affecting any property (other than charges and directions for the payment of any debt) is given or made by the will to that person or his spouse, that disposition shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be void." The bracketed carve-out — charges and directions for the payment of any debt — is routinely dropped from summaries: charging property with a debt, or directing that a debt be paid, does not engage the subsection (and see section 11).

But section 10(3) contains a saving that is rarely mentioned. "For the purposes of subsection (1) of this section the attestation of a will by a person to whom or to whose spouse there is given or made any such disposition as is described in that subsection shall be disregarded if the will is duly executed without his attestation and without that of any other such person." In practice: if there were enough other, disinterested witnesses for the will to be duly executed without counting the beneficiary's attestation, the gift survives.

An executor may witness. Section 12: "A person shall not, by reason only of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof." An executor who takes nothing under the will is not caught by section 10.

So may a creditor. Section 11 makes the equivalent provision where property is charged with a debt.

Three six-month clocks that start at death, not at signing

None of these concerns the testator; all concern the family afterwards. All three run from the date on which representation (the grant of probate or letters of administration) is first taken out.

The first two leave the door ajar — "except with the permission of the court" — but permission is a separate application, not an entitlement. The third has no such door. In Cap. 481 s.11(1) the six months is built into the condition itself, and the subsection contains no permission wording at all. That matters most to a cohabitant, or to someone whose marriage turns out to have been void: a jointly held flat or joint account is often the largest thing in play, and the route by which it reaches the "net estate" is a section 4 application made inside the six months. Section 11(5) adds a further limit: "This section does not apply to a joint tenancy of any property created before the commencement of this Ordinance" — again 3 November 1995.

Section 11 also carries three subsections rarely mentioned. Section 11(2): "In determining the extent to which any severable share is to be treated as part of the net estate of the deceased by virtue of an order under subsection (1), the court shall have regard to any estate duty payable in respect of that severable share." The provision requires the court to have regard to any estate duty payable when deciding the extent to which the share is brought into the net estate — that is a factor the court weighs, not a fixed arithmetic step that nets estate duty off the share before anything else is calculated. Section 11(3) is a protective proviso of the same shape as section 23A(3) above: "Where an order is made under subsection (1), this section shall not render any person liable for anything done by him before the order was made." So anyone — including the other joint tenant or a third party — who deals with the property before a section 11(1) order is made is not exposed to liability by the order that follows. Section 11(4) clarifies scope: "For the avoidance of doubt it is hereby declared that for the purposes of this section there may be a joint tenancy of a chose in action." So the "joint tenancy" that section 11 speaks of is expressly declared to extend to a chose in action — an intangible right, such as money in a joint account — and not only to tangible property like land. That is precisely the "joint account" example already given above.

When is representation "first taken out"? Both Ordinances define it, and both definitions sit immediately next to the provisions quoted above. Cap. 30 s.23A(4): "In considering for the purposes of this section when representation with respect to the estate of a deceased person was first taken out, a grant limited to part only of the estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time." Cap. 481 s.26, headed "Determination of date on which representation was first taken out", makes materially the same provision for the whole of Cap. 481. A grant limited to part only of the estate does not, in general, start the clock.

Rectification (section 23A) deserves a note of its own, because many people assume a mis-typed will is beyond repair. Section 23A(1): if a court is satisfied that a will "is so expressed that it fails to carry out the testator’s intentions, in consequence— (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions." Two grounds only — clerical error and misunderstood instructions. It is not a remedy for a distribution the family later thinks unfair.

Section 23A(3) simultaneously protects the personal representatives: distributing after the six months does not make them liable "on the ground that they ought to have taken into account the possibility that the court might permit the making of an application for an order under this section after the end of that period" — but the same subsection closes by saying this "is without prejudice to any power to recover, by reason of the making of an order under this section, any part of the estate so distributed." That preserves whatever power to recover otherwise exists; it does not itself create or guarantee an unconditional right to claw the distributed assets back.

If the will is ambiguous rather than mis-typed, the route is section 23B, and it has to be read in two steps. The first step is the gateway. Section 23B(1) applies to a will "(a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances." Note what limb (c) excludes: the evidence that opens the gate must be evidence other than evidence of the testator's intention. Only then comes the second step, section 23B(2): "In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation." Evidence of intention cannot be used to establish the ambiguity; it becomes admissible once the ambiguity is established some other way.

Revoking and amending

There are exactly four routes to revocation. Section 13(1): "No will or part of a will shall be revoked otherwise than—"

• (a) "by marriage as provided by section 14;"
• (b) "by another valid will;"
• (c) "by a written revocation executed in a manner in which the testator could validly execute a will; or"
• (d) "by the burning, tearing or otherwise destroying of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it."

Limb (d) has two elements, not one: the act of destruction and the intention to revoke. And section 13(2) closes off a route people assume exists: "No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." A falling-out, an estrangement, a change of heart — none of these revokes anything by itself.

Section 18 answers the obvious follow-up — selling or transferring property mentioned in the will does not revoke the gift: "No conveyance or other act made or done subsequently to the execution of a will of or relating to any property comprised therein, except an act by which the will is revoked in accordance with section 13(1), shall prevent the operation of the will with respect to any estate or interest in such property which the testator has power to dispose of by will at the time of his death." (Whether anything is left for the gift to bite on at death is a separate question.)

Marriage revokes a will — subject to three qualifying subsections, not one. Section 14(1): "Subject to subsections (2), (3) and (4), a will shall be revoked by the testator’s marriage." The opening words name three; all three have to be read.

The first has nothing to do with expecting to marry. Section 14(2): "A disposition in a will in exercise of a power of appointment shall take effect notwithstanding the testator’s subsequent marriage unless the property so appointed would in default of appointment pass to his personal representatives." So a disposition made in exercise of a power of appointment generally survives the marriage on its own terms, with no need for the will to show anything about an expected spouse. (Read alongside section 7(1): "No appointment made by will, in exercise of any power, shall be valid unless it is executed in accordance with section 5.")

Subsections (3) and (4) are the "particular person" ones. The common formulation is "unless the will expressly provides otherwise". That is not what the section says. Section 14(3): "Where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage, the will shall not be revoked by his marriage to that person." The load is carried by "a particular person" — a generic clause saying the will survives any future marriage does not meet the requirement that the testator was expecting to marry a particular person.

Section 14(4) deals with individual dispositions, and it is not merely subsection (3) in miniature, because its paragraph (b) carries the effect much further. Where the will shows that at the time it was made the testator expected to marry a particular person and intended that a disposition should not be revoked by that marriage, then "(a) that disposition shall take effect notwithstanding the marriage; and (b) any other disposition in the will shall take effect also, unless it appears from the will that the testator intended the disposition to be revoked by the marriage." In other words: satisfy subsection (4) as to one disposition and the default for the rest of the will is that it survives too. Reading section 14(4) as merely doing "the same for individual dispositions" drops paragraph (b), and states the default backwards.

What counts as "marriage" is set by section 14(5), which points to section 2 of the Married Persons Status Ordinance (Cap. 182). That section covers a marriage under the Marriage Ordinance (Cap. 181), a modern marriage validated by the Marriage Reform Ordinance (Cap. 178), a customary marriage declared valid by that Ordinance, and "a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed". An overseas wedding triggers section 14(1) too.

Divorce: the Ordinance's word is "lapse", not "treated as predeceased". Section 15(1), where a marriage is validly dissolved, annulled or declared void: (a) "the will shall take effect as if any appointment of the former spouse as an executor or as the executor and trustee of the will were omitted"; and (b) "any devise or bequest to the former spouse shall lapse,". The closing words that follow — "except in so far as a contrary intention appears from the will" — sit outside both paragraphs in the XML and qualify (a) as well as (b), not (b) alone.

Why does the distinction matter? Because section 15(3) then deals with what follows: where an interest in remainder is subject to a life interest and "the life interest lapses by virtue of subsection (1)(b), the interest in remainder shall be treated as if it had not been subject to the life interest and, if it was contingent upon the termination of the life interest, as if it had not been so contingent." The subsection does two things, and the second is conditional: it first strips the life interest away from the remainder, and then — only where the remainder was contingent on the life interest ending — removes that contingency too. "Treated as predeceased" is the England-and-Wales formulation and it invites the wrong prediction about this step.

Section 15(2) neither creates nor preserves a right; it is a without-prejudice saving, and it is tied expressly to paragraph (1)(b): "Subsection (1)(b) is without prejudice to any right of the former spouse to apply for provision for maintenance under the Matrimonial Causes Ordinance (Cap. 179)."

Writing on the will afterwards usually achieves nothing. Section 16(1): obliterations, interlineations and other alterations made after execution have no effect "except so far as the words or effect of the will before such alteration are not apparent", unless the alteration "is executed by the testator in a manner in which he could validly execute a will at the time such alteration was made" — the subsection names both the person who must execute the alteration and the moment by reference to which capacity is judged, and summaries routinely drop both. Section 16(1A) narrows it further: "For the purpose of subsection (1), the words or effect of a will are apparent if they can be discovered by any means." If the original wording can still be recovered — including by technical means — the crossing-out generally does not bite. Section 16(2) provides that where the testator and any required witnesses sign in the margin near the alteration, or against a memorandum referring to it, the will with the alteration "shall be deemed to be duly executed".

Codicils, and the Chinese term. Section 17(1): a revoked will cannot be revived "otherwise than by the re-execution thereof or by a codicil executed in accordance with section 5 and showing an intention to revive it." Note the wording: "in accordance with section 5", not in accordance with section 5(1). Section 5 includes the subsection (2) dispensing power, so a defectively executed codicil is in the same position as a defectively executed will — an application can be made. And a testator within section 6 may make a codicil "without complying with section 5(1)" at all. In practice you should of course use two witnesses; but reading "in accordance with section 5" as "two witnesses" is the same stop-at-subsection-(1) error this section exists to correct. On the Chinese side, "codicil" is often rendered 附錄; that term appears nowhere in the authentic Chinese text of Cap. 30. The authentic term is 遺囑更改附件.

Section 17(2) then limits the scope of any revival. Where a will was partly revoked and afterwards wholly revoked, reviving it does not reach back to the part that was revoked before the whole revocation — that earlier partial revocation does not come back to life along with the rest, unless a contrary intention is shown. In full: "When any will which is partly revoked, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was revoked before the revocation of the whole thereof, unless an intention to the contrary is shown."

Executors: two points to get right

"Must be at least 21" was stated far too broadly. The heading of section 39 of the Probate and Administration Ordinance (Cap. 10, consolidated 18 December 2025) states its own scope: "Person under 21 as sole executor". Section 39(1) deals with a sole executor under 21 — administration with the will annexed goes to a guardian or other suitable person "until the person attains the age of 21 years, and on his attaining that age, and not before, probate of the will may be granted to him."

What if there is more than one executor? The answer is in the Non-Contentious Probate Rules (Cap. 10A, consolidated 16 January 2020), rule 32, headed "Grants where co-executor is a person under 21". Rule 32(1) in full: "Where one of 2 or more executors is a person under the age of 21 years, probate may be granted to the other executor or executors not under the age of 21 years nor under disability, with power reserved of making the like grant to the first mentioned executor on his attaining the age of 21 years, and administration for the use and benefit of the first mentioned executor until he attains the age of 21 years may be granted under rule 31 if and only if the executors who are not under the age of 21 years nor under disability renounce, or, on being cited to accept or refuse a grant, fail to make an effective application therefor." The second half is the operative part: a separate rule 31 administration arises only if the adult executors drop out. Rule 32(2): "The right of an executor under the age of 21 years to be granted probate on attaining that age may not be renounced by any person on his behalf."

What is the rule 31 that rule 32(1) sends you to? Rule 31, headed "Grants on behalf of person under 21", provides at (1) that where the person who would otherwise take the grant is under 21, administration for his use and benefit until he attains that age is granted "(a) to the parents of the person jointly or to any guardian appointed by the court; or (b) if there is no such guardian able and willing to act and the person has attained the age of 16 years, to any next of kin nominated by the person" (with a variant for a married woman). Rule 31(3) lets the Registrar assign a guardian by order; r.31(5) provides that where the under-21 sole executor has no interest in the residuary estate the grant goes, unless the Registrar directs otherwise, to the person entitled to the residuary estate; r.31(6) confines renunciation of the right to a guardian assigned under r.31(3) and authorised by the Registrar.

And the most direct softening of the Cap. 10 s.25(1) "not less than two individuals" floor is r.31(4). "Where by virtue of section 25 of the Ordinance, a grant is required to be made to not less than 2 administrators and there is only one person competent and willing to take a grant under the foregoing provisions of this rule, administration may, unless the Registrar otherwise directs, be granted to such person jointly with any other person nominated by him as a fit and proper person to take the grant."

(The phrase "nor under disability" in rule 32(1) is given content by rule 33, which deals with a person entitled to a grant who "is by reason of mental or physical incapacity incapable of managing his affairs" and provides who takes the grant instead.)

And the position has to be stated one notch more narrowly still. It is commonly said that a person under 21 can be validly appointed executor and merely cannot yet take the grant. Cap. 10 s.39(2) is stronger than that: "Where a testator by his will appoints a person under the age of 21 years to be an executor, the appointment shall not operate to transfer any interest in the property of the deceased to the person or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section." So until probate issues, the appointment transfers nothing and makes the appointee a personal representative for no purpose at all. Where there are adult co-executors the administration proceeds without waiting — but it is they, not the minor, who are the personal representatives meanwhile.

There is a textual join here that the provisions do not make. The heading of section 39 confines it to a "Person under 21 as sole executor", but the words of subsection (2) are not so confined — they run "Where a testator by his will appoints a person under the age of 21 years to be an executor", and the condition that lifts the subsection turns on three words: probate must be granted to him "under this section". For a minor co-executor, what Cap. 10A r.32(1) preserves is a grant made "with power reserved of making the like grant to the first mentioned executor on his attaining the age of 21 years" — a grant on the reserved power, not a grant under Cap. 10 s.39. Whether s.39(2) reaches co-executors at all, and whether a grant made on a reserved power counts as one made "under this section", is not settled by either text. What both do support is the narrower statement above: until the minor actually obtains probate, the personal representatives are the adult co-executors (see item 11 of the closing list).

"An executor must not be bankrupt" has no source we could find. Neither Cap. 10 nor Cap. 10A contains a bankruptcy disqualification for executors. This article makes no claim about Hong Kong law generally on the point.

Numbers: a cap of four, and in some cases a floor. Cap. 10 s.25(1): "Probate or administration shall not be granted to more than four persons in respect of the same property, and administration shall, if there is a minority or if a life interest arises under the will or intestacy, be granted either to a trust corporation, with or without an individual, or to not less than two individuals:" — the subsection ends on a colon, and a proviso follows: "Provided that the court in granting administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, in accordance with probate rules and orders." Where the will creates a life interest ("to my spouse for life, then to the children") or there is a minor beneficiary, administration will not ordinarily go to a single individual.

But "floor" overstates it. Section 25(2) expressly contemplates the one-representative case and fixes it by addition rather than by invalidity: "If there is only one personal representative (not being a trust corporation) then, during the minority of a beneficiary or the subsistence of a life interest and until the estate is fully administered, the court may, on the application of any person interested or of the guardian, committee or receiver of any such person, appoint one or more personal representatives in addition to the original personal representative in accordance with probate rules and orders."

Section 25 also carries its own temporal gate. Section 25(3): "This section applies to grants of representation made after the commencement of this Ordinance whether the testator or intestate died before or after such commencement." (The eLegislation commencement marker after "commencement" is omitted from the quotation.) That commencement date is 7 October 1971. Both the cap and the floor therefore key off the date of the grant, not the date of death.

Renouncing, and un-renouncing. Cap. 10 s.29(1): a person entitled to representation "may expressly renounce his right to such representation"; s.29(2) sets the form — "orally on the hearing of any petition or probate action by the person renouncing or by counsel on his behalf, or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn." The oral route is not any hearing — it has to be the hearing of a petition or a probate action. Section 30 provides for constructive renunciation where a person cited fails to appear.

And section 31 allows renunciation to be undone: "A renunciation of probate or administration may be retracted at any time on the order of the court", subject to a proviso: where a grant has already been made to someone entitled in a lower degree, leave to retract may be given to an executor "only if the court is satisfied that such retraction is for the benefit of the estate or persons interested therein."

Guardians for minor children

The source is section 6 of the Guardianship of Minors Ordinance (Cap. 13, consolidated 25 April 2013) — not the Social Welfare Department.

Section 6(1): "A parent of a minor may appoint any person to be a guardian of the minor after that parent dies." Section 6(2) gives a guardian the same power: "A guardian of a minor may appoint any person to be a guardian of the minor after that guardian dies." (Those two subsections are what section 6(4)'s "a parent or guardian" refers back to.) Section 6(3) prescribes the general form (writing, dated, signed, and "attested by 2 witnesses"), and section 6(4) then provides: "Despite subsection (3), a parent or guardian may appoint a guardian by a will executed in accordance with section 5 of the Wills Ordinance (Cap. 30)."

Two points that get missed:

• The appointee has to accept. Section 6(6): "An appointment made under this section has no effect unless the appointed person accepts the office either expressly or impliedly by conduct." Naming someone in your will does not settle the matter — ask them first.
• The child's views must be considered. Section 6(5) requires the parent or guardian "to take into account the views of the minor as far as practicable having regard to the minor’s age and understanding." But section 6(8) immediately adds: "The validity of an appointment of a guardian is not affected by a failure to comply with subsection (5)."

And the point most often missed: naming a guardian in a will does not, by itself, make that person a guardian. Section 6 only appoints; sections 7 and 8 decide when guardianship is actually assumed. Section 7, headed "When guardianship takes effect automatically", provides that the appointee "automatically assumes guardianship over the minor on the death of the appointing parent or appointing guardian (as the case may be) if— (a) the appointing parent or appointing guardian has a custody order over the minor immediately before he or she dies irrespective of whether anyone else has a custody order over the minor at that time; or (b) the appointing parent or appointing guardian lived with the minor immediately before dying and the minor does not have any surviving parent or surviving guardian when the appointing parent or appointing guardian dies." Outside those two cases, section 8 ("Assumption of guardianship by application") applies — and section 8 says so in its own opening words, "Subject to section 7", which is what puts section 7 first and leaves section 8 the remainder. Under section 8 the appointee "may, after the appointing parent or appointing guardian dies, apply to the court to assume guardianship over the minor", and the court may order the person to act jointly with the surviving parent or guardian, to act only once the minor has no parent or guardian, to act from a time or event the court specifies, to be removed as a guardian, or to act to the exclusion of the surviving parent or guardian. In the common case — the other parent survives and there is no custody order — the testamentary appointment normally has to go through the court before it bites.

And once guardianship is assumed, the default is joint action, not substitution. Section 8A(1): "Subject to section 8, any guardian appointed under section 6 must act jointly with the surviving parent or surviving guardian (if any) of a minor on assuming guardianship over the minor." Section 8A(2) sets out how that joint arrangement is broken: "If the surviving parent or surviving guardian and the guardian appointed under section 6 think the other is unfit to have guardianship over the minor, either of them may apply to the court", and the court may order them to continue to act jointly, or order either of them to act to the exclusion of the other. So "I have named someone in my will to look after my child" does not, where the other parent survives, mean that person takes over; the statutory default is that the two act together, and displacement runs through an unfitness application.

One more provision, which links back to an earlier section of this article. Section 8B(6): "To avoid doubt, an appointment made under section 6 in a will is revoked if the will is revoked." Read that with Cap. 30 s.14(1) — marriage revokes the will — and the consequence is direct: appoint a guardian by will and then marry, and the guardian appointment goes with the will. Section 8B also provides other routes to revocation: a later s.6 appointment revokes an earlier one unless it is clear the purpose is to appoint an additional guardian (s.8B(1)); revocation by a written and dated document signed and "attested by 2 witnesses" (s.8B(2)); for appointments not made in a will, destruction of the document with the intention of revoking (s.8B(3)); and, for joint appointments, revocation by any one of them, which "has no effect" unless the other appointors are notified (s.8B(4) and (5)).

Challenges to a will: provision for family and dependants

Even a wholly valid will can be varied by a court order out of the estate. The source is the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481, consolidated 21 April 2022).

First, the name. The Ordinance is often called 《遺產扶養條例》 in Chinese. That name appears nowhere in Cap. 481. Section 1(1) of the authentic Chinese text gives the short title as 《財產繼承(供養遺屬及受養人)條例》.

First, a date nobody quotes. Section 3(1) opens "Where after the commencement of this Ordinance a person dies—" (the eLegislation commencement marker after "commencement" is omitted from the quotation). Cap. 481 commenced on 3 November 1995, per the editorial note to that section. If the deceased died before that date, none of what follows is available.

There are nine categories of applicant, not three. Section 3(1) then sets two connecting conditions — the deceased died domiciled in Hong Kong, or "having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death" — and then lists nine survivors:

Apart from (i), (iii) and (v), every limb turns on the same requirement: being maintained, either wholly or substantially, immediately before the death. Section 3(3) defines it: "a person shall be treated as being maintained by the deceased, either wholly or substantially, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person." Note that s.3(3) opens by naming the limbs it applies to — "For the purposes of subsection (1)(ii), (iv), (v), (vi), (vii), (viii) and (ix)" — and (v) is among them, even though limb (v) as enacted carries no maintenance condition of its own.

Limb (iii) is a closed historical class. The table above uses the Ordinance's own words, but they are unreadable without the section 2(1) definitions. "union of concubinage (夫妾關係) means a union of concubinage entered into by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally"; and "tsip (妾、妾侍) means the female partner of a union of concubinage". The load-bearing words are "before 7 October 1971" — no union entered into after that date can qualify, so limb (iii) is a class that cannot acquire new members. Note also that the limb reads "a tsip or male partner of the deceased by a union of concubinage" — the words "or male partner" are easily passed over: the male partner of such a union is an applicant in his own right.

Limb (ii)'s "former wife or former husband" is a defined term too. Section 2(1): "former wife (前妻) or former husband (前夫) means a person whose marriage with the deceased was during the lifetime of the deceased either— (a) dissolved or annulled by a decree of divorce or a decree of nullity of marriage granted under the law of Hong Kong; or (b) dissolved or annulled in any place outside Hong Kong by a divorce or annulment which is recognized as valid by the law of Hong Kong". The divorce has to be a Hong Kong decree, or a foreign one recognised as valid here. And limb (ii)'s "has not remarried" has to be read with s.2(4): "Any reference in this Ordinance to remarriage or to a person who has remarried includes a reference to a marriage which is by law void or voidable or to a person who has entered into such a marriage, as the case may be, and a marriage shall be treated for the purposes of this Ordinance as a remarriage, in relation to any party thereto, notwithstanding that the previous marriage of that party was void or voidable." A second marriage that turns out to have been void still counts as a remarriage for Cap. 481 — which cuts the opposite way to the void-marriage provision discussed next, and the two have to be kept apart.

Limb (i) is wider than "spouse" — it takes in a void marriage entered into in good faith. Section 2(1): "husband (丈夫) or wife (妻子), in relation to a deceased person, means— (a) a husband or wife by a valid marriage; and (b) a person who in good faith entered into a void marriage with the deceased unless either— (i) the marriage of the deceased and that person was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognized as valid by the law of Hong Kong; or (ii) that person has during the lifetime of the deceased entered into a later marriage". This matters a great deal. A person whose marriage to the deceased was void, but who entered into it in good faith and does not fall within either exception, is a "wife or husband of the deceased" for s.3(1)(i). That means no maintenance requirement at all, and the wider s.3(2)(a) standard — not the narrow route through limb (ix).

There is no "two years’ cohabitation" limb. Section 3(1) is limited to the nine categories above, and none of them turns on a period of cohabitation. The two-year cohabitation test people have in mind comes from the England-and-Wales Inheritance (Provision for Family and Dependants) Act 1975. That Act is outside the Hong Kong eLegislation corpus this article is built on, so no subsection of it is cited here — this article states only the Hong Kong side of the comparison: Cap. 481 contains no equivalent. For a partner with no marriage of any kind behind them, the route is limb (ix) — being maintained wholly or substantially immediately before the death. (Where there was a marriage that turns out to have been void, as above, the position is different and the route is limb (i).) This article takes no position on whether a cohabitation limb should be added — only that Cap. 481 does not contain one.

The "reasonable financial provision" standard is more generous for a spouse and for either partner to a union of concubinage. Section 3(2)(a): where the application is made by the husband or wife under s.3(1)(i) (except where a decree of judicial separation was in force at the date of death and the separation was continuing), or by "a tsip or male partner of the deceased by a union of concubinage" under s.3(1)(iii), the phrase means "such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance". That closing clause is the point: for these applicants, maintenance is not the ceiling. For every other applicant, section 3(2)(b) confines it to what is reasonable "for the applicant to receive for his maintenance" — maintenance is the ceiling.

What orders can the court actually make? That is section 4(1), and the threshold sits in the same subsection: the court must be satisfied that the disposition effected by the will or the intestacy law "is not such as to make reasonable financial provision for the applicant", and may then make any one or more of five orders — (a) "an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order"; (b) "an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified"; (c) "an order for the transfer to the applicant of such property comprised in that estate as may be so specified"; (d) "an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified"; (e) "an order for the acquisition out of the property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit." So "the court can make an order" means, concretely: periodical payments, a lump sum, a transfer of property, a settlement of property, or a purchase followed by a transfer or settlement.

Section 5 lists what the court weighs. Section 5(1) sets out the common list: the financial resources and needs of each applicant and of each beneficiary "in the foreseeable future"; "any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased"; "the size and nature of the net estate of the deceased"; any physical or mental disability; and "any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."

The subsection immediately after that list — section 5(2) — is the one that matters most to a spouse, a former spouse or either partner to a union of concubinage, and it is rarely quoted. Section 5(2): "Without prejudice to the generality of paragraph (g) of subsection (1), where an application for an order under section 4 is made by virtue of section 3(1)(i), (ii) or (iii), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to— (a) the age of the applicant and the duration of the marriage or union of concubinage; (b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family, and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce." That closing clause is the notional-divorce cross-check: the court asks what the applicant could reasonably have expected had the marriage ended that day by divorce rather than by death. For anyone claiming under limb (i) — including the good-faith party to a void marriage discussed above — this subsection is what gives the wider s.3(2)(a) standard its practical content.

Two more in the same series: section 5(3) adds, for a limb (iv) parent, the applicant's age and the contribution the deceased was making immediately before death; section 5(4) adds, for limbs (v), (vi) and (vii), "the manner in which the applicant was being or in which he might expect to be educated or trained", with three further matters for limb (vii).

For a limb (ix) applicant — the cohabitant's route above — section 5 adds two further subsections that are the ones such an applicant most needs to read. Section 5(5): where the application is made by virtue of s.3(1)(viii) or (ix), the court shall, in addition to the matters in paragraphs (a) to (f) of s.5(1), "have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility." (The two authentic texts diverge in this subsection: the English reads "by virtue of section 3(1)(viii) or (ix)", while the Chinese authentic text at the same place reads 「及」. Both texts are authentic; this article notes the divergence and takes no position on which governs.) Section 5(6) then adds a factor belonging to limb (ix) alone: the court shall, in addition to paragraphs (a) to (f) and to subsection (5), "have regard to the closeness of the relationship between the applicant and the deceased immediately before the death of the deceased." So while the Ordinance sets no cohabitation threshold, the closeness of the relationship and the length of time maintenance was actually provided are matters section 5 requires the court to weigh.

Sections 5(7) and 5(8) are also never quoted, and they supply the actual content of "financial resources" and "financial needs" used earlier in this section. Section 5(7): "In considering the matters to which the court is required to have regard under this section, the court shall take into account the facts as known to the court at the date of the hearing." So s.5(7) fixes the court's knowledge cut-off — the court weighs facts known to it by the date of the hearing, not facts that only come to light after the hearing. It is not a rule against looking at the position at or before the deceased's death: several other factors in the same section expressly require exactly that, such as s.5(6)'s closeness of the relationship between the applicant and the deceased "immediately before the death of the deceased," mentioned above. Section 5(8): "In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities." So the "financial resources" in s.5(1)(a)-(c) above includes earning capacity, and "financial needs" includes financial obligations and responsibilities.

One more definition: which court? Cap. 481 s.2(1) says: "court (法院), unless the context otherwise requires, means the Court of First Instance or the District Court". Cap. 30, by contrast, does not define "court" at all — its section 2 defines only disposition, internal law, personal representative, property, sign, state and will. Which court exercises the section 5(2) dispensing power, or makes a section 23A rectification order, is not answerable from the text of Cap. 30.

And the practical point: six months. Section 6's time limit is set out in the table above. Anyone planning to exclude a family member should understand both halves of it — a will cannot close this route off unilaterally, but the Ordinance puts a short clock on it.

Cross-border property: Cap. 30 has provisions on point

Guides commonly devote a section to "you may need two wills" without mentioning Part III of Cap. 30 (sections 24 to 29) — which is precisely the Part addressing the problem.

Section 24 — the general rule. A will is treated as properly executed if its execution conformed to the internal law of the territory where it was executed, or of the territory where the testator was domiciled or had his habitual residence at execution or at death, or of a state of which he was a national at either of those times. A will executed in Hong Kong under section 5 therefore has several independent legs to stand on as to form.

Section 25 — additional rules, covering wills executed on a vessel or aircraft (by reference to the territory with which it was most closely connected), and "a will so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated".

Section 26 — foreign qualification requirements count only as formalities. Where foreign law requires special formalities of particular testators, or requires witnesses "to possess certain qualifications", those requirements "shall be treated, notwithstanding any rule of that law to the contrary, as a formal requirement only."

Section 27 — moving does not change the reading. "The construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." Note that this one is about construction, not formal validity — which is why the framing below has to be stated carefully.

Section 28 — choosing between two or more systems of law in one territory. Where the internal law of a territory is to be applied but that territory has more than one system of internal law on formal validity, any rule in force throughout the territory indicating which applies is to be followed; failing that, the system is "that with which the testator was most closely connected at the relevant time", the relevant time being the death where the matter turns on circumstances at death, and the time of execution otherwise.

Section 29 — conformity is judged as at execution, but a later change of law can still help. "In determining for the purposes of this Part whether or not the execution of a will conformed to a particular law, regard shall be had to the formal requirements of that law at the time of execution, but this shall not prevent account being taken of an alteration of law affecting wills executed at that time if the alteration enables the will to be treated as properly executed." For someone with foreign assets that is a practical point: a subsequent relaxation of the foreign law can count.

What this Part covers, and what it does not, has to be stated precisely. Part III is headed "Conflict of Laws relating to Testamentary Dispositions", and what it contains is rules of formal validity together with the choice-of-law machinery that goes with them — ss. 24 to 26 and s.29 on formal validity, s.27 on construction, s.28 on selecting a system of internal law. What it does not contain is the substantive succession law that decides who is entitled to assets in another jurisdiction, or the procedure for administering them there. So "what do I do about my flat on the Mainland" is a question Cap. 30 does not answer, and this article will not answer it from Cap. 30.

Does a will become a public document?

Wills are often said to become public documents after probate, and that is used to advise against putting passwords in a will. The advice is right; the reason needs stating accurately. Cap. 10 s.73: original wills and other documents under the control of the court in the Registry are deposited as the Chief Justice directs, and any so deposited "shall, subject to the control of the court and the provisions of probate rules and orders, be open to inspection." The qualifier sits mid-sentence. Inspection is qualified by the court's control and the probate rules — it is not unconditional publication.

(There is a more basic problem with putting passwords in a will, incidentally: once executed, changing it engages section 16 — and passwords change.)