Preparation of a will is not and should not be treated as a mere formal task.
Very often, it requires more than just faithfully recording the testator or the testatrix’ testamentary intentions in a document and making sure that it is properly executed in accordance with the Wills Ordinance.
A solicitor should take care as to how instructions are obtained for the will. He/she also be conscious of the rule in Barry v Butlin.
A solicitor should know the “Golden Rule” and be well advised to follow it. He should also follow the checklist set out in the Assessment of Mental Capacity: a Practical Guide for Doctors and Lawyers published by the British Medical Association and the Law Society.
A doctor who is asked to verify that the testator or testatrix has the mental capacity to make the will must also know what is required of him. Merely undergoing the Mini Mental State Examination (“MMSE”) may not suffice.
When advising the client on how to implement his/her testamentary wishes, the solicitor should know the rules against accumulation and perpetuity.
In cases where litigation is contemplated, a solicitor may be called upon to provide his witness statement as regards his role in the preparation of the will. He should be aware of the principle in Re Fuld and in Larke v Nugus.
Both the lawyer and the doctor involved should retain a good record of the process.

About the Speaker:

Mr. Benjamin Yu, SBS, SC, JP (余若海資深大律師), Visiting Professor (honorary), CUHK LAW

The Law Society of Hong Kong has awarded this seminar 1 Continuing Professional Development (CPD) point.