立遺囑對處置香港、內地及海外遺產的重要性 Importance of Will concerning property in HK, PRC and overseas.

立遺囑對處置香港、內地及海外遺產的重要性

遺囑是指根據法律要求而立的書面文件，用作處置立遺囑人的遺產，包括海外遺產。如果死者生前沒有有效的遺囑，位於香港的遺產將按香港法律第73條《無遺囑者遺產條例》的原則分配給受益人。不過此條例不一定適用於海外資產，死者家屬可能因此無法追討。

LI CHOK HUNG v LI PUI CHOI [1842-1910] HKC 322 一案中正反映沒有遺囑對海外資產的影響。此案涉及死者在中港兩地的遺產。死者生前沒有立下遺囑，法庭認為遺產管理人獲香港法律受權處理的遺產只限於香港以內的。相反，如果死者生前訂立遺囑的話，授托人則有權按遺囑的條文處理海外的遺產。本案中，遺產管理人的權力限制在香港的司法管轄權以內而不能夠追討死者在內地的遺產。

由此可見，無論是內地或者其他國家的資產，大家都應以遺囑預先安排身後的處置方法，以免繼承人可能無法繼承海外遺產。

Importance of Will concerning property in HK, PRC and overseas.

Wills are written document executed in accordance with formalities to allow the testator to dispose his estate, including his foreign assets on his death according to his will. Hong Kong law provides the rules to dispose properties if a person is intestate under the Intestates’ Estates Ordinance (Cap.73), but this would be problematic especially if there are properties outside the jurisdiction of Hong Kong.

The problem of intestate estates can be illustrated in the case of LI CHOK HUNG v LI PUI CHOI [1842-1910] HKC 322. The case involved ancestral properties in China. It was held that the grant of administration of an intestate’s estate was strictly territorial in its operation. The judge commented that if the property in question was under a will, it would have extended to property abroad. However, in the case of an administrator of an intestate, his power is unlike a trustee/an executor under a will, would be limited to a property within the jurisdiction. Therefore, the plaintiff failed to claim the property in China because the power of the Hong Kong grant is confined within the jurisdiction. This was especially the case when the deceased was domiciled outside Hong Kong and foreign law applies.

Therefore, the ruling above does not only apply to properties in PRC, but also to other overseas properties where the estate is intestate. Beneficiaries may not be able to receive properties abroad if the deceased did not make a proper will.