Hong Kong Trust and Probate Law: Landmark Decisions
- Anna Lau
- Aug 6, 2021
- 3 min read
Updated: Apr 24
Author: Anna Lau, Litigation Partner
“A revocable living trust allows your heirs to avoid probate entirely and keeps you in complete control of your finances while you’re alive. You can always make changes to what is in the trust and how you would ultimately like it managed or disbursed” - Suze Oman
The passing of Samsung’s late chairman Lee Kun‑hee saw his family paying over USD 10 billion in inheritance tax, marking one of the largest inheritance tax payments globally. With the COVID pandemic still fresh in many people’s minds, it is clear why proper estate planning is more essential than ever. Against this backdrop, below is a highlight of key Hong Kong trust and probate law decisions from recent years.
Major Trust and Probate Law Developments (circa 2020–2021)
Ho Tung Ming Oscar v Ho Fook Shing [2021] HKCFI 1046
This case re‑examined section 33(3) of the Probate and Administration Ordinance (Cap. 10), which empowers the Court to suspend or remove an executor or administrator where necessary for the proper administration of the estate and the interests of beneficiaries.
The Court clarified that removal does not require proof of wrongdoing but depends on whether removal is necessary for proper estate administration and in the beneficiaries’ interests.
A failure to render proper accounts may justify removal.
Ng Kit v Wu Tsun Hua [2021] HKCFI 877
This case revisited the law on gifts, clarifying that:
The burden of proof lies on the donee.
A gift requires intention, delivery, and acceptance.
A gift resting merely in promise is unenforceable.
Gifts between spouses require clear evidence.
Completed gifts are generally irrevocable.
The Court reaffirmed fundamental principles governing inter vivos gifts.
Re FSF (Enduring Power of Attorney) [2021] 1 HKLRD 1099
The Court reminded practitioners that applications under section 11(1) of the Enduring Powers of Attorney Ordinance must serve the donor’s interests, not the personal interests of applicants.
Judicial discretion must respect the donor’s autonomy and ascertainable wishes.
Chan King Hung v Chan Siu Kwan Paulie [2021] HKCFI 670
The Court summarised the principles for propounding a will, requiring proof of:
Due execution.
Testamentary capacity.
Knowledge and approval of contents.
Where suspicious circumstances arise, the proponent bears the persuasive burden on a balance of probabilities.
The Court reiterated the importance of avoiding adversarial conduct where possible.
Conclusion
Recent decisions highlight the importance of proper estate planning. Contentious probate disputes are among the most emotionally difficult civil disputes and often erode the very legacy the deceased intended to preserve.
Practitioners should prioritise the interests of the estate, encourage amicable resolution, and uphold the Underlying Objectives of the Court.
How Ravenscroft & Schmierer Can Help?
Navigating Hong Kong trust and probate law requires careful planning and sensitive dispute management. Ravenscroft & Schmierer advises on estate planning, trust structuring, probate applications, executor disputes, and contentious probate proceedings.
If you require advice on trust or probate matters, contact us to discuss your circumstances and available options.
FAQ: Hong Kong Trust and Probate Law
What is probate under Hong Kong law?
Probate is the legal process by which a will is recognised and authority granted to administer a deceased person’s estate.
When can an executor be removed by the Court?
An executor may be removed if necessary for proper estate administration and the interests of beneficiaries, even without proven misconduct.
What is required to prove a valid gift?
A valid gift requires intention, delivery, and acceptance, with the burden of proof on the recipient.
What must be shown to uphold a will?
The proponent must prove due execution, testamentary capacity, and knowledge and approval of the will’s contents.
How can Ravenscroft & Schmierer assist with probate matters?
Ravenscroft & Schmierer advises on probate applications, estate administration, and executor disputes.
Does Ravenscroft & Schmierer handle contentious probate cases?
Yes. We advise on will challenges, executor removal, and beneficiary disputes.
Can Ravenscroft & Schmierer assist with estate planning?
Yes. We advise on trusts, wills, and succession planning to minimise disputes.
This article is co-authored by Joshua Chu from ONC Lawyers.
Disclaimer: Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.
For specific advice about your situation, please contact:
Litigation Partner
+852 2388 3899
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