Having a basic Hong Kong will in place is almost as important as having proper health insurance. Therefore, for this article, we assume that you have a Hong Kong will, but that you are wondering what the exact process would be upon death and whether or not this process could encounter any legal challenges.

Explaining probate

The executor of a deceased person that has left a Hong Kong will, also called the personal representative, would in such circumstances need to apply for a grant of representation from the Hong Kong High Court, broadly called probate. Basically, this means that the Hong Kong will needs to be proven as being valid and the grant itself would be the evidence that the personal representative can ‘deal’ with the assets of the estate in accordance with the will.

Although such an application can be applied for by the personal representative, often he or she requires the assistance of a local solicitor, especially when international elements play a role, such as different nationalities or domiciles of the deceased person, or when the estate of the deceased person is situated in different countries.

Common documents that have to be submitted when applying for such a grant of representation are a Hong Kong identity card and a death certificate. The applicant would also need to file and submit to the High Court the original Hong Kong will, an affidavit, a schedule of assets and liabilities, and an accompanying affidavit verifying this schedule including the payment of a fee. The High Court will then consider the submitted documents and may raise requisitions.

Potential pitfalls

Obviously, a Hong Kong will needs to comply with certain formalities in order be valid. In Hong Kong these rules are governed by the Wills Ordinance (Cap. 30) and the major formalities are related to the fact that the Hong Kong will needs to be in writing, signed in a particular way and the presence of witnesses is required. If any of these formalities are in doubt, requisitions may be raised by the court and other interested parties.

Next to that, the testator needs to have the capacity to make a Hong Kong will. For example, according to the Wills Ordinance, the testator needs to be at least 18 years old, but exceptions exist for married minors.

In addition, the testator must have the mental capacity; that is, must be of sound disposing mind and have sufficient capacity to deal with and appreciate the various dispositions of property to which the testator is about to fix his or her signature. In case of any potential weaknesses, one of the witnesses to the Hong Kong will should be a medical doctor that is able to assess and state the capacity of the testator.

It should be noted that apart from capacity, a testator should also have the knowledge of and give approval to the content of his or her own Hong Kong will, especially when there are suspicious circumstances under which the Hong Kong will was drafted and signed.

As stated above, the probate process will become more complicated and therefore more open to legal challenges when the deceased had more than one nationality or domicile, or had assets situated in different countries. The main issue in such a case would be the law of succession; in other words, the succession laws of which countries can be applied? Would the succession law of one country take precedent over the succession law of the other country, or can both laws apply at the same time, but then to different assets of the deceased?

International example

A person born in Hong Kong moves before the handover to the Netherlands and acquires, among others, Dutch nationality. The person makes a Hong Kong will in relation to real estate in Hong Kong, but also has assets in the Netherlands. As a result of the Hong Kong will, the Hong Kong real estate assets will be distributed to the sons, whereas the daughters will be disinherited of these assets.

The Hong Kong will might be challenged in such a case by the daughters (and the probate put on hold by means of a so-called caveat) as they might want to claim that the Hong Kong will should not have been made, or is invalid, as the testator is a Dutch citizen and according to Dutch law children cannot be disinherited.

But, can it be argued that the testator, next to a Dutch nationality, also had another nationality, such as the Chinese nationality, despite not having a Chinese or Hong Kong passport? Is the nationality as such even important to decide whether or not a Hong Kong will could be made, or is valid? To answer these questions, one would be required not to only to look into the Nationality Law of the People’s Republic of China, but also into the international Convention on the Law applicable to Succession to the Estates of Deceased Persons.

In conclusion

When drafting a Hong Kong will, always ask yourself whether the will is likely to be challenged by any parties including the court, and consider how such potential risks can be reduced to a minimum.