3. What precautions should be taken when drafting a Will?
i) Construing the Will
Two general assumptions are typically made by the Court when interpreting a will, unless they are successfully challenged or rebutted: i) ordinary meaning is to be given to ordinary words; and ii) technical meaning is to be given to technical words.
ii) Admissibility of extrinsic evidence
S.23B of Wills Ordinance (Cap. 30) provides that extrinsic evidence relevant to a testator’s intention may be admitted to assist the Court’s interpretation of the will under the following circumstances:-
- in so far as any part of it is meaningless;
- in so far as the language used in any part of it is ambiguous on the face of it; and
- 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.
iii) Rectification of Wills
Under s.23A of the Wills Ordinance (Cap. 30), the Court has the power to rectify a will if the will fails to carry out the testator’s intention due to a clerical mistake or a failure to comprehend his instructions.
An application shall be made within 6 months since the first grant of representation, otherwise, leave of the Court must be obtained.
iv) Incorporation by reference (of separate independent document to form part of the Will)
The document must be:
- clearly identified in the will;
- in existence at the date of the will; and
- referred to in the will as being in existence.