The most common probate applications we deal with at Harneys in Shanghai involve shares in BVI companies. Pursuant to the BVI Business Companies Act, shares in BVI companies are deemed to be situated in the BVI. Accordingly, it is necessary for the appropriate grant to be obtained from the BVI Probate Court before the deceased’s interest in a BVI company can be validly transferred to the intended legatee or heir (often resident in the PRC).

When it comes to the application itself, the applicant needs to submit various documents. The two key documents are:

• As the deceased was typically domiciled in the PRC, an affirmation by a PRC lawyer is required confirming the validity of the will and explaining why the personal representative is entitled under the laws of the PRC to administer the estate. Not all PRC lawyers are willing to comment on the validity of the will, because as a matter of practice this may involve assuming liability should there be any issue subsequently arising as to the validity of the will. Competing heirs may make a claim against the PRC lawyer for any perceived loss of his or her share in the deceased estate.

• The issue of will marking will not arise if no will is available; the intestacy rules governing the shares in BVI companies as movable assets are those of the deceased’s jurisdiction of domicile, hence normally the PRC.
• However, if there is a will that is to form the basis of an application for a grant of probate or letters of administration under the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017, then the will must be ‘marked’ by the applicant with the standard oath and signature. In the PRC, the marking is to be done before a notary public. Afterwards, the notarised documents will be further apostilled under the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents  before it may be recognised in the BVI. An issue we frequently encounter is that because the Convention only came into effect in the PRC on 7 November 2023, local Foreign Affairs Offices have relatively little experience dealing with cases that require will marking. With the added complication that under PRC law a will may be invalid  if it is marked, local Foreign Affairs Offices are typically cautious to apostille such documents which can result in the initial rejection of an application. We have encountered delays in multiple provinces including Fujian, but have had considerably more success in our cases in Beijing and Shanghai. We expect that efficiencies will improve as local Foreign Affairs Offices become more familiar with the Convention and their obligations arising therefrom.

The long-established practice of PRC nationals using BVI companies as holding vehicles means there is an inevitable demand for BVI probate grants and letters of administration. Harneys has considerable experience in this field, and works closely with local counsel to ensure the process of notarisation and apostilling of the will ‘marking’ goes smoothly – bridging the differences between the two legal systems. If you would like to learn more about the process, or require assistance with BVI probate, please contact the author or your usual Harneys contact.