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If you have assets in multiple jurisdictions, sooner or later the question arises on how to manage your estate so that your interests are protected after death. The most straightforward answer is making a will. The design of a will, however, depends on the jurisdiction in which the will is to take effect and your choice of law.
There are differences between a one-sided German and Hong Kong will. This illustrates the importance of accurate and careful planning and drafting regarding the requirements for a valid will.
German wills must be handwritten and signed or recorded by a notary public
For a German will, the following requirements must be met:
the testator must make the will with testamentary intent and do it in person;
the testator must be capable of making a will at the time it is made;
the will must be formally valid, either handwritten and signed or recorded by a notary public (with the exception of an emergency wills);
the will must not be invalidated due to previous testamentary dispositions restricting the testator's testamentary capacity.
Only Hong Kong wills require two witnesses, German wills do not
On the other hand, in Hong Kong:
the will must be in writing and signed by the testator (or by someone at the testator's direction and in the testator's presence);
the will must be an honest and true reflection of the testator's wishes;
the testator must sign the will in the presence of at least two witnesses, both of whom must also sign in the presence of the executor of the will.
Hong Kong allows signatures by an authorised representative, Germany does not
A closer comparison of the requirements of the two legal systems for a will reveals differences especially regarding the form of the will.
In both legal systems, it is important that the last will is signed by the testator. While in Germany the signature can only be made by the testator personally, in Hong Kong it is possible to authorise a representative.
Wills are revoked by a newer will that contradicts the old one
In Hong Kong, it is also a requirement that the will is signed in front of two witnesses. However, these witnesses must not be beneficiaries of the will and must be of legal age. In Germany, witnesses are not necessary at all. This means that until the death of the testator, there can also be uncertainty as to whether there is an intestate succession or whether the succession is according to the legal requirements since no one has to know about the will.
There is one common feature regarding the revocation of a will in both Germany and Hong Kong. A will is revoked by a newer will that contradicts the old one. This can be done by revocation, by deleting or destroying individual passages or the entire will.
A divorce in Germany invalidates a will that includes the divorced spouse
However, the influence of marriage on a will is handled differently. In Hong Kong, both the marriage and dissolution of a marriage have an influence on a will. In contrast, in Germany, the conclusion of a marriage has no effect on the will, but a divorce of a marriage does. If a marriage is divorced in Germany, a will becomes invalid if it includes the divorced spouse, unless it was otherwise intended by the testator.
Draw up two separate wills in Hong Kong; Germany has the "Berliner Testament"
It is common for husband and wife in Germany to draw up a common will, i.e. “Berliner Testament”, which can have several advantages. However, such common wills are usually not used in Hong Kong since the advantages of the German law for such wills cannot be found in Hong Kong. Thus, in Hong Kong it is usually recommended to draw up two separate wills for a couple.
Germany offers joint wills and contracts of inheritance
As a result, there are many regulations that are similar in some ways but can differ significantly in the details. Precisely these details, however, can decisively determine the validity or invalidity of a will. In addition to all the above, Germany offers the possibility of a joint will or contract of inheritance. These instruments, however, are subject to special requirements. And they give the testator other options, just like a corresponding will in Hong Kong.
The above examples show that it is advisable to deal with the requirements in a will in detail to ensure that your will and testament actually remain the last will and testament.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
For specific advice about your situation, please contact:
Managing Partner
+852 2388 3899