A Question Of Will Power

There are lots of excuses but no reasons for failing to make a will.
While most people recognise that a will is probably the most important document they ever have to sign, Consumer Reports – a consumer research organisation based in the US – has recently reported that over 60% of adults in the US are intestate. Other surveys suggest that the number may be even higher, citing superstition, ignorance or laziness as the main reasons for people’s failure to tackle the issue. USA Today reports that many of those surveyed said that they did not have the time, although 30% conceded that they had never even thought about it.

Why do it?
Wills serve two principal purposes:
(1) they dispose of property and designate people to administer that property; and
(2) in the case of surviving children, they can be used to appoint a guardian to look after the children.

Indeed, the surveys show that the main reason why people make a will is to name the person who is to take care of their children.

Some of those surveyed thought there was no need to make a will unless they were conducting a sophisticated tax planning exercise. In fact, a will is essential for anyone who wants to leave their affairs in order and to provide for family members or other beneficiaries. If someone fails to make a will, then their estate will pass to members of their family as determined by the law. Given the sad frequency of family disputes, this is often not what people want to achieve.

Hong Kong wills
A will made in accordance with Hong Kong law generally covers the whole of an individual’s estate, both in Hong Kong and elsewhere in the world. For most expatriates, therefore, a will made in Hong Kong should satisfy all their requirements. There are exceptions, though, in the case of someone who holds property (or is domiciled) in a country where the law requires all or part of an estate to pass in accordance with its legal regime. Such laws or attendant tax considerations may make it advisable to draw up separate wills for assets in different countries. A person can make two or more wills, each covering assets in different countries, so that the assets in the various jurisdictions can be dealt with simultaneously.

Keeping up with events
In the US surveys, even those who have wills are not perfect. Over one in four of such testators have not changed their wills to keep up with the major developments in their lives. Most people are apparently unaware that wills can easily be changed and should be reviewed whenever there is a major shift in personal circumstances. Lawyers did notice a significant increase in instructions over wills after tragic events such as 9/11; but the majority of people are still ignorant of basic notions – for example, that marriage generally revokes an existing will.

It is likely that any survey in Hong Kong would produce similar results to the US studies. So, to the 60% of the population who haven’t yet made a will, we ask, “What’s your excuse?” We don’t know any good ones.

Nigel Bacon - Partner, Kennedys

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