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Oldham, Li & Nie Excels Once Again in 2025 Chambers’ Greater China Region Guide

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Oldham, Li & Nie (OLN) has been recognised in the 2025 edition of the Chambers’ Greater China Region Guide for its expertise in Corporate/M&A and Family/Matrimonial law.

The guide also highlights two of our lawyers as leading professionals in the region:

Client feedback includes:

  • “They gave us practical advice promptly and always gave us fee estimates in advance” 
  • “Both partner and associate have a thorough understanding of complex intertwined agreements and manage against these, providing invaluable knowledge to our business management”
  • “Oldham, Li & Nie are very commercial and take pride in working to tight deadlines and producing their work on time”
  • “Stephen is very hard-working and commercial”

The Chambers Greater China Region Guide conducts annual evaluations of law firms and lawyers across the Greater China Region, assessing factors such as technical legal skills, professionalism, client service, and business acumen.

For more details on OLN’s rankings, visit our profile in the 2025 Chambers Greater China Region Guide.

How Hong Kong’s Legal System Protects Your Creative Works on Online Sharing Platforms

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Online sharing platforms (OSP), like YouTube and TikTok, have revolutionized the distribution of creative works. While these OSP provide unprecedented opportunities for exposure, they also present significant risks of copyright infringement. Notably, infringers have taken advantage of the borderless nature of the Internet, believing either that their actions are extraterritorial and beyond legal reach, or that copyright owners are unlikely to pursue legal action in the foreign jurisdictions where these infringers reside. Infringers who believe they can act with impunity have inflicted significant harm on copyright owners.

Where the infringement occurs on an OSP, a request may be made by the copyright owner for the removal of the infringing contents. Due to the unregistrable nature of copyright, the OSP may require copyright owners to initiate legal action as further proof of ownership. However, an OSP would usually not express on the specific jurisdiction in which such legal action should be filed.

Choosing the right jurisdiction

There are potentially three options a copyright owner may choose.

A common belief is that a copyright owner may only sue the infringer in accordance with the jurisdiction clause in the Terms and Conditions with the OSP. However, since there is no privity of contract between the owner and the infringer, the jurisdiction clause is likely to be irrelevant.

On the other hand, as copyright is territorial in nature, copyright owners are often advised to pursue legal action in the jurisdiction where the infringer is domiciled. This approach has the apparent advantage of making it difficult for the infringer to evade legal proceedings and enforcement. However, many copyright owners may hesitate to take this route due to their unfamiliarity with the specific foreign legal system, as well as the disconnect between the economic loss incurred and the forum chosen for the lawsuit. Additionally, infringers may intentionally exploit the subtle differences in copyright regimes.

Another option is to initiate legal action in the jurisdiction where the copyright owner is based or has a business presence. Traditionally, it was believed that actions taken abroad could not infringe upon local intellectual property rights, making this option seem unviable.  However, given the borderless nature of the Internet, it is increasingly accepted that the “targeting” of residents within a jurisdiction should be regarded as an act occurring within that jurisdiction. For instance, in the recent English case of Entertainment One UK Ltd & Anor v Sconnect Co Ltd & Ors [2022] EWHC 3295 (Ch), the English Court acknowledged its jurisdiction to adjudicate a dispute involving IP infringements on an OSP where the consumers in the UK were specifically targeted, even though the alleged infringer was based in Vietnam.

Once the option to sue in jurisdictions other than the infringer’s hometown becomes available, pursuing legal action in Hong Kong can be a strategic choice if the copyright owner is based in Hong Kong or if the economic value of their creative works is realized here.

Hong Kong’s advantages in safeguarding copyright

At the heart of Hong Kong’s copyright protection is the Copyright Ordinance, which extends to various forms of creative expression, including music, art, literature, and audiovisual content. This legislation grants creators exclusive rights to reproduce, distribute, and publicly display their works. Under the Copyright Ordinance, no registration is required. Hong Kong also adopts an open system which does not require the claimant to be domiciled or incorporated in Hong Kong.

Where the infringer is domiciled in another jurisdiction, the Court needs to consider whether it should extend its authority to a body outside its jurisdiction. In such case, Order 11 Rule 1(1)(f) of the Rules of the High Court provides a suitable jurisdictional gateway. This rule permits a claim based on a tort to be served on the defendant outside of the jurisdiction if the damage was sustained or resulted from an act committed within Hong Kong.

As explained, “targeting” may now be considered an act within Hong Kong. If Hong Kong customers are targeted, this may also lead to a loss incurred in Hong Kong since the Hong Kong customers may now prefer the infringing content over the infringed content. While the law requires that such loss should be “significant”, there is no requirement for the copyright owner operating in multiple jurisdictions to demonstrate that Hong Kong is the sole or primary location of those losses.

Even if the above is satisfied, the Court still has a discretionary power to decline jurisdiction, especially when there is a more appropriate forum for the specific case. In Entertainment One UK Ltd, the English Court has taken into account the following in finally accepting jurisdiction:

  • The location where the copyright was created or implemented
  • The location where the loss is primarily incurred
  • The location of relevant witnesses

Depending on the objectives of the claimant, an OSP may sometimes only require the commencement of legal action as proof of ownership. In such case, a claimant in Hong Kong may opt to file a writ without further pursuing the matter by serving the writ on the defendant. If the writ remains unserved within one year from the date of its filing, it will automatically expire without any consequences to the claimant.

Conclusion

While navigating jurisdictional complexities can sometimes be daunting, copyright owners can strategically choose where to initiate legal action based on critical factors such as the locations of the owner and the infringer, the nature of their losses, and their imminent and long-term objectives.

In particular, when the infringing act or content in question is connected to Hong Kong, the evolving interpretation of “targeting” enhances the prospects for legal redress in the region. This shift allows copyright owners to leverage local legislation more effectively, ensuring their rights are protected against infringement in this increasingly borderless world.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Strategies for Managing Parallel Imports and Protecting Distribution Rights in Hong Kong

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In Hong Kong, the importation of parallel goods or unauthorized products across territory that compete with authorized distribution channels does not constitute trademark infringement.

However, an exception to the international exhaustion rule exists if the condition of parallel-imported goods has changed or been impaired after being put on the global market. In such cases, the reputation or distinctiveness of the trademark may be adversely affected (refer to Section 20(1) of the Hong Kong Trade Marks Ordinance (Cap. 559)). This exception can pose challenges, especially in exclusive distribution relationships.

Exclusive distributors often face difficulties in enforcing their rights against parallel importers unless the products are defective or deteriorated. Moreover, legal mechanisms such as the tort of passing off may not offer adequate protection to authorized distributors, particularly when misrepresentation is hard to prove for goods originating from the original owner or overseas authorized dealer.

To address these challenges, it is crucial to include specific provisions in distribution agreements:

  • Addressing Parallel Imports:
    Distribution agreements, especially those with exclusive distributors, should empower the distributor to enforce their rights within agreed territories.
  • Intellectual Property Rights:
    Clearly define rights related to intellectual property, including designs and artwork created by the distributor, to ensure that the distributor benefits exclusively from such creations.
  • Enforcement of IP Rights:
    Define and clarify the distributor’s right to enforce intellectual property rights in case of infringement and outline associated cost and compensation.

To further protect the distributor’s interests beyond contractual agreements, the following measures may be considered:

  • Differentiation:
    Label parallel import goods distinctly from authorized products, potentially by adding the distributor’s mark to enable customers to recognize the distributor’s trademark.
  • Quality Differentiation:
    Enhance the quality of authorized goods compared to parallel imports, such as tailoring products for local or Asian markets.
  • Trademark Infringement:
    Highlight that the use of a distributor’s registered trademark by a parallel importer constitutes trademark infringement.

Depending on the nature of the goods, particularly health supplements, customers may prioritize warranties and services offered with authorized versions.

Apart from the above, there are non-legal strategies to protect and promote distributed goods, such as:

  • Digital Marketing:
    Incorporate the distributor’s link on the owner’s website to direct customers to authorized channels.
  • Customer Communication:
    Warn customers on the distributor’s website about risks associated with unauthorized purchases.
  • Customer Engagement:
    Enhance relationships through loyalty programs and personalized marketing.
  • Marketing Initiatives:
    Conduct awareness campaigns to educate customers on the benefits of purchasing from authorized distributors.

While it may be challenging to entirely eliminate parallel imports, distributors can take action by sending cease-and-desist letters to parallel importers and emphasizing their exclusive distribution rights.

Ultimately, controlling parallel imports within the agreed territories is a contractual matter that requires collaboration between distributors and owners for effective resolution.

OLN can assist distributors and trademark owners in protecting their interests against parallel imports in Hong Kong. Please contact us for more information.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Series on Hong Kong/PRC Reciprocal Recognition and Enforcement of Judgments

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Under the “one country two systems” principle governing the relationship between the Hong Kong Special Administrative Region (“HKSAR”) and Mainland China (“PRC”), increasingly more mutual recognition and enforcement of judgments regimes have been put into place across different areas of the law. This series explores the latest developments of such regimes.

In part 1 of the series, we start with the regime that comes closest to home to individuals and companies engaged in cross-border corporate and commercial transactions: reciprocal recognition and enforcement of civil and commercial judgments.

In subsequent parts of the series, we will explore the cross-border enforcement of judgments in arbitration, insolvency/bankruptcy, and matrimonial proceedings.

Part 1: Update on Reciprocal Enforcement of Civil and Commercial Judgments

It has almost been a year since the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap 645) (the “New Regime”) came into force, superseding the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (the “MJREO”) which only applies to PRC judgments rendered before 29 January 2024. This article serves as a refresher on the differences between the New Regime and the MJREO, then explores how the HKSAR Courts have interpreted or will likely interpret the more liberal approach offered by the New Regime.

The Basics

Here is a chart comparing the more stringent criteria under the MJREO and the more relaxed requirements under the New Regime.

RequirementMJREONew Regime 
1. PRC Court giving the judgment must be:– the Supreme People’s Court;
– a Higher People’s Court;
– an Intermediate People’s Court;
– a recognized Primary People’s Court, i.e. the Courts listed in Schedule 1 of the MJREO.		any PRC Court
2. Nature of Judgment capable of being recognizedmonetary judgments only– monetary and non-monetary judgments that are civil and commercial in nature;
– declaratory relief;
– orders for specific performance;
– orders for compensation and damages arising from criminal proceedings;
– intellectual property judgments  

included judgments: given in proceedings brought in respect of:
– a copyright or related right; – a trade mark;
– a geographical indication; 
– an industrial design;
– a patent;
– a lay-out design (topography) of integrated circuit;
– a right to protect undisclosed information;
– a right enjoyed by a person in respect of a new plant variety under Article 123 of the Civil Code of the PRC or under the Plant Varieties Protection Ordinance (Cap 490)  

excluded judgments:
– given in a tortious dispute over an infringement of an invention patent or utility model patent;
– given for a determination of the license fee rate of a standard-essential patent.
3. Other excluded judgments (besides those relating to intellectual property rights – see 2 above)– Judgments in insolvency, debt restructuring, and bankruptcy cases (there is separate legislation dealing with the recognition/enforcement of judgments in insolvency and bankruptcy proceedings, to be discussed in another part of the series);
– Judgments in certain arbitration matters (concerning the validity of arbitration agreements, setting aside arbitral awards and for recognition/enforcement of PRC arbitral awards) (there is separate legislation dealing with the recognition/enforcement of arbitral awards, to be discussed in another part of the series);
– anti-suit injunctions;
– interim relief (e.g. interlocutory injunctions);
– judgments in matrimonial cases (there is separate legislation dealing with the recognition/enforcement of judgments given in matrimonial cases, to be discussed in another part of the series);
– judgments concerning the administration or distribution of estates;
– judgments in certain maritime cases;
– judgments in certain administrative cases.		Same.
4. Finality of judgment– the judgment was given by the Supreme People’s Court;
– the judgment was a judgment of the first instance given by a Higher People’s Court, an Intermediate People’s Court or a recognized Primary People’s Court, and no appeal is allowed or the appeal period under PRC law has expired;
– the judgment was a judgment of the second instance (unless the judgment was given by a recognized Primary Court);
– the judgment was given in a retrial by a Court higher in level than the Court whose judgment gave rise to the retrial.
– Deemed final if the PRC Court issues a certificate certifying that the judgment is final and enforceable in the PRC (can be proven to be otherwise).		Same – basically if the judgment was given by the Supreme People’s Court or the appeal period has expired and the case is not under a retrial, it is considered final.
5. Exclusive Jurisdiction Clause (or Choice of PRC Court Agreement)Parties must have agreed in writing that disputes arising from the underlying contractual documents shall be resolved exclusively in the PRC Courts.The dispute resolution clause written in the underlying contractual documents can provide for the non-exclusive jurisdiction of the PRC Court.
6. Actual jurisdiction to decide the case and enforceability in the PRCThe PRC Court must have actual jurisdiction to hear the case:
– Defendant must have an actual or a representative presence in the PRC Court accepted the proceedings.
– The PRC must be the place where the infringing conduct took place (e.g. breach of the disputed contract, committal of a tortious act).
– An actual connection exists between the dispute and the PRC.  

The judgment must also be enforceable in the PRC.		Same.
7. Grounds to set aside registrationBreach of procedural fairness and natural justice principles, e.g. defendant was not given a reasonable opportunity to be heard, defendant was not given notice.  

Manifestly incompatible with the public policy of HKSAR.  

Registered judgment was obtained by fraud.  

Case was accepted by the PRC Court after proceedings in respect of the same cause of action between the same parties were commenced in the HKSAR.  

A HKSAR Court has already given judgment on the same cause of action between the same parties and the judgment has already been recognized/enforced in HKSAR.		Same.

Impact of the New Regime and how the HKSAR Courts have interpreted its more liberal requirements

As the plaintiff’s registration application to the HKSAR Court is done on an ex parte basis, i.e. without the need to notify the defendant, only those cases in which the defendant challenged the Registration Order (by way of an application to set aside) will be reported. Making the landscape more uncertain is the fact that the vast majority of reported cases deal with the MJREO (the New Regime has come into existence for less than a year).

However, certain cases recently decided under the MJREO indicate that certain restrictions under the MJREO will continue to pose a problem for plaintiffs seeking registration under the new regime.

Challenging the dispute resolution clause in favour of the PRC Court vs challenging the underlying merits of PRC Judgment

The decision of the High Court (Court of First Instance) in 信达澳亚基金管理有限公司 v 宜华生科技股份有限公司  [2024] HKCFI 1957 (date of decision: 30 July 2024) demonstrates that although the merits of the underlying claim as decided by the PRC Court are not allowed to be questioned by the HKSAR Court, in considering whether a jurisdiction clause in favour of the PRC Court exists, the HKSAR Court will indirectly look into the “merits of the claim” in certain circumstances.

In this case, the Plaintiff purchased corporate bonds from the plaintiff company and the transaction was governed by a set of contractual documents: (a) a bond document issued to the investing public (募集说明书); (b) a bond trustee agreement entered into between the Plaintiff company and the trustee (受托管理协议); and (c) Rules of Bondholders’ Meetings. Besides the 1st Defendant, the rest of the Defendants (the 2nd to 5th Defendants) acted as guarantors. The PRC Court issued a judgment pinning liability on all the guarantor Defendants.

Upon engaging in a detailed analysis of the contractual framework, the HKSAR Court decided that the clause relied upon by the Plaintiff as the clause providing jurisdiction to the PRC Court derived from the bond trustee agreement but since the Plaintiff was not a party to the agreement, the Plaintiff should not be allowed to benefit from the jurisdiction clause, leaving the Plaintiff with no jurisdiction clause to rely upon and one of the key requirements of the MJREO unsatisfied. Further, the Court interpreted the contractual framework as conferring status solely on the trustee to sue the Plaintiff only AFTER due authorization has been obtained in bondholders’ meetings.

This case is a good reminder that in certain circumstances, the HKSAR Courts, in assessing whether certain requirements for recognition have been met, will indirectly look into the underlying merits of the case as part of the exercise of assessing if the “apparently-technical” requirements have been met.

As the exclusivity requirement is not in contention in the action, the decision serves as a precedent for cases decided under the New Regime (which does not require exclusivity of jurisdiction but does require that there be a clear jurisdiction clause naming the PRC Courts as the forum for dispute resolution).

What constitutes a final judgment and the treatment of PRC enforcement judgments (执行令)

It is common for plaintiffs in the PRC to seek an enforcement order (执行令) upon the rendering of a judgment granting damages and unlike in the HKSAR, the enforcement order is assigned a different case number. In some cases, plaintiffs will sue the borrower, obtain judgment against the borrower only, then start enforcement actions against both the borrower and the guarantor when the guarantor was never made a defendant in the original action.

Beware that the enforcement action has fully completed against the borrower before applying for registration of the judgment in the HKSAR Courts against the guarantor.

In 湖州升帮金融服務有限公司 v 杭邑生活科技股份有限公司 [2024] HKCFI 1464 (date of decision: 13 June 2024), the HKSAR Court set aside the Registration Order made against a guarantor not only on the basis that the judgment does not name a fixed or liquidated sum, but also because the enforcement process against the borrowers has not yet completed, and therefore the judgment is not considered to be of a final nature.

There are some cases where in the PRC enforcement proceedings, the PRC plaintiff joins the shareholder or a subsidiary of the defendant as a party. Under HKSAR law, this act would be a violation of the principle that the corporate veil cannot be pierced, i.e. the shareholder is a separate legal entity that is distinct and separate from the company held. The author questions whether the enforcement order granted by the PRC Court in this situation will be considered a “judgment” under the MJREO or the New Regime because in the HKSAR, one form of enforcement order is the garnishee order which is not considered to be a judgment (let alone a money judgment under the MJREO)[1]. Further, would piercing the corporate veil in this manner be contrary to public policy, making the judgment liable to be set aside?

Difficulty in proving exclusivity of jurisdiction

Although the New Regime does not require the presence of a clause in the contractual document giving jurisdiction to the PRC Court to resolve disputes exclusively, it does require clear language granting jurisdiction even if it is not exclusive. In Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2022] HKCFI 1027, much time and fees of expert witnesses were spent interpreting the following clause:

“Disputes arising from the performance of this agreement by the partners shall be resolved through negotiation. Where the partners are unwilling to resolve the disputes through negotiation or a consensus fails to be reached through negotiation, a lawsuit may be filed in the People’s Court where this contract is signed in accordance with the law.” [emphasis added]

「各合夥人履行本協議所發生的事蹟，應通過協商解決。合夥人不願通過協商解決或者通過協商不能達成一致意見的，可依法向本合同簽署地人民法院起訴。」

In the end, the HKSAR Court decided that the word, “may” (可) is permissive and does not confer exclusivity. This case serves as a reminder to contractual parties to seek legal advice on the wording of the dispute resolution/jurisdiction clause in the contract if the option of enforcing a judgment across the border is important.

Litigation is becoming increasingly complex due to the growing number of cross-border transactions and the vastly different legal systems in place in each jurisdiction. When in doubt, whether at the contract-signing stage or when a dispute arises, please seek the assistance of a legal professional.

If you would like our assistance, please do not hesitate to contact our Disputes Partner, Eunice Chiu, for a confidential discussion (+852 9169 4356 / +852 2186 1885).

[1] See 吳仲程 v 梁耀 [2016] HKEC 400 (CFI) (date of judgment: 16 February 2016) where despite the presence of an enforcement order in the PRC, the Plaintiff sought to register only the original judgment.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

What to do if there is issue regarding Testamentary Capacity?

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BACKGROUND

In our last article, ENSURING TESTAMENTARY CAPACITY FOR AGED AND INFIRM TESTATORS, we have discussed the importance of ensuring testamentary capacity for aged and infirm testators in the will-making process. The next issue then becomes: if we consider that there is issue regarding testamentary capacity, what should we do?

WHAT TO DO IF THERE IS ISSUE REGARDING TESTAMENTARY CAPACITY?

If your solicitor has concerns or doubts about your testamentary capacity, it is always advisable to instruct a medical practitioner to assess testamentary capacity. Whilst it is not necessary for the doctor tasked to be a specialist doctor with experience in diagnosing or treating of mental disorder or mental handicap or to be an Approved Doctor under s. 2(2) of the Mental Health Ordinance (Cap. 136), nevertheless, engaging a mental health expert, especially a psychiatrist, is always preferred and advised.

Usually, the psychiatrist will consider:[1]

1. Understand

Whether you are able to understand the information relevant to decision concerned:

  • Nature and purpose of the will
  • Risks and benefits of executing the will
  • Risks of not signing the will
  • Alternative and their risks and benefits

2. Retain

Whether you are able to retain the information long enough to make an effective decision;

3. Believe

Whether you are able to believe the information and to apply information realistically to own situation;

4. Weigh

Whether you are able to weigh the information in the balance to arrive at a choice – i.e. making a decision based on all the relevant factors (risks, benefits, short term outcomes, and long-term outcomes)

5. Express

Whether you are able to express the choice, through verbal or non-verbal means

If the psychiatrist considers there is testamentary capacity on the testator’s part, it is advisable to adhere to the “Golden Rule”, i.e. to have the psychiatrist to serve as a witness to your will.

HOW CAN OLN ASSIST?

At OLN, we provide initial consultation service regarding wills drafting. Our solicitors are experienced in assessing if the testator has the requisite testamentary capacity. In case of any issue, OLN can arrange mental health specialist doctor to assist in conducting an assessment for client to ascertain his/her testamentary capacity. If you have any questions on the above, please contact our Partner Mr Jonathan Lam or our Associate Mr Dexter Yuen.

[1] Dr. Gabriel B K Hung, “Framework for clinical assessment of mental capacity in older adults” (The Hong Kong Mortgage Corporation Limited, presentation material for HKMC Seminar dated 28th July 2013), available at https://www.hkmc.com.hk/files/page/82/2.%20Framework%20for%20clinical%
20assessment%20of%20mental%20capacity%20in%20older%20adults%20%20Dr.%20Gabriel%20Hung.pdf accessed at 3rd January 2025.


Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Ensuring Testamentary Capacity for Aged and Infirm Testators

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BACKGROUND

Population ageing has become a challenge to most metropolitans in the world. Similar to other developed economies such as the United Kingdom and Japan, Hong Kong is also facing a serious problem of aging population. The phenomenon of population ageing is expected to continue, with the median age of Hong Kong’s population estimated to reach 55.5 in 2046[1]. 

As a result, many people have become more open-minded about the discussion of those end-of-life issues, including will preparation and estate planning.

That said, before you rush to instruct solicitor to prepare a will, you must understand that you can only make a valid will when you have testamentary capacity.

But what does it mean to have testamentary capacity? How far does the assessment exercise go?

TEST ON TESTAMENTARY CAPACITY

The principles set out in the UK landmark authority of Banks v Goodfellow[2] remains the standard for determining testamentary capacity in Hong Kong. When being assessed on testamentary capacity, as a testator you must:

  • understand the nature of the act of making the Will and its effects;
  • understand the extent of the property being disposed of
  • comprehend and appreciate the claims to which you ought to give effect.

In Re Estate of Au Kong Tim (Wills: Validity),[3] the Court of Appeal of Hong Kong emphasised the importance of solicitors following this three-limb test, as well as referring to the checklist in the “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” (the “Checklist”) for assessing testamentary capacity.

THE CHECKLIST

According to the Checklist, the three-limb test is particularised as follows:

1. Understand the nature of the act of making the Will and its effects:

You should understand:

  • you will die
  • your Will shall come into operation on your death, but not before
  • you can change or revoke the Will at any time before your death, provided you have the capacity to do so

2. Understand the extent of the property being disposed of:

You should understand and make choices:

  • who should be appointed as executor(s) (and perhaps why they should be appointed)
  • who gets what under the Will
  • whether a beneficiary’s gift is outright or conditional (for example, where the beneficiary is only entitled to the income from a lump sum during his or her lifetime, or is allowed to occupy residential property for the rest of the beneficiary’s life)
  • that if you spend your money or give away or sell your property during your lifetime, the beneficiaries might lose out
  • that a beneficiary might die before you
  • whether you have already made a Will and, if so, how and why the new Will differs from the old one

3. Comprehend and appreciate the claims to which the testator ought to give effect:

Crucially, the judge in Banks v Goodfellow used the word extent, rather than value. There could also be practical difficulties when investments are managed by somebody else, and there are no recent statements or valuations.

In these cases, a reasonableness test should be applied by your solicitors to any estimate you give about the extent of your wealth.

You should understand:

  • the extent of all the properties owned solely by you
  • the fact that certain types of jointly owned properties might automatically pass to the other joint owner, regardless of anything that is said in the will
  • whether there are benefits payable on your death which might be unaffected by the terms of their will (insurance policies, pension rights, etc)
  • that the extent of your properties could change during their lifetime

4. Potential claim of others:

You should be able to comprehend and appreciate the claims to which you ought to give effect. As a testator, you have the right to ignore these claims, despite being up to the extent of being prejudiced or capricious. You must be able to give reasons for preferring some beneficiaries and, perhaps, excluding others. For example possible beneficiaries:

  • may already have received adequate provision from you
  • may be financially better off than others
  • may have been more attentive or caring than others
  • may be in greater need of assistance because of their age, or physical or mental disabilities

HOW CAN OLN ASSIST?

At OLN, we provide initial consultation service regarding wills drafting, as well as advisory work regarding testamentary capacity. Our solicitors are experienced in assessing if the testator has the requisite testamentary capacity. In case of any issue, OLN can arrange mental health specialist doctor to assist in conducting an assessment for client to ascertain his/her testamentary capacity. If you have any questions on the above, please contact our Partner Mr Jonathan Lam or our Associate Mr Dexter Yuen.

[1] Yiu, William and Ng, Kang-Chung, “Hong Kong going grey faster than expected, sparking fears over healthcare, calls for new retirement policies” (South China Morning Post, 17 August 2023), available at https://www.scmp.com/news/hong-kong/society/article/3231335/hong-kong-going-grey-faster-expected-sparking-fears-over-healthcare-calls-new-retirement-policies, accessed on 8 January 2025.

[2] (1870) LR 5 QB 549.

[3] [2018] 2 HKLRD 864.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.