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What to Do if There is Issue Regarding Testamentary Capacity?
16 1月 2025
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.
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