News of power and inheritance struggles involving high-profile individuals, like casino king Stanley Ho or the late billionaire NinaWang, never fails to draw public attention. This is probate law at arguably its most fascinating, though as practicing lawyers know, the area is much more than the semblance of a reality show.
Hong Kong Lawyer talks to Mr. Billy Ma Wah Yan, a leading member of the Law Society’s Probate Committee who has more than four decades of experience in this area, about this particular practice.
“Generally, everyone who is interested in these areas will benefit from all the reports in the public domain,” he tells Hong Kong Lawyer.
Over years of practice, he also noticed that the mindsets of the public and government have evolved where this issue is concerned.
“It used to be the case that the Chinese would avoid issues surrounding death. Such an attitude has changed over time.” he notes.
Thanks partly to heavy media reporting and television dramatisation, for one, executing a will to manage one’s assets is no longer regarded as taboo today.
The Hong Kong Probate Regime
In Hong Kong, says Mr. Ma, the most relevant ordinances to probate law and practice are: the Probate and Administration Ordinance (Cap. 10) , Wills Ordinance (Cap. 30) and Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). If a child is involved, the Parent and Child Ordinance (Cap. 429) may also be relevant. The Probate Registry of the Hong Kong High Court remains the gatekeeper of applications for all kinds of Grant of Representation, which gives one the legal right to deal with the estate of the deceased.
“In Hong Kong, there is now concord on succession laws,” Mr. Ma says.
For example, before the abolition of estate duty in 2006, Estate Duty Clearance - obtained after the required duty had been paid in dutiable case or in exempted case - was needed before an application can be made for a Grant of Representation. With it gone, it now takes lesser time to complete a probate application.
Plus, with the benefit of the prescribed forms and the Guide to Non-Contentious Probate Practice issued by the Judiciary, non-contentious probate applications for the Grant of Representation are often straight forward. All these represent progress in probate practice, Mr. Ma notes.
However, probate cases remain “very challenging and complicated” partly because each one is markedly different.
“Since each application has its own family background and characteristics”, Mr Ma stresses, “it still takes some time to complete some probate applications”.
This varies from one case to another. A simple and straightforward case may take about two to three months on average, while a complicated one with complex estates will naturally take much longer, he says.
“There are still many complicated non-contentious probate applications and you may have to wait at least six weeks after lodging a response to the requisitions to complete the application.”
“Perhaps the judiciary should consider recruiting more probate officers or probate lawyers to improve the situation,” Mr. Ma mulls.
The issue of domicile has an important role to play in the probate applications regarding the devolution of the deceased assets, in particular to the movable assets. Probate applications for the deceased died domiciled in Hong Kong are considerably simpler. Whenever an application involves foreign elements and aspects, the processes involved will be more difficult and complicated.
In an international city as Hong Kong, it is “not incomprehensible” to have the deceased died domiciled outside Hong Kong leaving assets in Hong Kong. Those applications, including the deceased died domiciled in Mainland China, are governed by Rule 29 of the Non-Contentious Probate Rules (Cap. 10A). Under Rule 29, separate procedures and more documents are required in support of such applications.
While acknowledging Hong Kong as a good probate law regime, Mr Ma indicated his hope for “more simplification of the areas of the practice under Rule 29”.
The Practice of Probate
The ultimate goal of probate applications is to enable the successor of the estates to unfreeze the assets as well as liabilities owned by the deceased, Mr. Ma says. Before making a probate application, he advises, a solicitors should first seek clear and accurate instructions from clients to ensure who are entitled to apply for the Grant of Representation and what exact documents are required in support of such applications. This is extremely crucial.
“You may also need to apply your common sense as to whether your client is the person entitled to the Grant (of Representation),” says Mr. Ma.
Homemade wills, drawn up without witnesses or with obliteration, interlineation or other alterations, are not uncommon. Wills which are unclear or fall short of formality usually end up with lengthy application or even litigation. Therefore, special attention is also required where such homemade documents are concerned.
Due to the variety of assets and liabilities, inevitably, knowledge of different areas of laws is required for probate practice.
“Dealing with probate matters opens the doors to all kinds of legal practice,” Mr Ma adds.
Probate practice is simpler when only bank accounts and personal chattels are involved in the deceased estates. However, this is usually not the case
For example, where public stocks are concerned, “depending on the holding, you may end up to providing legal advice over the compliance of the securities laws and may involve in the take-over of the controlling interest of the deceased in public companies. These are all very interesting legal work,” Mr. Ma elaborates.
Or where real estate is involved, one will be dealing with “conveyancing works, including but not limited to sale, assenting of the properties to the beneficiaries and even re-development”, while dealing with overseas assets exposes one to succession laws in other jurisdictions, he adds.
“Of course, if you are involved in contentious matters, they will cover many many other areas,” Mr. Ma continues, enthusiasm for his work peeking through.
Such cases take varied forms in Hong Kong, he notes. If the deceased died testate domiciled in Hong Kong, given the application has to be based on a valid will, the validity issue of the will may arise, such as in the case of late tycoon Ms. Wang. Another example that Mr. Ma came across is where the original will was lost, and no consensus could be reached amongst the family members in admitting a copy of the lost will. Other contentious issues include the validity of marriage of the deceased, the legal status of the children, ie. natural or/and lawful, and the testamentary capacity of the testator. These probate applications can hence be rather complicated and time consuming, though their intricacies can also mean an interesting in-depth look into a myriad of laws.
Current probate market
Stressing that it takes more than a chat with Hong Kong Lawyer to explain fully the challenges of today’s probate practice, Mr. Ma nevertheless lets us in on some of his thoughts concerning the issue.
For instance, on a practical level, even with more lawyers choosing to specialise, many law firms, both big and small, are reluctant to take up probate practice, not only because this may not be as rewarding as other areas, but could also be unproportionately “risky and burdensome”, he says.
“Sadly, one of the big local firms recently closed its probate practice,” Mr. Ma observes.
A market is all about demand and supply and the probate market is of no exception. To improve the Hong Kong probate practice, issues at both ends have to be addressed, he adds.
On the demand side, simplifying the Grant of Representation further, regardless of whether the deceased died testate or intestate, and whether he/she was domiciled in Hong Kong, can lead to “more people willing to keep their personal wealth in Hong Kong”, thus increasing the demand for probate services.
Concurrently, the legal profession, ie. the supply side, can be exposed to even “more educative information as to how to take instructions and prepare a will”, which will also help minimise the risks of being challenged after the death of the testator, says Mr. Ma.
Speaking from his experience, even though probate practice remains “reasonably remunerated”, individuals who want to specialise in the area might do well not to look at it from a “marketability” standpoint but to treat it “as an interesting practice of multi-legal matters”.
Passion for probate
For Mr. Ma though, the practice of probate goes further than just legal work. He believes that the legal profession is about helping clients and making their lives easier since “losing a loved one understandably means going through some of the most difficult times in one’s life”.
“Bear in mind, when probate clients approach you for legal assistance, their families have already suffered a big loss,” Mr. Ma says.
When probate clients seek legal advice, they may well be puzzling about what needs to be done to the deceased’s frozen assets. Some of them may be desperate for immediate or prompt release of the assets to maintain their families’ livelihood. To these clients, “patience is key”.
For example, legislation empowers the Probate Registrar to make inquiries, and there is no greater frustration than receiving requisitions from the Registry repeatedly for each of the applications, Mr. Ma says. To avoid desperation, probate practitioners should always ensure all applications are correctly prepared while making use of the opportunity to discuss the initial requisitions with the Probate Officer to find out exactly what the issue is.
“You need to provide comfort to clients before explaining all the rights and entitlements under the succession laws and advising them what needs to be done in order to secure the Grant of Representation,” Mr. Ma adds.
“It is also very important to let them know the legal costs and disbursements.”
All probate cases, Mr. Ma admits, contentious or non-contentious, are difficult in their complexities. What keeps him going, he says, is satisfaction through helping grieving families. By the same token, he also enjoys helping individuals plan their estates in advance so that they may avoid potential hassle down the road.
His most satisfying moment at work, he says, is when he receives the fax of the notification from the Probate Registry to collect a Grant of Representation.
“Helping a family get the Grant (of Representation) is a very joyful achievement,” Mr. Ma adds.
In addition to the legal knowledge gained and improving his tactics in dealing with people, probate practice also brings him other benefits.
“In most cases, clients will treat you as a family friend and will continue to seek your assistance on their legal affairs.”
But to achieve this, Mr. Ma concludes, “whatever you do in probate practice, you must do it with a heart of love”, an attitude imparted to him by his late mentor Peter AL Vine. To this end, Mr. Ma will like to renew his heartfelt gratitude to Mr. Vine, a former President of the Law Society and a staunch advocate of the advance of legal education in Hong Kong (see Mr. Ma’s article “In Memoriam: Remembering Peter Alan Lee Vine (1921 – 2005)” in the May 2005 issue of Hong Kong Lawyer).