Lineage, Land, and the Law: Succession of rural land in the New Territories in Hong Kong
In Hong Kong, it is not uncommon for rural land in the New Territories (“NT”) to be left unadministered for many years since the demise of the owner, as its value was not high in the past.
However, given the increasing pace of the Government’s resumption of NT land, it is imminent for beneficiaries of NT land to show good title and apply for probate or letters of administration in order to be entitled to compensation from the Government. Issues related to the succession of NT land, the owners of which have passed away some decades ago, have therefore become relevant.
In this article, Ross Yuen and Eunice Lui will address issues of succession of NT land. Issues of the administration of NT land will be addressed in a separate article.
The Law of Succession
Insofar as NT land is concerned, succession could be: (1) testate; (2) intestate; or (3) in accordance with Chinese law and custom: see Lai Hay On v Commissioner of Rating and Valuation [2010] 3 HKLRD 286 at [37] per Tang VP (as he then was).
While testamentary power over NT land has long been recognized, intestate succession had been subject to various statutory amendments throughout the past century. It is thus germane to first address the issue of intestate succession, which depends on the time of the landowner’s demise.
Succession according to Chinese Law and Custom
Intestate succession was, until the enactment of the Intestates’ Estates Ordinance (Cap.73) (IEO) which came into force on 7 October 1971, governed by Chinese customary law.
The statutory basis of adopting Chinese law and custom in the NT can be found in the New Territories Regulation Ordinance, 1910 (“NT 1910 Ordinance”), the then prevailing law relating to the administration and regulation of NT land. Section 25 of the NT 1910 Ordinance provided that “in any proceedings in the Supreme Court in relation to land in the New Territories the Court shall have power to recognise and enforce any Chinese custom or customary right affecting such land”.
It is now trite that Chinese law and custom governing the succession of NT land refers to Tsing law and custom in force in this part of China in Hong Kong in 1843 as varied by local custom (see Ho Tsz Tsun v Ho Au Shi (1915) 10 HKLR 69; Re Wong Choi Ho, deceased [1969] HKLR 391). It is embodied in the Ta Tsing Lu Li (大清律例).
To have a good starting point to understand the Ta Tsing Lu Li, one may refer to Chinese Family and Commercial Law (1970 Reissue) by G. Jamieson; Chinese Law and Custom in Hong Kong, A Report of a Committee Appointed by the Governor in October 1948 (usually known as Strictland Report); and The Chinese Law of Succession by Vermier Chiu.
According to the law of succession under Tsing law and custom, broadly, all sons and their male descendants would divide the whole of the estate equally between themselves, grandsons getting a father’s share: Jamieson (supra) pp.25-26; Lai Hay On (supra) at [36].
Intestate Succession
Then, the IEO was enacted in 1971. It means that for deaths after 7 October 1971, devolution in Hong Kong would be governed by the IEO, and one important change is that daughters would share equally with sons (see section 12 of the IEO; Halsbury’s Laws of Hong Kong, Vol. 27, 2008 Reissue, at [425.311]).
In the meantime, however, the IEO did not affect the applicability of Chinese law and custom to NT land for deaths which occurred thereafter by virtue of section 11(2) of the IEO, which provided that NT land “shall continue to devolve upon intestacy in like manner as it would have devolved if this Ordinance has not been passed”.
On 24 June 1994, such exemption was finally repealed by the New Territories Land (Exemption) Ordinance (Cap. 452) (“Exemption Ordinance”). It follows that for deaths which occurred thereafter, on intestacy, NT land would devolve in accordance with the IEO only.
Testate Succession
While there had been doubt as to whether the testamentary power extended to NT land, such power has been taken for granted for a long time: Lai Hay On (supra) at [43]. In Re Tse Lai Chiu, Deceased [1969] HKLR 159, it was held that section 3 of the then Wills Ordinance, Cap 30, implicitly recognises the testamentary power of Chinese testators, whilst being concerned to relieve them from the necessity of complying with the formalities of the English law relating to testamentary disposition, and there is no tradition and practice preventing Chinese persons from making wills in accordance with the English law.
In fact, in Lau Wong Fat v Attorney-General [1997] HKLRD 533, Godfrey JA held that the Exemption Ordinance does not prevent an indigenous inhabitant of the NT from making a will in favour of his male descendants to the exclusion of his female descendants and so preserving the custom himself.
Conclusion
It should be noted that Chinese custom on the law of succession is one thing while the machinery governing the administration of estate is another. The administration of NT land will be explained in another article.
Authors: Ross Yuen, Eunice Lui.
Ross Yuen
Ross has his practice mainly in property law (including Chancery, Trust and Probate) and commercial law. He regularly acts in compulsory sale and adverse possession cases. Advising on other land related matters such as conveyancing, building management and tenancy is also his regular practice.
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Eunice Lui
Eunice was called to the Bar in 2024 and joined Chambers in the same year. Eunice is developing a broad civil practice, with particular emphasis on land-related matters. Eunice has recently appeared in two compulsory sale cases with Ross, in which one case concerns a building in Wong Nai Chung Road, and the other case being Tai Chung Property Ltd v Chen Lan Sum Irene (LDCS 4000/2023) [2025] HKLdT 40, which involves a building erected under the old Civil Servants’ Cooperative Building Society Scheme. Eunice accepts instructions in all areas of Chambers’ work.
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This article was first published on 25 September 2025.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.