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OLN IP’s Benjamin Choi Ranked in 2021 WTR 1000

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Congratulations to Benjamin Choi, Managing Director of OLN IP, who is a ‘Ranked Individual’ in the Silver Tier for Prosecution & Strategy in 2021 World Trademark Review 1000 – the world’s leading trade mark professionals.

Benjamin Choi recently joined our legal and business solutions platform as Managing Director of OLN IP Services (OLN IP), a new venture that expands OLN Oldham Li & Nie’s intellectual property services. OLN IP is a consultancy offering tailored, commercially-driven advice to intellectual property owners, across the different IP asset classes, including IP portfolio management. 

Congratulations again to Benjamin for his ranking.

About OLN IP

OLN IP consultancy is dedicated to providing bespoke, commercially-driven advice to owners of Intellectual Property from assisting with technology-based IP, trade marks, copyright, patents and designs to managing IP portfolios on an ongoing basis. OLN IP is led by Benjamin Choi as Managing Director, and Vera Sung, both veterans in the IP space, and backed by a seasoned team of intellectual property experts from our Hong Kong and Shanghai offices, who together bring formidable experience and depth of knowledge to provide clients with nuanced and precise IP advice tailored to their business needs. 

OLN IP is a member of the legal, corporate and financial services platform of OLN Oldham, Li & Nie Solicitors, a leading Hong Kong law firm, with offices in Hong Kong and mainland China, whose commitment to professional excellence has driven its growth and development since 1987.

March 2021

Hong Kong Trade Mark Practice Goes International

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Hong Kong is expecting the launch of the International Registration (IR) of Trade Marks under the WIPO Madrid System by tentatively end of 2022 or early 2023. This will be in addition to the long established and territorial based trade mark registration system, whereby trade mark owners domiciled or incorporated in Hong Kong can designate their marks registered in Hong Kong for extended registration in selected multiple countries or jurisdictions worldwide within the Madrid network. This eliminates the necessity for individual national filings to obtain registration in each of the countries intended for protection. Overseas trade mark owners can also extend their home registrations through the IR system for designation in Hong Kong to save them the need for separate registration in Hong Kong.      

On 19 June 2020, the Trade Marks (Amendment) Ordinance 2020 came into force to pave the way for the administration and examination of IR trade marks under the Madrid System. The Hong Kong Intellectual Property Department (IPD) has revamped the trademark law and practice, and taken the opportunity to simplify or modify certain processes, work flows and formality requirements enabling trade mark owners and their trade mark service providers to handle and administer their portfolios with better ease and convenience.  

The chart below illustrates the changes that have already been implemented or that we may expect going forward. 

PastPresent or Near FutureBenefits
Only the Applicant’s name and address need to be provided in the Application form.The Applicant’s country and state (for the US) of incorporation need to be specified in the Application form, apart from its name and address.This helps to better identify the origin and incorporation status of the Applicant or Owner of the trade mark based on the official records. 
Original letter of consent signed by the owner of an earlier mark cited was strictly required.Now a scanned or photocopy of a letter of consent is considered satisfactory to resolve a relative ground of refusal based on an earlier mark.This saves the Applicant the time to wait for the postage of the original letter of consent from abroad and the effort of the grantor posting the original letter especially during the Covid restriction. 
Certified priority document (extract of filing issued in the first filing country) required in support of a Paris Convention priority claim. Certified priority document is dispensed with unless specifically requested by the Registry.This saves the Applicant the time and cost to arrange for issuance of the certified priority document.
The Trade Marks Registrar will maintain the Applicant’s own earlier registered marks bearing a different and former address as conflicting marks due to the address difference unless the Applicant properly enters change of address for all the marks concerned in the Register.Now an applicant is not required to record address change for its own earlier registered marks (bearing a different address) as and when cited as conflicting prior marks due to the address discrepancy. 
The applicant or its agent can simply inform the TMR in writing that the applicant is the same entity as the owner of the cited trademarks (subject to documentary proof).		This saves the Applicant the costs of recording address change for its older trademark records. 
All opposition forms and documents must be printed, signed and filed at the Trade Marks Registry office. Now a Notice of Opposition and Extension of Time for Opposition can be filed through the IPD online portal.This saves the need for the Opponent or its agent to attend the Registry’s office to file opposition documents within the office hours. 
All hearings before the Trade Marks Registry conducted in person unless a party opted for paper submission. Hearings may be conducted on paper, orally or via video conferencing or other electronic means.This copes with the Covid social distancing requirements in the past year.
An Applicant seeking to revoke a third party’s registered mark on the ground of non-use has to produce prima facie evidence of non-use usually by engaging a private investigator to conduct market intelligence. In the near future, an Applicant seeking to revoke a third party’s registered mark will not be obliged to produce prima facie evidence of non-use when filing the non-use revocation.  It is solely the owner’s responsibility to prove actual use of the mark to defend a non-use claim. This saves the costs and time of the Applicant to conduct the pre-revocation filing investigation which can be quite costly. 
   

The IPD is still working on the Trade Marks (Amendment) Rules 2021. We will monitor the changes in the trade mark regime and keep you up-to-date on our practice. 

26 February 2021

There Is A Caveat to The Will – What are the Next Steps?

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What can be done if there are disputes over the validity of a will or the administrator of the estate? Provided that the ‘Grant of representation’ has not yet been issued by the Hong Kong Probate Registry, which would indicate that it has already validated the will, a concerned party may enter a ‘Caveat’. This will ensure that the “Caveator’, that is the person who lodges the caveat, will be informed if any application is made for the issue of a grant of representation.

While the existence of a caveat may indicate there are genuine concerns in a probate or administration process and therefore a sign of potential disputes, the effect of entering a caveat is not necessarily contentious in itself. Nevertheless, caveat proceedings do start when a caveat is lodged with the Probate Registry against an estate of a Deceased. The Probate Registry only process non-contentious applications for grant. If the application has become “contentious”, the contention must be resolved first. In theory, the entering of a caveat can be contentious, and the caveat must be dealt with first before the application can be processed further.

A caveat is a notice preventing a grant of representation being issued by the Registry without notice to the caveator. Some of the common reasons to enter a caveat are:-

•    To allow more time for the caveator to make enquiries, obtain further information or evidence to:

o    Oppose proof of a will
o    Challenge the validity of a will
o    Oppose the issue of the grant of representation to the person entitled
o    Ascertain entitlement where there is no will (the deceased died intestate)

•    To act as a preliminary step to a probate action, or to citation (for more information, see our article on citations)
•    To be a first step in an application by people who have equal entitlement to the grant of representation

Once entered, a caveat remains in force for 6 months from the date of entry and then automatically ceases to have effect, unless withdrawn or removed prior to such date. There is no limitation to the number of further caveats and extensions that can be made. 

How to Handle a Caveat?

Issuing of any grant of representation shall not be allowed if the Probate Registry has knowledge of an effective caveat. Where an effective caveat is in place, the applicant for grant of the relevant estate would be asked by the Registrar to deal with the caveat. This can sometimes come as a surprise to grant applicants as they may not have been previously aware of the caveat.

Depending on the circumstances, there are various ways of handling an estate with a caveat. In any event, given the many potential contentious issues that may arise and the sensitive nature of probate or administration in general, legal advice should be sought and the matter should always be handled with care.

A caveat can only be removed:-

•    By withdrawal of the caveat by the caveator giving notice at the Probate Registry, as long as an appearance to a warning has not been entered
•    By the non-appearance of a caveator to the warning to caveator
•    By an order of the High Court that the caveat does cease to have effect and a grant of representation be issued
•    By the expiration of 6 months form the date of entry or effective extension

It may be worrying to discover that a caveat has been lodge, but it is not unusual to find occasions where the caveat process is misused and caveats are simply lodged to stall for time, or even where parties have no grounds to contest a will or the administration of an estate. Where there is no valid reason to lodge a caveat, there could be costs consequences for the caveator. 

Whether you discovered a caveat or you are thinking of entering one, it should be reminded that caveat proceedings are by nature contentious and can well be the start of a litigation. Any step taken after the commencement of a caveat proceedings could cause legal consequences, including costs. It is therefore recommended that you seek independent legal advice before taking any step in dealing with a caveat.

If you have any questions regarding the above or would like to obtain further information on our probate and estate planning services, please feel free to contact our Probate and Estate Planning team.  

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

February 2021

Family Trusts: Spending Legal Fees Wisely

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How early advice can significantly mitigate future costs

It is deep rooted in Chinese culture that all family problems should be resolved within ‘the four walls’, perfectly illustrated by the old adage ‘Do not wash your dirty linen in public’. Often families and private wealth managers find it daunting to contact lawyers, and when a problem eventually (as a last resort) reaches the legal advisor it is most likely to have evolved into a disastrous problem that could cost a significant part, if not all, of the family’s wealth to fix it. This bulletin seeks to provide practical pointers on the legal ringfences that could be put into place at the early stages to avoid such future nightmares.

Structure formation

A diverse range of services and products are being marketed to and consumed by high-net-worth individuals and families in Hong Kong. Hong Kong remains the hub for a large number of super-rich individuals and families with private wealth, predominantly comprising of easily investable assets, most of which is held in private trusts, the primary vehicle used for wealth and estate planning. This may sound simple but as the pool of high-net-worth individuals expands, wealth and estate planners in Hong Kong are seeing increasing demand from second and third tier wealthy individuals for sophisticated planning, particularly for intergenerational transmission of wealth, succession for family-owned businesses and long-term philanthropic goals.

Clients’ preference (or in many cases, preference of their service provider), and legacy reasons are often the governing factors for selecting structures and jurisdictions. However, poorly designed structures and inappropriate choice of jurisdictions could lead to drastic compliance issues, immobility of assets, unnecessary administrative costs, or impediments to business operations. It is therefore important to work closely with legal advisors to frame appropriate structures at the most suitable jurisdiction, based on the following key factors:

1.    Specific needs of the beneficiaries

The relevant questions include:

a)    Whether on-going support is required and for how long (e.g., for minor and old age beneficiaries)? In that case, what is the best way to ensure part of the assets remains mobile?

b)    Is it necessary to have segregated wealth portfolios, and if so, would an offshore fund be suitable?

c)    Is there any specific jurisdictional matter (e.g., a US citizen issue) that warrants more protection for certain beneficiaries?

d)    Do they have any role in the family business? Are conflicts from wearing multiple hats foreseeable if a private trust company will be used? 

2.    Tax efficiency

Entities and activities in popular offshore jurisdictions (such as BVI and Cayman) do not attract tax, which is ideal for those who require their assets to be easily transferrable, coupled with a high level of confidentiality concerning ownership. In Hong Kong, while there is no capital gain tax for local entitles, profits arising in or derived from trading activities, a profession, or business undertakings carried out in the city are subject to profits tax. Therefore, remuneration or profits, even via offshore vehicles, received by a related Hong Kong entity in the structure might still be taxable.

Another aspect of tax consideration is the potential personal liability of individual beneficiaries, especially in receiving distributions.

3.    Compliance issues

With the joint effort to combat money laundering and financial crimes globally, it is impossible to avoid compliance requests – from provisions of basic personal particulars to details regarding source of funds and income. Terms such as “beneficial ownership”, “economic substance” and “FATCA” make headlines frequently in all popular wealth parking jurisdictions. Selection of a jurisdiction based on the incentive of non-compliance of a reporting duty is unrealistic, as one would simply end up at a jurisdiction with little or no financial and professional infrastructure, and even then, such a jurisdiction would eventually develop and become regulated.

The correct approach towards compliance requests is to ask a legal advisor to map out the actions and information that would be required to fully comply with all reporting duties each year. Logically, the cost of proper planning and preparation would be significantly lower than the cost for handling the consequences of failing to comply with certain duties.   

Key Documents

Trusts have been the default setting for asset protection and succession planning in Hong Kong for many years. Despite understanding the benefits, families are generally not willing to give up their control over the assets and will often seek to reserve certain powers. Recent court cases (e.g. JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch)) however proved that trusts that are controlled by settlors are vulnerable to attacks, with courts having developed ways to enable third parties (usually creditors or divorcing spouses) to enforce orders against trust assets. 

In contrast, numerous jurisdictions have introduced specific provisions intended to enable the reservation of a wide range of powers by the trustmaker (settlor). A Hong Kong trust will not be invalid solely because the settlor has reserved for themselves the powers of investment or asset management. The statutory protection in Hong Kong however does not include the reservation of powers of revocation or powers to appoint and remove trustees or beneficiaries, which are available in offshore regimes including in Singapore.
 
It is therefore important to understand that all documents must always be drafted in a fact-specific way. However, as a general principle, the key is to reserve only the powers that are necessary for the settlor in question. For example, a settlor who has settled a business into the trusts may wish to retain the power to veto a proposed sale or other disposition of the business. Note, however, if this is combined with other extensive powers such as the power to replace trustees, the right to determine who is to be a member of the beneficial class and, for example, a right of veto over any disposition of trust assets, then it is likely for a Court to say that the settlor has the means to control the disposition of the trust assets and, in practice, to ensure that they have in place trustees who will bend to their will. Another general rule is that retaining the right of veto over actions is likely to be safer than positive powers. By merely being able to prevent actions taking place, a settlor is far less likely to be held as having retained beneficial ownership as they cannot by exercising those powers of veto alone bring about any disposition of the property.

Mitigating litigation risks

Disputes are inevitable and would often put trustees in a conflicted position. Typical contentious scenarios include the spouse of a beneficiary demanding disclosure of details of a trust during a divorce, beneficiaries unable to reach consensus on distribution or disagreement between the trustee and the beneficiaries regarding the dealing of certain assets. 

The idea of taking a matter to court may sound intimidating, but most courts have statutory supervisory jurisdiction to give orders to deal with trust assets. Section 56 of the Hong Kong Trustee Ordinance allows the trustee to make an application to the court for the necessary power to manage or administer property vested in the trustee. This is a relatively narrow jurisdiction when compared to the much wider discretion that the offshore courts may exercise. The author acted for a trustee based in Hong Kong of a Cayman trust to seek an order from the Cayman court pursuant to s.48 of the Trusts Law to sanction a distribution proposal that the beneficiaries could not agree upon. It is therefore a good practice to seek directions from the court which has jurisdiction over the trust during the early stage of a dispute to mitigate the risk of full-blown litigation.  

Conclusion

With the variety and complexity of issues revolving around private wealth management, as highlighted by the questions and scenarios set out above, wealth managers should work closely with legal advisors at early stages of planning, drafting, and also at the first sign of any potential dispute. 

February 2021

Shareholders’ Agreement 101 – Do I Need One?

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Why do you need a shareholders’ agreement?

When friends or family members come together to form a company, more often than not, they will not consider the need for a shareholders’ agreement as they tend to rely on mutual trust, respect and confidence. Of course, this generally works perfectly when the business is doing well and profitable, and while the shareholders are receiving their expected return on investment. But what if things turn sour? Whether the business is not doing well or trust and confidence morph into distrust and suspicion, what can shareholders do? In circumstances like these, the shareholders’ agreement comes into play. A well drafted shareholders’ agreement should be able to offer a solution to the parties in most cases. As with any other agreement such as those for sale and purchase, and loan transactions, the importance of a shareholders’ agreement is to safeguard interests of the shareholders and if disputes arise between the parties, there is an agreement they can fall back on setting out clearly what the parties can or cannot do, and shall or shall not do.

What is a shareholders’ agreement?

Shareholders’ agreement is an essential agreement between the shareholders of a company and the company itself. It can be between the company and all or just some of the shareholders; for instance, a company with different classes of shares and holders of different classes of shares might prefer to separately enter into a shareholders’ agreement with the company instead of with holders of all classes of shares. A shareholders’ agreement is used to govern the company’s management and operation and sets out all the rights and obligations between the shareholders and the company. A shareholders’ agreement is particularly important for third party investors investing in an existing company or business or when unrelated parties come together to form a new company.

What terms are to be included in a shareholders’ agreement differ according to the parties’ needs and bargaining power and/or the particular type of business. Still, a typical shareholders’ agreement normally consists of the following terms:

  • the type of business the company will run
  • the management of the company, i.e., the composition of the board of directors and any committees
  • the right of shareholders to nominate directors
  • frequency, procedures for convening and holding board meetings and shareholders’ meetings
  • matters which require simple majority, super majority or unanimous votes
  • specific obligations of shareholders
  • dividend policy
  • issue of new shares and admission of new shareholders
  • transfer of shares
  • anti-dilution mechanism
  • deadlock
  • minority shareholder protection
  • further financing needs of the company
  • non-competition undertaking by shareholders
  • term and termination of the shareholders’ agreement
  • dispute resolutions

If investments are to be made in stages, the shareholders’ agreement would normally include the timetable for capital contribution, share subscription by the shareholders, shareholding structure and other typical clauses in a share subscription agreement.

Minority protection

Where a company has only two shareholders, one of them holds 51% (majority shareholder) and the other one holds 49% (minority shareholder) of the issued shares, the minority shareholder typically has no control over how the company will be managed and operated as the minority shareholder will be out-voted by the majority shareholder at general meetings, assuming all decisions only require a simple majority vote, i.e., >50%, of the shareholders to pass. However, according to the Companies Ordinance (Cap.622, Laws of Hong Kong), certain decisions of a company are required to be passed by special resolutions, i.e., passed by at least 75% of the voting shares. These decisions include the alteration of the articles of association, change of the company’s name, reduction in the share capital of the company, etc., meaning that the majority shareholder in the above case cannot simply pass a resolution by itself to alter the articles of association of the company. In addition to those decisions specified in the Companies Ordinance that must be approved by special resolutions, to protect their interests, the minority shareholder will negotiate with the majority shareholder for other matters to be passed by special resolutions which are not otherwise required so by law. Common examples include capital expenditure above a certain amount, disposal of material assets, change in the company’s principal business, further financing through equity or borrowings or change in dividend policy, etc. 

Often when an investor invests in a business as a minority shareholder, the investor is in fact investing in the experience, expertise and knowledge in the industry and business operation of the company’s management team who are normally the majority or founding shareholders of the company. In case the majority shareholders decide to divest and sell their shares, the investor could also consider selling their shares as there may be uncertainty as to the management, operation and profitability of the business once the company changes hands. Hence, the investor will almost inevitably request a “tag-along right” to be incorporated in the shareholders’ agreement, giving the investor the right but not the obligation to co-sell its shares on the same terms to the prospective buyer of the majority stake. 

A minority investor would normally request a non-competition undertaking from the company and the majority shareholders to oblige them not to engage in any business operations or investment in other businesses that are similar to or in direct competition with that of the company. This is to avoid any negative impact on the profitability of the company. 

Majority protection

Not only do minority shareholders need a shareholders’ agreement to protect their interests, majority shareholders also have certain interests that require safeguarding. A potential nightmare for a majority shareholder could be when they have found a prospective buyer willing to buy-out 100% of the company but the minority shareholder refuses to sell their shares. What happens next is the entire deal falls through. To avoid this, the shareholders’ agreement should include a clause whereby if the majority shareholder decides to sell all of their shares in the company to a third-party buyer, they will have the right (but not the obligation) to request the minority shareholder(s) to also sell their shares in the company on the same terms. Once requested by the majority shareholder, the minority shareholder(s) will be obligated to sell their shares. Contrary to the tag-along right afforded to minority shareholders, such a right is known as the “drag-along right” of the majority shareholder.

In addition, a majority shareholder would not want any information relating to the business operations, prospects, customers, suppliers, financial information or trade secrets being disclosed to any third party, especially competitors, or shares in the company sold to competitors. Therefore, specific clauses that deal with the use and disclosure of confidential information and on the restrictions on the transfer of shares will need to be incorporated in the shareholders’ agreement to address the majority shareholder’s concerns.

Equal shareholdings

Suppose every shareholder in a company holds the same percentage of shares, for example, there are five shareholders each holding 20%. In this case, where there is no majority shareholder, would any of the majority or minority protection provisions mentioned above still apply? If two or more shareholders join hands and outnumber the rest in terms of shareholdings, arguably there will be a (collective) majority camp against the minority shareholders. What if none of the shareholders can agree on an issue? Circumstances like this is commonly known as a “deadlock” situation, where things come to a standstill and cannot move forward. If a deadlock situation continues, it could seriously affect the continued operation of the business. A well-drafted shareholders’ agreement should have specific provisions incorporated to cater for deadlocks and provide mechanisms to resolve issues. 

Shareholders’ agreement vs Articles of Association

Whether the terms of a shareholders’ agreement will be reflected in the company’s articles of association very much depends on the parties’ wishes. In Hong Kong, the articles of association of a company are public documents and can be searched and obtained for a fee by anyone. If the articles of association of a company is amended to incorporate and reflect terms of the shareholders’ agreement, all such terms incorporated in the articles of association will also become public information. Hence, whether the terms of the shareholders’ agreement will be incorporated in the articles of association and how much of it should be incorporated becomes another area of negotiation between the shareholders and the company. Suppose certain terms of the shareholders’ agreement differ from the articles of association, such as the quorum for a board meeting, and the parties decide not to amend the articles of association to reflect the same, should the shareholders comply with the articles of association or the shareholders’ agreement? To avoid this embarrassing situation, it is always good practice to include a clause in the shareholders’ agreement to the effect that if there is any contradiction or discrepancy between the shareholders’ agreement and the articles of association, the terms of the shareholders’ agreement will prevail.

If you wish to find out more about whether you need a shareholders’ agreement for your company, how to protect your interests, and what terms should be included in your shareholders’ agreement, please feel free to speak to members of our corporate and commercial team.

January 2021

Simon Wong
+852 2186 4848 / +852 9460 9816
simon.wong@oln-law.com
Partner, Corporate & Commercial
Oldham, Li & Nie

遺言を残さなかった場合に遺族に生じる香港法上の問題

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有効な遺言を残さずにある方が亡くなった場合、故人の遺産の管理と分配は「無遺言死亡法」により規律されることになります。香港では、この法分野に属する重要な成文法として、無遺言遺産条例（第73章）（以下、「IEO」といいます。）および非争訟的プロベート規則（第10A章）（以下、「規則」といいます。）の二つがあります。

被相続人の遺産を処理するためには、遺産管理状の付与(Grant of Letters of Administration)を、遺産承弁署（プロベート裁判所）から受けなければなりません。被相続人の遺産について遺産管理状の付与を申請することができる者は、次の優先順位で、規則第21条に規定されています。

1.    生存する配偶者
2.    子
3.    父母
4.    兄弟姉妹
5.    祖父母
6.    叔父叔母

遺産管理状の付与を受けることができた者は、遺産管理人となり、IEOに従って遺産を処理する権限を与えられます。

遺産管理状の付与を受け、被相続人の葬儀を行った後、遺産管理人は、まず、被相続人の全ての遺産を整理し、その負債および費用の清算をしなければなりません。その後、遺産管理人は、IEO第４条に基づく相続権の例を示した下記の表のように、IEO第４条に従って、遺産を受益者に分配しなければなりません。

遺言がない場合の相続順位

 生存する親族その他の親族の状況相続権の配分
1.配偶者被相続人に直系卑属、父母、全血兄弟姉妹、または全血兄弟姉妹の直系卑属なし 全て生存する配偶者に帰属します。
2.配偶者および被相続人の直系卑属*その他無関係な親族生存する配偶者が、個人的な動産、500,000香港ドルおよびその余の財産の２分の１を取得します。残りの２分の１は、生存する直系卑属*のために法定信託財産となります。
3.配偶者および次に掲げる１人もしくはそれ以上の親族：
父母、全血兄弟姉妹または全血兄弟姉妹の直系卑属* 		 生存する配偶者が、個人的な動産、1,000,000香港ドルおよびその余の財産の２分の１を取得します。残りの２分の１は、生存する父母または、生存する兄弟姉妹のために法定信託財産となります。
4.被相続人の直系卑属*配偶者なし全て生存する直系卑属*の法定信託財産となります。 
5.父母配偶者なし、被相続人の直系卑属*なし全て父母に帰属します。
6.兄弟姉妹配偶者なし、直系卑属*なし、父母なし全て兄弟姉妹の法定信託財産となります。
7.異父母の兄弟姉妹配偶者なし、直系卑属*なし、父母なし、兄弟姉妹なし全て異父母の兄弟姉妹の法定信託財産となります。
8.祖父母上記いずれもなし全て祖父母に帰属します。
9.叔父叔母上記いずれもなし全て叔父叔母の法定信託財産となります。
10.異父母の叔父叔母上記いずれもなし全て異父母の叔父叔母の法定信託財産となります。
11.上記いずれの親族もいない場合 全て香港政府に所有者のない財産として帰属します。
    
*相続法において直系卑属とは、子や孫のような、ある方の子孫を意味します。
**法定信託についての詳細は、IEOをご参照ください。

に基づいて規定された相続権にかかわらず、遺産の受益者は、全ての受益者の間で遺産分割協議書を締結することにより、被相続人の遺産の再分配を合意できる場合があります。ただし、このような遺産分割協議書による再分配は、印紙税がかかる可能性があることにご注意ください。 

このように、遺言を残さずに死亡した者の遺産の分配については、法律により特定の順位が規定され、受益者がその相続権を変更する一定の余地が残されています。他方で、有効な遺言を残しておけば、遺言者の財産は、計画通りに相続されることが保証されることになります。 

ご不明点がある場合や、当事務所のプロベート・エステートプランニングについてご興味・ご関心がある場合は、下記のリンクに記載のチームメンバーにご連絡ください。: https://oln-law.com/ja/practice-areas/probate-estate-planning/.  

本記事は情報提供のみを目的としています。本記事の内容は、法律上の助言を構成するものではなく、本記事をもって個々の事例における詳細な助言に代替されるとみなされることがないことにご留意ください。

最終更新：2021年1月