For cross-border residents and overseas Chinese, one of their concerns is how to effectively make a valid testament (will) to dispose their assets located in the Mainland China and/or in Hong Kong SAR. In this article, we will shed some light on how to make a cross-border will to dispose assets in the Mainland China and Hong Kong.
Hong Kong Resident to Make a Will to Deal with Assets in Mainland China
In short, it is advisable that Hong Kong resident who want to make a will to deal with assets in the Mainland China shall make such a will in Hong Kong under the assistance of a Hong Kong solicitor. This is because the validity of the will made by a Hong Kong resident will most probably governed by Hong Kong law. Therefore, a Hong Kong solicitor is the right person to seek advice from on making such a will. For more details, please see another article How Hong Kong Resident Make a Will to Dispose Assets in the Mainland China.
Mainland Resident to Make a Will to Deal with Assets in Hong Kong
For Mainland residents who want to make a will to deal with assets in Hong Kong, it is advisable that they can make a will before and with the assistance of a Mainland Notary Public. Alternatively, they can also make a will witnessed and assisted by a Hong Kong solicitor. This is because, under Article 24 of the Will Ordinance of HKSAR, a will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was
executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national. In another word, the will made by the Mainland resident shall be valid if it comply with either Hong Kong law (if it is executed in Hong Kong before a Hong Kong solicitor) or the Mainland law (law of his domicile place or habitual residence).
Overseas Chinese to Make a Will to Deal with Assets in Hong Kong and the Mainland China
For overseas Chinese whose domicile place or habitual resident is neither Hong Kong nor Mainland China and who wants to make a will to dispose assets in the Mainland China and/or Hong Kong, it is advisable that they make a will with the assistance of a local lawyer where the testator is domiciled or habitually resides according to the requirements on a valid will under the local law where the testator is domiciled. The testator can include the disposal of his/her assets in the Mainland China and Hong Kong in such a will made under the law of his/her domicile place. If the will made is valid under the law where the testator is domiciled or habitually resides, the validity of the will will usually also be acknowledged under the law of Hong Kong SAR and under the law of the Mainland China.
For any issue regarding making a will to dispose assets in Hong Kong and the Mainland China, please do not hesitate to contact us for an inquiry.
