What is due execution of will
The due execution of will is governed by the provisions in Cap. 10A, Non Contentious Probate Rule
＊ Rule 10 states evidence as to due execution of will
(1) Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the will, he shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed:
Provided always that if a will is in Chinese characters and appears to be satisfactorily executed by the testator the Registrar may assume without further inquiry that the will has been properly executed.
(2) If no affidavit can be obtained in accordance with the last foregoing paragraph, the Registrar may, if he thinks fit having regard to the desirability of protecting the interests of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the will.
(3) If the Registrar, after considering the evidence-
(a) is satisfied that the will was not duly executed, he shall refuse probate and shall mark the will accordingly;
(b) is doubtful whether the will was duly executed, he may require the matter to be referred to the court on motion.
＊ Rule 12 states evidence as to terms, condition and date of execution of will
(1) Where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by the Wills Ordinance (Cap 30) or by the reexecution of the will or by the execution of a codicil, the Registrar shall require evidence to show whether the alteration was present at the time the will was executed and shall give directions as to the form in which the will is to be proved: Provided that this paragraph shall not apply to any alteration which appears to the Registrar to be of no practical importance.
(2) If from any mark on a will it appears to the Registrar that some other document has been attached to the will, or if a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the Registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may think fit.
(3) Where there is doubt as to the date on which a will was executed, the Registrar may require such evidence as he thinks necessary to establish the date.
＊ Rule 13 states attempted revocation of will
Any appearance of attempted revocation of a will by burning, tearing, or otherwise, and every other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the Registrar’s satisfaction.
＊ Rule 11 states execution of will of blind or illiterate testator
Before admitting to proof a will in the English or Chinese language which appears to have been signed by a blind or illiterate testator or a testator not having a literate knowledge of that language or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the Registrar shall satisfy himself that the testator had such knowledge.
＊ Rule 14 states affadivat as to due execution, term, etc. of will
The Registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 11, 12 and 13, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a will the deponent shall depose to the manner in which the will was executed.
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In practice, if the will was prepared by a firm of solicitors and executed before its solicitors or clerks, no requisition will be raised by Probate Registry to confirm that the will was duly executed or interpreted to the deceased even where there is no interpretation clause or the deceased only executed the will by affixing his finger print, putting a cross/chop or signing in a language different from that of the will.
Regarding Rule 12(2), if there exist unusual features on the will, the handling solicitors should file an affidavit by the applicant (or a person who can account for the unusual features) to account for any obliterations, interlineations, corrections, alternations, clip marks, pin holes and punch holes, etc.