Table Of ContentTHE LAW REFORM COMMISSION OF HONG KONG
REPORT ON
LAW OF WILLS, INTESTATE SUCCESSION
AND PROVISION FOR DECEASED PERSONS'
FAMILIES AND DEPENDANTS
(TOPIC 15)
We, the members of the Law Reform Commission of Hong Kong, present our
report on Laws of Wills, Intestate Succession and Provision for Deceased
Persons' Families and Dependants.
The Honourable Mr J F Mathews CMG JP
(Attorney General)
The Honourable Sir Ti Liang YANG
(Chief Justice)
Mr James O'Grady OBE QC JP
(Law Draftsman)
Dr Frank S B CHAO
Mr Graham Cheng OBE JP
The Honourable Mr Justice Fuad (Member 1983 – 89)
Dr the Honourable Henrietta IP OBE (Member 1983 – 89)
Mr Simon S O IP JP
The Honourable Mr Martin LEE QC JP
Miss Christine LOH
The Honourable Mr Justice Mortimer
Mr Peter F Rhodes
Mr Leslie L SUNG
The Honourable Miss Maria TAM CBE JP
The Honourable Mrs Rosanna TAM JP
Professor Edward Tyler
Dr Byron S J Weng
THE LAW REFORM COMMISSION
OF HONG KONG
REPORT ON
LAW OF WILLS, INTESTATE
SUCCESSION, AND PROVISION FOR DECEASED
PERSONS' FAMILIES AND DEPENDANTS
_______________________________________
CONTENTS
Chapter Page
Introduction 1
Terms of Reference 1
Summary of work and acknowledgements 1
1. Background 3
International human rights 4
Illegitimate children: Public Opinion Survey 4
Layout of report 5
Part I - The Law of Wills 6
2. Form and Authentication 6
The present law 6
The effect of S. 17 of the AJA Act 8
Section 5(2): A general dispensing power 9
Overseas legislation and views on dispensing with formalities 10
Change favoured 12
The signature 14
3. Various Wills Ordinance Amendments 15
Introduction 15
The sections discussed 15
i
Chapter Page
4. Rectification, Interpretation and Evidence 27
Introduction 27
Change in England and Wales 27
Extrinsic evidence 28
Ambiguous gifts to a spouse 29
5. Registration of Wills 30
The UK provisions 30
Hong Kong provisions 30
Recommendation 31
6. International Wills 32
The UK provisions 32
Recommendation 32
Part II - The Law of Intestate Succession 33
7. Intestate Succession: Introduction 33
Intestate succession terms of reference 33
The scope of intestacy law 33
The old law 34
The Intestates' Estates Ordinance 1971 34
The hypothetical testator 34
8. The Rights of the Surviving Spouse 36
The existing rules governing the division of residuary estate 36
Spouse entitled to purchase chattels but not matrimonial home 37
Present position unsatisfactory 38
Recommendation: the statutory legacies 39
Recommendation: personal chattels 40
Recommendation: the matrimonial home 42
Where surviving spouse acquires an interest under foreign law 43
9. "Child or issue" 45
The present position 45
Present position unfair 46
ii
Chapter Page
Recommended changes 48
The illegitimate intestate 48
Criticism of the present position 49
Recommended changes 50
10. "Brother or sister" 51
Present position 51
Recommendations 51
11. Concubinage 53
Present position 53
Criticism of the present position 54
Recommendations 54
Concubines and children 55
Concubines and siblings 56
12. Miscellaneous matters 57
New Territories land 57
Chinese customary law 57
Statutory trusts 59
Protection of trustees and personal representatives 59
The Crown 60
Part III - Provision for Deceased Persons' Families and 61
Dependants
13. Deceased's Family Maintenance Ordinance 61
History 61
Need for reform in Hong Kong 61
14. Those entitled to apply 63
Definition of "dependant" 63
Surviving spouse, former spouse, concubine and male partner 64
Parent of the deceased 65
Child of the deceased 66
Other "dependant" 67
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Chapter Page
15. Jurisdiction and court's powers 69
Jurisdiction 69
Powers of the court to make orders 69
Matters to be considered by the court 71
Section 4(1) proviso 73
Time limit for applications 73
16. Property available for family provision 74
"Net estate" 74
Net estate and New Territories land 74
Net estate and other property 75
17. Anti-avoidance 77
Present position 77
Disposition 77
Contracts to leave property by will 78
Trustees 78
Recommendation 78
Part IV - Consolidation and revision 79
18. Consolidation 79
Terms of Reference 79
Accessibility of law 79
Recommendations 79
19. Revision 80
English practice and procedure 80
Recommendation 80
Part V - Forfeiture 81
20. Forfeiture 81
The forfeiture rule 81
The UK Forfeiture Act 1982 81
Hong Kong 81
iv
Chapter Page
Desired recommendation 81
Part VI - Summary of recommendations 82
21. Summary of recommendations 82
Recommended amendments to the Wills Ordinance, Cap 30 82
Recommended amendments to the Intestates' Estates Ordinance 84
Cap 73
Recommended amendments concerning Deceased Persons' 87
Families and Dependants
Consolidation and Revision 90
Forfeiture 91
Annex 1 92
Public Opinion Survey Report concerning illegitimate children 92
Annex 2 112
Persons or Organisations consulted 112
Annex 3 113
Administration of Justice Act 1982: Sections 27 and 28, and Second 113
Schedule
Annex 4 118
Table showing distribution under Intestates' Estates Ordinance 118
1971
Annex 5 127
Inheritance (Provision for Family & Dependants) Act 1975: Sections 127
3 and 8 –13
Annex 6 136
Wills (Amendment) Bill 136
v
Chapter Page
Annex 7 157
Intestates' Estates (Amendment) Bill 157
Annex 8 178
Inheritance (Provision for Family and Dependants) Bill 178
Annex 9 211
Law Amendment and Reform (Consolidation) (Amendment) Bill 211
vi
Introduction
________________
1. On 3 September 1984, the Chief Justice and Attorney General,
under powers granted by the Governor in Council on 15 January 1980, as
amended on 7 June 1983, referred to the Law Reform Commission ("the
Commission") for consideration and report the following questions –
"Law of Wills
1. Should the law relating to wills be changed having regard –
(a) to the reforming provisions of Part IV of the
Administration of Justice Act 1982 of the United Kingdom;
and
(b) to the needs of Chinese testators making wills under
section 5(2) of the Wills Ordinance (Cap. 30)?
2. Is it necessary or desirable for the law of Hong Kong to provide
for the making of 'international wills' to conform with the Annex to the
'Convention providing a Uniform Law on the Form of an International
Will' concluded at Washington on 26 October 1973?
Law of Intestate Succession
3. (a) Generally, is the existing law relating to intestate
succession satisfactory or are any changes in that law
necessary or desirable?
(b) Specifically, is the existing law, which provides on an
intestacy for the separate devolution of land to which
Part II of the New Territories Ordinance (Cap. 97) applies,
satisfactory?
Provision for Deceased Persons' Families and Dependants
4. Is the law relating to the making of adequate provision, including
maintenance and support, for the dependants and families of deceased
persons, satisfactory or are any changes in that law desirable?"
Summary of work
2. On 5 October 1984 the Law Reform Commission appointed a
sub-committee to consider the matter under the chairmanship of Mr Brian
1
McElney JP, a member of the Commission. The other sub-committee
members were: –
Professor Dafydd Evans School of Law, University of Hong Kong
Miss Elsie O S LEUNG Solicitor
Partner, P H Sin & Co
Dr P A L Vine Solicitor
Partner, Deacons
Dr WONG Tin-chun Dentist
Dental Clinic, Central Government Offices
3. In October 1986 the sub-committee completed a working paper
which was circulated to the persons or organisations set out in Annexure 2 for
their comments. All comments received were considered and, where
appropriate, incorporated in the sub-committee's preliminary report. The
Commission considered this report at its 56th, 58th and 59th meetings. A
revised report was compiled by the sub-committee in the light of the
Commission's comments and this report was considered by the Commission
at its 67th, 68th, 69th and 71st meetings.
4. We wish to record our appreciation of the assistance given to
the Commission by the members of the sub-committee, all of whom have
given unstintingly of their time and expertise over a period of almost five years.
We also wish to thank all those who so helpfully commented on the working
paper. We wish also to express our gratitude to those members of the Law
Reform Commission Secretariat who have assisted the sub-committee during
that period, namely Geoffrey Grimmett, Michael Darwyne, Michael Scott, Mark
Berthold and Michelle Ainsworth.
2
