The Grant of Representation of an Estate.
In a previous article we stated that having a basic Hong Kong Will in place is almost as important as having a proper health insurance. We assume or at least hope that many of you have now followed up on this advice, i.e. you have put your Hong Kong Will in place, but that you might wonder what the exact process would be upon death and whether or not such process would be without any legal challenges!
The executor(s) of a deceased person that has left a Hong Kong Will, also called the personal representative(s), 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 proved 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 application can be applied for by the personal representative him/herself, often he/she requires the assistance of a local solicitor, especially when international elements play a role, such as different nationalities/domiciles of the deceased person and/or when the Estate of the deceased person is situated in different countries. Common documents that have to be submitted when applying for such Grant of Representation are: Apart from a Hong Kong Identity Card and a Death Certificate, the applicant would need to file and submit to the High Court the original Hong Kong Will, an Affidavit, a Schedule of Assets and Liabilities & 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.
Common documents that have to be submitted when applying for such Grant of Representation are: Apart from a Hong Kong Identity Card and a Death Certificate, the applicant would need to file and submit to the High Court the original Hong Kong Will, an Affidavit, a Schedule of Assets and Liabilities & 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.
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 are 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, i.e. one has to 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/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/her own Hong Kong Will, especially when there are suspicious circumstances under which the Hong Kong Will was drafted and signed.
As stated above already, the probate process will become more complicated and therefore more open to legal challenges when the deceased had more than 1 nationality or domicile and/or had assets situated in different countries. Main issue would be in such case the law of succession, i.e. the succession laws of which country can be applied? Would the succession law of one country be preceding over the other succession law of the other country or can both laws apply at the same time, but then to different assets of the deceased?
A person born in Hong Kong moves before the handover to the Netherlands and acquires, amongst other, the Dutch nationality. The person makes a Hong Kong Will in relation to real estate in Hong Kong, but has also 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 case by the sisters (and the Probate put on hold by means of a so-called caveat) as they might want to claim that the Hong Kong Will never could have been made / 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 still had another nationality, such as the Chinese nationality, despite not having a Chinese / HK passport? Is the nationality as such even important to decide or not the Hong Kong Will could be made / 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.
When drafting a Hong Kong Will always ask yourself whether the Will is likely to be challenged by any parties including the Court and how such potential risks can be reduced to a minimum.
Written by: Willem Hoogland, Trainee
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