18 April 2011

Applications for Probate in the BVI for the Estates of Hong Kong Domiciliaries


Under the Probates (Resealing) Act 1967 (the ‘Act’), only grants of probate issued by a court of the United Kingdom, a Commonwealth jurisdiction or a dependant territory may be resealed in the BVI. A grant of probate issued in Hong Kong cannot be resealed. A fresh application for a grant of probate from the BVI court will therefore be needed.

The procedure for applying for a grant of probate is set out in the Supreme Court (Non-Contentious) Probate Rules 1986 (the ‘Probate Rules’). The Probate Rules state that an application must be set out in the prescribed form and accompanied by:

  • an affidavit in the prescribed form in support of the application, giving an undertaking to get in and administer the estate;
  • an affidavit by one of the person attesting the Will as to its due execution;
  • a certificate of death or burial (or cremation) of the deceased or an affidavit to the satisfaction of the Registrar for the non-production thereof;
  • an affidavit by the person making the application or by someone on his behalf that from a search made at the Registry it appears that no other application for probate or letters of administration of the same estate was previously made and that no other Will has been filed for probate;
  • the original Will;
  • copies of newspaper advertisements (issued in two different publications of the newspaper) of the fact that the application for probate has been made;
  • a declaration on oath of the assets of the estate and their values;
  • if the application is being made three years or more after the death of the deceased, an affidavit explaining the reasons for the delay in making the application;
  • if the deceased died domiciled outside BVI, an affidavit of foreign law;
  • a draft Order for probate.

A time frame of 3-6 months should be taken into account for the issuing of a BVI grant

Formal Validity

The BVI is not a signatory to the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions so that whilst the formal validity of a will insofar as it deals with BVI immovables will be determined by BVI law, the formal validity of a will of BVI movables will be determined by the law of the deceased’s last domicile. The validity of a will of a Hong Kong domiciliary dealing with BVI shares/loan accounts etc will therefore be determined by Hong Kong law and an affidavit of Hong Kong law will be required even if probate has already been granted in Hong Kong.

Fees

The BVI Bar Association has recommended that lawyer’s fees for probate applications should amount to 1% of the value of the deceased’s estate. As the resulting fee could be disproportionally high depending on the value of the estate, we charge on hourly rates. For routine applications the fee is normally about US$6,000.

Filing fees to be paid to the Registrar under the Probate Rules are nominal.

Authors

Category: Article