遺產繼承 – 中港兩地遺產 Probate - Hong Kong property and PRC property

 遺產繼承 – 中港兩地遺產

不少人在中港兩地均擁有物業。在遺產承辦中，一般可分為有遺囑和無遺囑處理。

無論死者有沒有立遺囑，死者的居藉將影響遺產按哪一個地方的法律處理。由於不少人來往中港兩地頻繁，居藉的問題，特別是死者沒有立遺囑的情況下，可能存在爭議。Zeng Lifan and Another v Zeng Xingguo and Another [2019] HKCU 400此案正反映居藉對遺產承辦的重要性。該案的死者沒有立遺囑，死者的養兒嘗試成立父親在香港的居藉，因為根據香港的《無遺囑者遺產條例》，他可獲得死者的全部資產；根據大陸法的話他只能與死者的父母平分。由此可見，居藉影響遺產適用的法律，立遺囑可避免部分爭義。

如果死者在香港立下有效遺囑而在中港兩地均有資產，而死者在香港有居藉的話，那麼受益人繼承遺產是很可能需按香港法律辦理。若遺產沒有爭議，可找律師事務所代為辦理中國公証手續。

另一個大家可能會遇到的問題是如果在香港及其他地方立下遺囑，那麼這些遺囑有衝突嗎？根據《遺囑條例》第24條，香港法庭處理香港遺囑時不包括只針對外地資產的外地遺囑。在Tsang Grace Yee Man aka Grace Yee Man Tsang Ebtehadj v Tsang Willy [2020] HKCU 93一案中有三份於內地的文件列出死者就內地資產的安排。香港法官不但未能確定該文件是否附合內地遺囑的條件，更按照慣例不會處理只針對內地物業並與香港遺囑沒有衝突的遺囑。因此，原告因為這些文件與香港法律無關而未能指控被告沒有披露該內地文件。

如果你在中港兩地擁有資產又正考慮立遺囑，我們建議你諮詢兩地的律師以確保遺囑有效，並且注意在多地立遺囑會對遺產承辦的影響。歡迎致電或WhatsApp 69776708 林先生查詢報價及預約。

Probate - Hong Kong property and PRC property

Many people own properties in both Hong Kong and PRC. In terms of probate, however, the case is different if the deceased died with a will or is intestate.

The question of domicile arises whether the deceased made a will or is intestate. Domicile is a difficult question particularly people travel frequently between Hong Kong and China with properties in both places. The case in Zeng Lifan and Another v Zeng Xingguo and Another [2019] HKCU 400 highlights the general rule that the law of the deceased’s domicile will determine the law applied to the estate. In that case, the deceased was intestate. The son of the deceased tried to argue that his father was domiciled in Hong Kong not in the mainland, because he could have inherited the whole of the estate under the Intestate Estate Ordinance in Hong Kong, but would share with the Mother and Father of the deceased under PRC law. Therefore, domicile was a key issue in the intestate estate.

If the deceased died with a valid will in Hong Kong with assets in Hong Kong and China, the court is more likely to adopt Hong Kong if the deceased was domiciled in Hong Kong regarding the mainland properties. If the properties are non-contentious, the trustee can administer the mainland properties by making a notary in a law firm.

However, if there are wills in the mainland, the general practice is to exclude them if they deal solely with non-Hong Kong properties under s.24 of the Wills Ordinance. This can be illustrated in the case of Tsang Grace Yee Man aka Grace Yee Man Tsang Ebtehadj v Tsang Willy [2020] HKCU 931, in which the three Chinese Documents of the deceased in China was dealing exclusively with the mainland properties and the court was not even certain if they complied with the requirements of wills under PRC law. The plaintiff failed to claim non-disclosure of those documents in the Hong Kong probate administration. Therefore, the documents were excluded because they were out of jurisdiction.

If you are considering to make a will concerning properties in Hong Kong and PRC, you are advised to consult lawyers in both jurisdictions to make sure it complies with requirements and pay attention to the effect of wills made in different jurisdictions which may complicate the estate administration.