Cross-Border Inheritance: Mainland Rules or Hong Kong Rules? — A Two-Jurisdiction Contest Triggered by a Single Will

2026/10/14

Mr. Chen, during his lifetime, frequently travelled between the Mainland and Hong Kong. He owned a property in Shenzhen and held deposits and securities in Hong Kong. He left a will designating his nephew in the Mainland and his daughter in Hong Kong to inherit different portions of his estate. After Mr. Chen passed away, the nephew, relying on the will, applied in the Mainland to transfer the property into his name, while the daughter applied in Hong Kong for grant of probate. Both sets of proceedings were commenced simultaneously, and neither side was prepared to yield. A cross-border inheritance contest thus erupted.

Such cases are becoming increasingly common. As integration between the two places deepens, Mainland-Hong Kong inheritance matters have become a core category of family litigation. However, the Mainland and Hong Kong belong to the civil law system and the common law system respectively, and their succession regimes differ fundamentally. A moment's carelessness may result in a will being "valid on one side but invalid on the other."

Core Conflict One: Whose Rules Govern the Validity of the Will?

The Mainland adopts a "statutory formalities" approach to wills, under which no formal requirement may be dispensed with. The six statutory types — holograph wills, witnessed wills, notarial wills, printed wills, audio-recorded wills and video-recorded wills, and oral wills — each carry mandatory requirements. A printed will must be signed page by page; an audio-recorded or video-recorded will must capture the testator's likeness and the date. The absence of any one formal requirement may render the will directly void.

Hong Kong, by contrast, adopts a "substantive review" approach, centred on the testator's true intention. Provided that the core requirements of "writing plus two witnesses" are satisfied, minor formal defects may be cured by application to the court and by adducing evidence of the testator's true intention.

This means that a will that is unimpeachable by Mainland standards may, in Hong Kong, be called into question on account of a different mode of witnessing; and a will regarded as valid in Hong Kong may, in the Mainland, be invalid for failure to comply with the prescribed form. Mr. Chen's will finds itself caught in precisely this gap.

Core Conflict Two: In the Absence of a Will, Who Takes First?

Hong Kong's Intestates' Estates Ordinance emphasises "priority protection of the spouse's interests," with distribution refined according to the proximity of kinship and the existence of a spouse and children. The Mainland, by contrast, deals with the matter according to the statutory order of succession. If a Hong Kong resident wishes to protect his or her parents' interests, reliance on intestate succession alone may prove futile; arrangements such as designating beneficiaries under a life insurance policy or establishing a family trust must be put in place in advance.

Core Conflict Three: Procedure and Jurisdiction — Two Separate Systems.

In the Mainland, the process is "decentralised handling plus notarisation/litigation support": real property, equity interests and bank deposits are dealt with by different institutions, and the process depends principally on a notarised certificate of inheritance or a court judgment. In Hong Kong, by contrast, the Probate Registry of the High Court conducts a unified review, and the core document is the Grant. Where there is a will, an application is made for grant of probate; where there is none, an application is made for letters of administration. Legal documents of the two places are not yet mutually recognised, so where assets are situated in both places, the procedures must be handled separately and advanced in parallel.

As to jurisdiction, the Mainland determines it by reference to "the domicile of the deceased plus the place where the principal assets are situated," whereas in Hong Kong the Court of First Instance of the High Court has exclusive jurisdiction. Where the principal assets are in the Mainland, choosing a Mainland court facilitates investigation, evidence gathering and enforcement; where the principal assets are in Hong Kong, or where Hong Kong law may need to be applied, the Hong Kong High Court should be chosen.

Lawyer's View: In Cross-Border Inheritance, the Greatest Risk Is "Going It Alone."

The eventual outcome of Mr. Chen's case depends on how lawyers in the two places coordinate. Cross-border inheritance is not simply a matter of "handling it once in each place"; it is a comprehensive contest involving applicable law, validity of the will and choice of jurisdiction. A single will must satisfy the rules of both places; a single dispute requires anticipating the procedures of both places.

Lawyer's Recommendations:

First, plan ahead. When making a will involving Hong Kong, satisfy the formal requirements of the statutory types under Mainland law while at the same time complying with Hong Kong's two-witness rule; record a video of the making of the will and retain witness statements to corroborate the testator's true intention.

Second, make good use of non-succession tools. Designating beneficiaries under a life insurance policy or establishing a family trust can circumvent the restrictions of the statutory order of succession and achieve directed wealth transmission more reliably.

Third, once a dispute arises, first clarify the court with jurisdiction and the applicable law. Where the principal assets are in the Mainland, choose a Mainland court; where the principal assets are in Hong Kong, or where Hong Kong law may need to be applied, choose the Hong Kong High Court and instruct Hong Kong solicitors to handle the procedure.

Fourth, it is essential to instruct professional lawyers familiar with the laws of both places to act in coordination. Cross-border inheritance involves complex issues such as the procedures of both places, the obtaining of evidence and the mutual recognition of legal documents; going it alone makes it all too easy to fall into pitfalls. The value of a lawyer lies not only in conducting litigation, but also in planning ahead, making accurate predictions and providing support throughout the process.

Cross-border inheritance involves different rules and cumulative risks. Early planning, early advice and early coordination are the most responsible arrangements one can make for one's family.