PROBATES ORDINANCE, 1897
Title
PROBATES ORDINANCE, 1897
Description
no. 7 of 1897
an ordinance to consolidate and amend the laws relating
to probates and letters of administration. [15th May, 1897]
1. this ordinance may be cited as teh probates ordi-
nance, 1897.
2. in this ordinance,
(a) administration comprehends all letters of admin-
istration of the estates of deceased person, whether with or
without a will annexed, and whether granted for general,
special, or limited purposes.
(b) the court menas the supreme court exercising
jurisdiction under this ordinance.
(c) estate or property of a deceased person means
the personal estate and effects of whatever kind of such
person, and includes property passing on the death of such
person.
(d) estate duty means estate duty under the estate
duty ordinance, 1915.
(e) meatters and causes testamentary comprehend all
matters and causes relating to the granting and revocation
of probate of wills and of administration.
(f) next of kin includes persons entitled in their own
right to property passing on the death of any person.
as amended by law rev. ord., 1923
as amended by no. 16 of 1915.
PART I
JURISDICTION AND POWERS OF THE COURT
3.(1) the voluntary and contentious jurisdiction and
authority in relation to the granting and revocation of
probate of wills and of letters of administration of the estates
of deceased persons, together with full authority to hear and
determine all questions relating to matters and causes
testamentary, shall as heretofore belong to and be vested in
and be exercised in the name of his majesty by the supreme
court.
(2) the supreme court shall as heretofore, for the purposes
of the ordinance, be deemed a court of probate and shall
be a court of record, and shall have the same powers, and
its grants and orders shall have the same effect, in this
colony, and in relation to the estates in this colony of
deceased person, as the sureme court and its grants and
orders respectively now have or hitherto have had in relation
to matters and causes testamentary and estates of deceased
persons within the jurisdiction of the supreme court, and
all duties which are or have been imposed on or should be
performed by the supreme court in respect of probates,
administrations, and matters and causes testamentary shall
be performed by the supreme court under the probate
jurisdiction hereby continued: provided that no suits for
legacies, or suits for he distributio of residues, shall be
entertained by the supreme court in its probate jurisdiction.
4. the judge shall have and may exercise full power of
altering and amending any grant of probate or of administra-
tion, whether made before or after the commencement of this
ordinance.
5. no officer or clerk of hte court shall, during the time
of his holding such office, directly or indirectly practise as a
barrister or solicitor, or receiver or participate in the fees of
any other person so practising.
6. all probates, administrations, orders and other instru-
ments, and all exemplifications and copies thereof, shall
respectively be sealed with the seal of the supreme court,
and any such document purporting to be so sealed shall be
received in evidence, in any cause or proceeding of whatever
kind, without further proof thereof.
7.(1) the court may require the attendance of any
party in person, or of any person whom it may think fit to
examine or cause to be examined, in any action or other
proceeding in respect of matters or causes testamentary, and
may examine or cause to be examined upon oathe paries and
withnesses bny word of mouthe, and may, either before or after
or with or without such examination, cause them or any of
them to be examined upon interrogatories or receive their or
any of their affidavits.
(2) the court may by writ require the attendance of
any such party or witness, and order to be produced before
itself or otherwise any deeds, evidences, or writings, in the
same from, as nearly as may be, as that in which a writ of
subpoena ad testificandum or of subpoena duces tecum is now
issued by the supreme court in its original jurisdiction.
8. the court shall have the like powers, jurisdiction, and
authority for enforcing the attendance of persons required
by it as aforesaid, and for punishing persons failing,
neglecting, or refusing to produce deeds, evidences, or
writings, or refusing to appear, or to be sworn, or to give
evidence, or guilty of contempt, and generally for enforcing
all orders, decrees, and judgments made or given by the
court under this ordinance and owtherwise in relation to the
matters to be inquired into and done by or under the orders
of the court under this ordinance as are for the time being
vested by law in the supreme court for such purposes in
relation to any action or matter depending in the said court
in its original jurisdiction.
9.(1) the court may, on motion or petition or otherwise,
in a summary way, whether any action or other proceeding
is or is not pending in the court with respect to any
probate or administrartion, order any person to produce and
bring into the registry of the court, or otherwise as the court
may direct, any paper or writing being or purporting to be
testamentary which may be shown to be in the possession or
under the control of such person.,
(2) if it is not shown that any such paper or writing is in
the possession or under the control of such person, but it
appears that there are reasonable grounds for believing that
he has knowledge of any such paper or writing, the court
as amedned by law am ord 1923
may direct such person to attend for the purpose of being
examined in open court or upon interrogatories respecting
the same, and such preson shall be bound to answer such
questions or interrogatories, and , if so ordered, to produce
and bring in such paper or writing, and shall be subject to
the like process of contempt in case of default in not attending
or in not answering such questions or interrogatories, or not
bringing in such paper or writing, as he would have been
subject to in case he had been a party to an action in the
court and had made such default.
10.(1) the registrart of the supreme court, any any
other person whom the chief justice may, under the seal
of the supreme court, appoint for that prupose shall
respectively have full power to administer oaths and to
perform such other duties in reference to matters and causes
testamentary as may be assigned to them by any rules and
orders made under this ordinance.
(2) every commissioner for taking oaths in the supreme
court in its original jurisdiction shall be a commissioner for
taking oaths in the court.
part II
the official administrator.
11.(1) the registrar of the supreme court shall be ex
officio official administrator under this ordinance.
(2) in all cases the official administrator shall be subject
ot the immediate control and act under the direction of the
court.
12. a grant of administration to the official administrator,
whether the name of the grnatee, the officer holding
the appointment at the time of the grant, is or is not
mentioned therein, shall be deemed to have been made and
to be made, as the case may be, to him and his successors in
office.
13. all property vested in the official administrator for
the time being by virtue of any grant of administration made
to him or any predecessor in officer or otherwise shall, on his
vacating or ohterwise ceasing to hold the office, be deemed
to be vested in his successor without any further transfer or
convoyance.
14.(1) is shall be lawful for ;the officail administrator,
whenever he thinks it expedient to do so and upon such
evidence of death as he deems sufficient, to receive or take
possesion of the private papers, moneys, goods, chattels, and
other movable property whatsoever of any deceased person
which may be found within the colony, and to provide for
the safe custody thereof, until probate of the will of such
granted by the court: porvided always that the official
administrator may, in lieu thereof, if he thinks fit, issue
forthwith a commission of appraisement of all or any of such
property.
(2) in case of the deathe of any citized of the united states
of america in the colony, without having in the colony any
known heirs or testamentary executors appointed by him, the
official administrator shall at once inform the nearest
consular officer of the said united states of the fact, in order
that the necessary information may be immediately forwarded
to persons interested. the said consular officer shall have
the right to appear , either personally or by delegate, in all
proceedings on behalf of the absent heirs or creditors until
they are otherwiser represented.
15. every person who, without lawful authority or excuse
in that behalf,
(1) removes or attempts to remove out of the colony any
such property as is mentioned in section 14; or
(2) destroys, conceals, or refuses to yield up any such
property on demand to the official administator,
shall upon summary conviction be liable to a line not exceed-
ing five hundred dollarsd, and to imprisonment, without hard
labour, for any term not exceeding six months.
16. the official administrator shall have a lien, upon all
property mentioned in section 14 for the reasonable expenses
incurred by him in respect thereof in carrying out the provi-
sions fo the said section, and such expenses shall also
constitute a primary charge ont he estate of the deceased
person.
as amended b;y law rev. ord., 1923
17.(1) when an7y person dies leaving a will within the
colony, the person in whose keeping such will has been
deposited, or who finds usch will after the testator's death,
shall produce, and , if required, shall deliver, the same to the
official administrator within fourteen days after the death
of the testator, or fromt he time when he has had notice
thereof, or from the time of the finding of the will, as the
case may be,
(2) every person who refuses or neglects to comply with
the requirements of this section shall upon summary convic-
tion be liable to a fine not exceeding five hundred dollars,
18. fron and after the decease of any person dying
intestate and until administration is granted in respect of his
estate, the estate of such deceased person shall be vested in
the official administrator.
19. when the whole estate of any person dying intestate
in the colony does not, in the opinion of the official
administrator, exceedin value the sum of two hundred and
fifty dollars, it shall be lawful for the official administrator,
if he thinks fit, without any legal formality, to receive or
take possesio of such estate and to administer the same in
a summary manner for the benefit of all persons interested
therein.
20. (1) ;on aplication made by the offical administrator,
the court shll, unlessit sees good reason to the contrary,
grant to him administration in any of the follwing cases:-
(a) where a person dying intestate, whether in this colony
or else where, has left property situate in the colony and
no next of kin of such person are resident in the colony:
(b) where a person dying intestate, whether in this colony
or elsewhere, has left property situate in the colony and the
next of kin of such person who are resident in the colony file
in the registry of the court a request for or consent to the
making of such grant, in writing signed by them:
(c) where a person dying intestate, whether in this colony
or elsewhere, has left property situate in the colony and no
person has, within twelve months after the death of such
perosn, obtained administration of his estate; and
as amended by no. 16 of 1915
as amended by law am ord., 1923..
(d)where a person dying intestate, whether in this colony
or eslewhere, has left property situate in the colony and the
next of kin of such person who are resident in the colony
are infants uner the age of twenty-one years.
(2) the provisions of this section shall apply, with the
necessary modifications, in the case of a person who dies
testate, whether in this colony or elsewhere, but without
appointing an executor, or whose executor, if appointed
drefuses, neglects, or is unable to act.
21. nothing in this ordinance shall be construed to enable
or require the official administrator to obtaine administration
of the estate of any person dying in the naval or military
SERVICE OF HIS MAJESTY AND SUBJECT TO the articles of war, or
of any deceased seaman or apprentice for the adminstration
of whose estate provision is made by any act of parliament.
or of any person for the administration of whose estate
special porvision is otherwise made in part V.
22. any grant made to the official administrator under
this ordinance may be limited in respect of time or in any
other respect as to the court may seem fit.
23. subject to the special direction of the court to the
contrary in any particular case, the official administrator
shall bring the administration of every estate of which he
has obtained administration to a close within the period
fixed by law for that purpose in the case of an ordinary
administrator.
24. a commission at the rate of five per cent, shall be
chargeable on the gross value of all property of whatsoever
nature received or taken possession of, or realized or other-
wise dealt with, by the official administrator under this
ordinance.
25. the provisions of the unclaimed balances ordinance,
1885, in relation to unclaimed balances of the estates of per-
sons dying intestate, shall mutat is mutandis apply to moneys
received or taken possession of by the official administrator
uner section 14 or section 19 of this ordinance : provided
as amended by no. 16 of 1915.
that the periods mentioned in the said provisions shall in
respect of such moneys be computed from the dates on
which they were respectively received or taken possession of.
26.(1) the official administrator shall keep a general
register of all estates under his administration, a cash books
and a ledger or account current book, and such other books
as he may find necessary or may be prescribed.
(2) he shall enter in books, to be kept by him for that
purpose, separeate and distinct accounts of each estate and
of all property of every description which may come to his
hands, and also of all payments made by him on account
of each estate, specifying the dates of such receipts and
payments respectively.
(3) each book shall be kept in the registry of the court,
and shall be open during office hours for the inspection of
any person who has occasion to inspect the same, on pay-
mnet of the prescribed fee.
27.(1) the official administrator shall give to any
person who applies for the same copies of all documents and
accounts in his possesssion relating to any estate under his
administration or to any property which he receives or of
which he takes possession under this ordinance, on pay-
ment of the prescribed fees.
(2) if any such copy is refused, the applicant may petition
the court in a summary way for an order on the official
administrator to give such copy; and the costs of any such
petition and order shall be paid by the official adminis-
trator, if the court so directs.
28. the official administrator shall, on the expiration of
each half-year, make out and furnish to the chief justice
and to the colonial secretary a return, according to the form
in the first shcedule, of all estates vested in or administered
by him during the half-year then expired, and he shall pay
into the hands of the treasurer the balance remaining in
respect of each such estate immediately after the same has
been closed.
as amended by law am ord, 1923.
29. no action shall be brought against the official
administrator for anything done by him in respect of the
execution or the intended execution of any power vested in
him by section 14 or section 19, but any person who feels
aggrieved thereby may apply for redress to the court by
summary petition verified upon oath, and the court may
thereupon take such evidence as it thinks fit, and may make
any order in relation to the matter which the justice of the
case requires.
PART III
GRANTING AND REVOCATION OF PROBATES, ETC
caveat
30.(1) a cavest against the grant of any probate or
administration may be lodged in the registry of the court.
(2) subject to any rules or orders made under this
ordinance, the practice and procedure of the court in respect
of any such caveat shall, as nearly as may be, correspond
with the practice and procedure hitherto in use in respect
of such caveats.
executorship
31. where any person renounces probate of the will of
which he is appointed executor or one of the executors, the
right of such person in respect of the executorship shall
wholly cease, and the representation of the testator and the
administration of his estate shall and may, without any
further renunciation, go, devolve, adn be committed in like
manner as if such person had not been appointed executor,
32. whenever and executor appointed in a will survives
the testator but dies without having taken probate, or,
having been cited to take probate, does not appear to such
citation, the right of such person in respect of the executor-
ship shall wholly cease, and the representation of the testator
and the administration of his estate shall go, devolve, and be
committed in like manner as if such person had not been
appointed executor.
administration
33. where a person dies wholly intestate as to his personal
estate or leaving a will affecting personal estate but without
having appointed an executor thereof willing and competent
to take probtae, or where the executor is, at the time of the
death of such perosn, resident out of the colony, or where it
appears to the court to be necessary or convenient to appoint
some person to tbe the administrator of the estate of the
deceased person or of any part of such estate, other than the
person who, if this ordinance had not been passed, would
by law have been entitled to a grant of administration of
such personal estate, it shall be lawful for the court, in its
discretion, to appoint such person as the court thinks fit to
be such administrator, on his giving such security, if any, as
the court may direct, and every such administration may be
limited in such manner as the court thinks fit.
34.(1) at the expiration of twelve months from the
death of any deceased person, if the executor or execurtors to
whom probate of the will has been granted, or the person or
persons to whom administration has been granted, is or
are residing out fo the jurisdiction of the court, it shall be
lawful for the court, on the application of any creditor, next
of kin, or legatee, grounded on an affidavit made for that
purpose, to grant such special administration as it may think
fit of the estate of such deceased person.
(2) if shall be lawful for the court, on application made
for that purpose by any person interested, to direct any shares
or stock in any joint-stock company to be transfetted into
the name of the registrar of the court, in trust for such
purposes as the court may direct, in any action in which the
person to whom such special administration has been granted
is a party: porvided, nevertheless, that if any executor or
administrator of such deceased person, being capbale of
acting as such, returns to and resides within the jurisdiciton
of the court, the court may, if it thinks fit, revoke such
special grant: provided, also, that if any actio is pending
in any court in relation to the estate of such deceased person,
such executor or administrator shall be entitled to be made
a praty htereto.
as amended by law am ord., 1923.
35. The costs incurred by granting any such special
administration shall be paid by such person or out of such
found as the court may direct, and the costs incurred by
porceeding in any action against any such administrator
shall be paid by such person or out of such fund as the court
in which the action is pending may direct.
36.(1) where an infant is sole executor of any deceased
person, administration with the will annexed shall be granted
to the guardian of such infant, or to such other person as the
court may think fit, until such infant has attained the full age
of twenty-one years, at which period, and not before, probate
of the will shall be granted to him,
(2) the person to whom such administration is granted
shall have the same powers vested in him as an adminis-
trator now has by virtue of an administration granted to him
durante minor oetate of the next of kin.
37. after any grant of administration, no person shall
have power to sue or prosecute any action, or otherwise to
act as executor of the deceased person, as to the personal
estate comprosed in or affected by such grant of administration,
until such administration has been recalled or revoked.
administration pendente lite.
38.(1) pending any action touching the validity of the
will of any deceased person, or for obtaining, recalling, or
revoking any probate or any grant of administration, the
court may appoint an administrator of the estate of such
deceased person.
(2) the administrator so appointed shall have all the
rights and powers of a general administrator, other than the
right of distributing the residue of such estate.
(3) every such administrator shall be subject to the
immediate control of the court and act under its direction.
39. all the provisions of section 38 relating to grants of
administration pending action shall be deemed to apply to
the case of an appeal to his majesty in council from any
decision of the court.
As amended by Law Rev. Ord., 1923.
administration bond
40. every person (other than the official administrator)
to whom any grant of administration is committed shall,
unless the court otherwise directs, give a bond, with (if the
court requires) one or more surety or sureties, conditioned
for duly collecting, getting in, and administering the estate
of the deceased person, and the bond shall be in such form
as the judge may direct: provided that it shall not be
necessary for the captain superintendent of police, when
applying for or obtaining administration of the estate of a
person dying whilst employed in the police force, as herein-
after provided, to give any such bond as aforesaid.
41. every such bond shall be in a penalty of double the
amount under which the estate of the deceased person is
sworn, unless the court in any case thinks fit to direct the
same to be reduced, in which case it shall be lawful for the
bonds than one shall be given so as to limit the liability of
any surety to such amount as the court thinks reasonable.
revocation of grant
42. when any probate or administration is revoked, all
payments bona fide made to any executor or administrator
under such probte or administration before the revocation
thereof shall be a legal discharge to the person making the
same, and the executor or administrator who has acted under
any such revoked probate or administration may retain and
reimburse himself in respect of any payments made by him
which the person to whom probate or administration is after-
wards granted might have lawfully made.
43. all persons making or permitting to be made any
payment or transfer bona fide upon any probate or adminis-
tration granted in respect of the estate of any deceased
person shall be indemnified and protected in so doing,
notwithstanding any defect or ohter thing whatsoever affect-
ing the validity of such probate or administration.
44. where, before the revocation of any temporary
administration, any proceedings have been commenced in
the supreme court in its original jurisdiction by or against
any administrator so appointedd, the court in its probate
jurisdiction may order that a suggestion be made upon the
record of the revocation of such administration, and of the
grant of probate or administration which has been made
consequent thereupon, and that the proceedings shall be
continued in the name of the new executor or administrator
in like manner as if the proceedings had been originally
commenced by or against such nes executor or administra-
tor, but subject to such conditions and variations, if any, as
the court may direct.
practice
45. the practice of the court shall, except where other-
wise provided by this ordinance or by the rules or orders
made thereunder, be, so far as the circumstances of the
case will admit, according to the practice hitherto prevailing
in the same.
46. it shall be lawful for the judge to sit in chambers for
the despatch of such business of the court as can, in the
opinion of the judge, with advantage to the suitors be heard
in chambers; and the times at which such sittings shall be
held shall be fixed by the judge: provided that no matter
shall be heard in chambers which either party requires to
be heard in court.
47. the judge, when so sitting in chambers, shall have
and exercise the same power and jurisdiction in respect of
any business brought before him as if he were sitting in
court.
48. the court shall have the same powers with regard to
the sosts of any action or ohter proceeding as the supreme
court has with regard to costs in actions and other proceed-
ings in its original jurisdiction.
evidence
49.(1) subject to any rules or orders made uner this
ordinance, the withnesses, and where necessary the parties, in
all contentious matters where their attendance can be had
shalll be examined orally by or before the judge in court;
provided that, subject to any such rules or orders as aforesaid,
the parties shall be at liberty ot verify their respective cases.
in whole or in part, by affidavit, but so that the deponent in
every such affidavit shall, on the application of the opposite
party, be subject to be cross-examined by or on behalf of such
opposite party orally in court as aforesaid, and after such
cross-examination may be re-esamined orally in court as
aforesaid by or on behalf of the party by whom such affidavit
was filed.
(2) provided that when a witness in any such matter is
out of the jurisdiction of the court, or when, by reason of his
illness or otherwise, the court does not think fit to enforec
his attendance incourt, it shall be lawful for the court to
order a commission to issue for his examination upon
interrogatories or otherwise, or , if the witness is within the
jurisdition of the court, to order his examination, upon
interrogatories or otherwise, before any officer of the court
or other person named for that purpose in the order.
50. an affidavit sworn out of the colony in the manner
mentioned in any ordinance relating to evidence may be
used in any action or proceeding in the court.
51. the rules of evidence observed in teh supreme court
inits original jurisdiction shall be applicable to and be
observed in the trial of all questions of fact in the court.
trail of question of fact by jury
52. on the application of any party to any actionor
proceeding incourt of of its own motion, it shall be lawful
for the court to cause any question of fact arising insuch
action or proceeding to be tried by a special or commonjury.
53.(1) when the court orders a question of fact to be
tried by a jury, the court may make all such rules and orders
for procuring the attendance of a special or common jury
for the trial of such question as may now be made by the
supreme court in its original jurisdiction, and may also make
any other orders which to the court may seem requisite.
(2) every such jury shall be struck, summoned, balloted
for, and called in like manner as if such jury were a jury
for the trial of any cause in the supreme court; and every
juryman so summoned shall be entitled to the same rights,
and subject to the same duties and liabilities, as if he had
been duly summoned for the trial of any such cause in the
supreme court; and every party to any such proceeding
shall be entitled to the same rights as to challenge and
otherwise as if he were a party to any such cause.
(3) generally, for all purposes of or auxiliary to the trial
of quesitons of fact by a jury before the court, and in respect
of new trials thereof, and anso for all purposes in relation to
or consequential upon the direction of issues, the court shall
have the same jurisdiciton, powers, and authority in all
respects as belong to the supreme court for the like purposes.
54.(1) when the court orders a question of fact to be
tried by a jury, the question shall be reduced into writing in
such form as the court may direct, and at the trial the jury
shall be empanelled to try the question and a true verdict to
give thereon according to the evidence.
(2) on every such trial, the court shall have the same
jurisdiction, powers, and authority in all respects as belong
to a judge of the supreme court sitting in its original
jurisdiction.
calendars of grants
55.(1) the judge shall cause to be made in the registry
of the court and to be printed calendars fo the grants of
probate and administration therein for such periods as the
judge may think fit.
(2) every such calendar shall contain a note of every
probate, or administration with the will annexed, or
administration granted within the period there specificed.
(3) every such note shall set forth the date of teh grant,
the name of the testator or intestate, the place and time of
death, the names and descirptions of the executors or
administrators, and the value of the effects as sert forth in
any commission of appraisement or otherwise.
56. the registrar of the court shall cause a copy of every
such calendar to be transmitted to the governor, to the
principal registry of the probate division of the high court
of juustice in england, to the sheriff court of the country of
edinburgh in soctland, to the principal registry of the
probate division of the high court of justice in ireland,
and to such other officers, if any, as teh judge may direct.
as amended by law am ord., 1923
PART IV
RULES FOR ADMINISTRATION OF PROPERTY
57. in the administration of the estate of every deceased
person, no debt or liability of such person shall be entitled
to any priorty or preference by reason merely that the same
is secured by or asirs under a bond, deed, or ohter instru-
ment under seal, or is otherwise made or constituted a
specialty debt; but all the creditors of such person, as well
specialty as simple contract, shall be treated as standing in
equal degree, and be paid accordingly out of the assetsof
such deceased person, whether such assets are legal or
equitable : provided that this ordinance shall not prejudice
or affect any lien, charge, or other security which any
creditor may hold or be entitled to for the payment of his
debt.
58.(1) any executor or administrator may apply by
summary petition to the court for an order limiting the time
for creditors and others to send in theri claims against the
estate of the testator or intestate, and specifying what notices
are to be given of the making of such order and of the
time thereby limited; and the court may make such order
thereon as it thinks fit,
(2) where an executor or administrator has given the notices
specified in any such order, he shall, at the expiration of the
time limited thereby for sending in such claims, be at liberty
to distribute the assets of the testator or intestate, or any
part thereof, amongst the parties entitled thereto, having
regard to the claims of which he has then notice, and shall
not be liable for the assets, or any part thereof, so distributed
to any person of whose claim he has not had notice at the
time of distribution of the assets or a part thereof, as the
case may be.
(3) nothing in this section shall prejudice the right of any
creditor or claimant to follow the assets, or any part thereof,
into the hands of any persons who may have received the
same respectively.
59. it shall be lawful for the court to allow to any executor
or administrator, including an administrator appointed
pendent lite as aforesaid, such remuneration out of the estate
of the deceased person as may be just and reasonable for his
apins and trouble therein: provided that no allowance
whatever shall be made to any executor or administrator who
neglects to pass his accounts at such time, or to dispose of
any moneys, goods, chattels, or securities with which he is
chargeable in such manner, as in pursuance of any rule or
order or practice of the court, may be requisite.
60. whenever any person who is a native of china dies
intestate leaving property within the jurisdiction of the court,
and it necessary to obtain proof of the law of china for the
prupose of regulating the administration of the property of
such deceased person according to the law of his domicile, it
shall be lawful for the court, in its discretion, to receive in
evidence nay written statemnet of the law of china which is
certified by any british consular officer in china under his
official seal to have been obtained by him from an officer of
the chinese government for the purposes of such administra-
tion and with reference to the facts of the particular case
under consideration, and thereafter to act upon such written
statement in such manner as it thinks fit.
PART V
SPECIAL AND EXCERTED CASES
ESTATES OF SMALL VALUE
61.(1) where the whole estate of any person dying
intestate in the colony does not exceed in value the sum of
five hundred dollars, his widow or any one or more of his
childred, as the case may be., (provided such widow or child
or childred respectively is or are resident in the colony), or
if such person is a widow, any one or more of her children
(provided such child or children is or are resident in the
colony), may make application in that behalfo to the
registrar of the court, who shall fill up the usual papers
required by the court to lead to a grant of administration of
the estate of the intestate, and shall swear or declare the
applicant and attest the executionof the administration bond
required according to the practice of the court; and he
administration of the estate of the intestate and deliver them
tot he applicant, without payment of any fee, except as is
provided by this section.
as amended by law am ord., 1923.
(2) the registrar of the court may require such proof as
he may think sufficient to establish the identity and relation-
ship of the applicant.
(3) if the registrar of the court has reason to believe that
the whole estate of which the intestate died possessed
exceeds in value the sum of five hundred dollars, he shall
refuse to proceed with the application until he is satisfied
that such value does not exceed that amount.
(4) an applicant under this section shall not be required
by any table of fees framed under this ordinance to pay a
greater amount of fees than the amount applicable to the
case which is mentioned in the second schedule.
(5) nothing in this section shall be construed to affect any
duty for the time being payable by lwa on administrations.
SMALL SUMS PAYABLE BY PUBLIC DEPARTMENTS TO
DECEASED PERSONS.
62.(1) on the death of any person to whom any sum
of money not exceeding five hundred dollars is payable by
a public department within the colony in respect of civil
pay or allowances or annuities granted either under the
authority of his majesty's government or of the government
of teh colony, it shall be lawful for the treasurer, on being
satisfied of the expediency of dispensing with probate or
administration, to authorise the payment of such sum to
such person or persons as the treasurer may consider
entitled thereto, without requiring the production of probate
or administration.
(2) payment of all such sums of money shall be made
unser such regulations as the treasurer may, with the
approval of the governor, make for the purpose.
63. any payment made under the provisions of section 62
shall be valid against all persons whatever, and all
persons acting under the said provisions shall be absolutely
discharged fdrom all liability in respect of any moneys duly
paid or applied by them under the said provisions.
As amended by Law Rew. Ord., 1923.
ESTATES OF DECEASED MEMBERS OF POLICE FORCE
64.(1)any person employed in the police force under
the rank of inspector and dying whilst so employed shall
not be deemed to be within the meaning of the preceding
provisions of this ordinance; but the captain superintendent
of police is hereby constituted the official administrator of
his estate, and is required to get in and administer the same,
with the samction of the colonial secretary, and , within one
month after the death of any such person, to certify the
same and the amoujnt in value of the estate of such person,
by certificate under his hand, to the registrar of the court
for registry in the court; and he shall also pay over to the
treasurer the balance of every such estate, after payment of
all lawful claims against the same.
(2) it shall be lawful for the colonial secretary, on the
application of the captain superintendent of police, at any
time to sign an order uon the treasurer ofr the payment
of the whole or any part of such balance to such person or
persons as may appear to be entitled thereto, and the
treasurer shall comply with such order.
ESTATES OF PERSONS DYING ON COYAGES TO THE COLONY
65.(1) the following special provisions shall regulate
the administration of the estates of passengers who dies at
sea in the course of a vayage to the colony on board of any
vessel which afterwards arrives in teh colony;
(a) where any passenger has died on board of any vessel
in the course of a voyage to the colony, the master of the
vessel in which such passenger has died shall, immediately
upon the arrival of the vessel in the colony, hand over to
the harbour master all the goods and effects of such
passenger then on board of such vessel;
(b) thereupon teh harbour master shall take possession of
such goods and effects, and,
(i) if he thinks thak their valne is more than one hundred
dollars he shall forthwith hand them over to the Official
Administrator, to whom he shall also furnish in writing all
such information as he may have been able to obtain about
the deceased passenger and as he may consider likely to be
useful for the due administration of the estate and,
As amended by Law Am. Ord., 1923.
As amended by Law Rev. Ord., 1923, and Law, Am. Ord., 1923.
(ii) if he thinks that their value is not more than one
hundred dollars, he shall, in such manner as he may consider
just nad conveninet, distribute them amongst the persons
who may appear to him, in his discretion, to be entitled
thereto, or, if he can find no such persons within one month
of the time when the goods and effects came into his hands,
then he shall sell them and pay the proceeds of the sale into
the treasury to a special account to be there kept for that
purpose;
(c) at any time with twelve months of the time when
the proceeds of any estate have been paid into the treasury
under this section, any person entitled to the said proceeds,
or to any portion thereof, may apply to the harbour master
for the same, and , at the expiration of the siad twelve months,
the harbour master may make application in that behalf to
the treasureer, and the treasurer shall pay to the harbour
master the said proceeds or a portion thereof, and the
harbour master shall distribute the same amongst the
applicants in such manner as he may consider just and
convenient;
(d) before distributing any estate or paying the proceeds
of any estate into the treasury under this section, the
harbour master shall deduct the amount of any expenses or
costs which he may have incurred in advertising or other-
wise in the administration of the same; and
(e) if no person entitled applies to the harbour master
under paragraph (c) within the twelve months mentioned
in that paragraph, the proceeds of the estate shall be paid
over to the general revenue; but it shall be lawful for the
governor, within a period of six years thereafter, to direct a
refund of the same, or any portion thereof, to any person
who establishes, to his satisfaction, a legal, equitable, or
moral claim thereto.
(2) for the purposes of this section, voyage of a passenger
to the colony means the voyage of a passenger which
would in the ordinary course terminate in the colony as the
port of destination of the passenger.
(3) every master of a vessel who refuses or neglects to
comply with the requirements of this section, shall upon
summary conviction be liable to a fine not exceeding one
hundred dollars.
PART VI
BRITISH AND COLONIAL PROBATES
BRITISH PROBATES
66. In the provisions of this part relating to british
probates-
(a) court of probate means any court or authority, by
whatever name designated, having jurisdiction in matters of
probate.
(b) probate and administration include confirmation
in scotland.
it is hereby declared that all probates or letters of adminis-
tration granted by a court of probate in the united kingdom
and duly sealed with the seal of the supreme court under
the provisions of the united kingdom probates ordinance,
1892, shall notwithstanding anything in such ordinance
contained by and be deemed to have been as from the date
of such sealing of the like force and effect in this colony as
if the words and in scotland means the sheriff court of
the county of edinburgh had never been contained in
section 4 of that ordinance.
67.(1) where a court of probate in the united kingdom
has granted probate or administration in respect of the
estate of a deceased person, the probate or administration so
granted may, on being produced to and a copy thereof
deposited wiht the court, be sealed with the seal of the court,
and thereupon shall be of the like force and effect and have
the same operation in the colony as if granted by the court.
(2) provided that the court shall, before sealing a probate
or administration under this section , be satisfied.
(a) that probate duty or estate duty has been paid in
respect of so much, if any, of the estate as is liable to probate
duty or estate duty in the colony; and
no. 14 of 1892 was repealed by no. 3 of 1897; (old numbering) and section 4
became section 66 of no. 2 of 1897 (carringtion's numbering). then no. 1 of
1907 deleted the words and in scotland means the sheriff court of the country
of edinburgh from section 66 of the 1897 ordinance with effect from the
commencement thereof and also as seen above from the repealed 1892 ordinance
from its commencement.
as amended by no. 16 of 1915.
(b) in the case of administration, that security has been
given in a sum sufficient in amount to cover the property, if
any, in the colony to which the administration relates;
and the court may require such evidence, if any, as it thinks
fit as to the domicile of the deceased person.
(3) the court may also, if it thinks fit, on the application
of any creditor, require, before sealing, that adequate security
be given for the payment of debts due from the estate to
creditors residing in the colony.
(4) for the purposes of this section, a duplicate of any
probate or administration sealed with the seal of the court of
probate granting the same, or a copy thereof certified as
correct by or under the authority of such court, shall have
the same effect as the original
(5) all ordinances, enactments, and rules relating to
kprobate duty or estate duty, or to fees and costs in the court,
shall aply to applications for sealing under this section to
the same extent and in the same manner as if the person
who applies for such sealing were a person applying to the
court for probate or administration.
68. section s 66 and 67 shall apply to probates and
administrations granted in teh united kingdom either before
or after the communcement of this ordinance.
colonial probates.
69. in the provisions of this part relating to colonial
probates
(a) british court in a foreign country means any british
court having jurisdiction out of his majesty's dominions in
pursuance of an order in council, whether made under any
act of parliament or otherwise.
(b) court of probate means any court or authority, by
whatever name designeated, having jurisdiction in matters
of probate.
(c) probate and administration include any instru-
ment having, in a british possession, the same effect as,
under the law of this colony, is given to probate and
administration respectively.
(d) probate duty includes any stamp or other duty
payable on the value of the estate for which probate or
administration is granted.
as amended by law rev., ord., 1923.
70. The Governor in council may, on being satisfied that
the legislature of any British possession has made adequate
provision for the recognition in that possession of probates
and administratious granted by the court, direct by order
that the provisions of this Part relating to colonial probates
shall, subject to any exceptions and modifications specified
in the order, apply to that possession, and thereupon while
the order is in force, those provisions shall apply accordingly.
71.-(1) Where a court of probate in a British possession
to which the provisions of this Part relating to colonial
probates apply has granted probate or administration in
respect of the estate of a deceased person, the probate or
administration so granted may, on being produced to and a
copy thereof deposited with the court, be sealed with the
seal of the court, and thereupon shall be of the like force
and effect and have the same operation in the colony as if
granted by the court.
(2) Provided that the court shall, before sealing a probate
or administration under this section, be satisfied-
( a) that probate duty or estate duty has been paid in
respect of so much, if any, of the estate as liable to probate
duty or estate duty in the Colony; and,
(b) in the case of administration, that security has been
given in a sum sufficient in amount to cover the property, if
any, in the Colony to which the administration relates;
and the court may require such evidence, if any, as it thinks
fit as to the domicile of the deceased person.
(3), The court may also, lF it thinks fit, on the application
of any creditor, require, before sealing, that adequate security
be given for the payment of debts due from the estate to
creditors residing in the Colony.
(4) For the purposes of this section, a duplicate of any
probate or administration sealed with the seal of the court
of probate granting the same or a copy thereof certified as
correct by or under the authority of such court, shall have
the same effect as teh original.
for list of places to which by virtue of this section the provisions of part vi
relating to colonial probates have been applied see hodgson's regulations of
hongkong, 1914, p. 466-467, and g.n. 143 of 1916.
as amended by no. 16 of 1915.
(5) all ordinances, enactments, and rules of court relating
to probate duty, or to fees and costs in the court, shall apply
to applications for sealing under this section to the same
extent and in the same manner as if the person who applies
for such sealing were a person applying to the court for
probate or administration.
72. the provisions of this part relating to colonial pro-
bates shall apply to probates and administrations granted in
a british possession to which the ordinance is applied,
either before or after the commencement of this ordinance.
73. the provisions of this part relating to colonial probates
shall extend to authorise the sealing by the court of any
probate or administsration granted by a british court ina
foreign country in like manner as they authorise the sealing of
a probate or administration granted in a british possession to
which the said provisions apply, and the said provisions
shall apply accordingly, with the necessary modifications.
part vii
miscellaneous
74. the chief justice may make general rules and orders,
subject to the approval of the legislative council, for the
following purposes:
(a) fodr regulating the practice and procedure of the court,
and the several forms of petitions, orders and other proceed-
ings to be used in the court;
(b) for regulating the duties of the various officers of the
court;
(c) for regulating the fees to be taken by the officers of the
court and to be allowed to counsel and solicitors practising
in the court, and the fees, charges, and costs to be taken and
allowed with respect to all proceedings and all other matters
in the court;
(d) for regulating the filing, custody, and inspection of
records, and
(e) generally for the better carrying out of the provisions
of this ordinance.
see hodgson's regulations of hongkong, 1914 pp 467, 468
75. until such rules and orders have been made as
aforesaid, the court may direct, either generally or in any
particular case, that the rules and orders in relation to matters
of probate and administration in the probate division of the
high court of justice in england or any part thereof, and
the forms of proceedings in use therein or any of them, with
such modifications as the circumstances may require, shall
be followed and adopted in teh court.
76. an official copy of the whole or anypart of a will., or
an official certificate of the grant of any administration, may
be obtained from the registry of the court on the payment
of such fees as may be fixed for the same by the rules and
orders made under this ordinance.
77. all administrations heretofore granted to any
official administrator shall be deemed to have been made to
the official administrator for the time being and to his
successors in office: provided that no act heretofore done by
any person under any grant of administration made to him
as official administrator shall be deemed, to be affected or
rendered invalid on account of the passing of this ordinance.
[ss. 78 to 81, rep. no. 1 of 1912.]
first schedule
form of return of estates of intestates
return of estates of intestates for the half-year ending
(signed) a.b. official administrator
dated the day of 19
second schedule [s. 61.]
fees payable in respect of small estates
where the whole estate of the intestate does not exceed in value $100,
the sum of $1; and where the whole estate exceeds in value $100, the
sum of $1, and the further sum of 20 cents for every $50 or fraction of
$50 by which the value exceeds $100.
no. 3 of 1897, repealed by no. 5 of 1903.
[Originally No. 3 of 1897. No. 16 of 1913. Law Rev. Ord., 1924.] Short title. Interpretation. Ordinance No. 16 of 1915. General jurisdiction of the court in matters of probate and administration. 20 & 21 Vict, c. 77, s. 4. 20 & 21 Vict, c. 77, s. 23. Power of altering probate, etc., already granted. Prohibition of officer of the court practising. Sealing of documents. 20 & 21 Vict, c. 77, s. 22. Powers as to requiring attendance of and examining parties and witnesses. 20 & 21 Vict, c. 77, s. 24. General powers of enforcing process. 20 & 21 Vict, c. 77, s. 25. Power of ordering production of testamentary writings. 20 & 21 Vict, c. 77, s. 26. administration of oaths, etc. 20 & 21 Vict, c. 77, s. 27. Registrar to be Official Administrator. Effect of grant to Official Administrator. Re-vesting or property on vacation of office. Power to Official Administrator to take possession of property of deceased person until grant. Estates of Americans. Punishment of person unlawfully removing out of the Colony property of deceased person. Lien on property of deceased person for expenses incurred under s. 14. Person having or finding will to produce it. Vesting of estate of deceased person in Official Administrator. Power to administer estate of intestate, not exceeding $250, in summary manner. Cases in which Official Administrator is entitled to administration. Saving as to estates of certain persons. Power of limiting grant. Period for closing administration of estate. Commission on moneys received. Application of Ordinance No. 1 of 1885, to moneys received. Keeping of books of account. Copies of documents and accounts. Half-yearly returns. First Schedule. Redress against action of Official Administrator. Practice as to caveat against grant. 20 & 21 Vict, c. 77, s. 53. Effect of executor renouncing probate. 20 & 21 Vict, c. 77, s. 79. Effect of executor not taking probate. 21 & 22 Vict, c. 95, s. 16. Appointment of administrator of intestate's estate. 20 & 21 Vict, c. 77, s. 73. Grant of special administration where executor or administrator is out of jurisdiction. Payment of costs relating to special administration. Case of infant being sole executor. 38 Geo. 3, c. 87, s. 6. 38 Geo. 3, c. 87, s. 7. Prohibition of executor acting pending administration. 20 & 21 Vict, c. 77, s. 75. Appointment of administrator pendente lite. 20 & 21 Vict, c. 77, s. 70. Administration pending appeal. Bond to be given by administrator. 20 & 21 Vict, c. 77, s. 81. Amount of bond. 20 & 21 Vict, c. 77, s. 82. Validation of payments made under probate or administration subsequently revoked. 20 & 21 Vict, c. 77, s. 77. Validation of payments made under defective probate or administration. 20 & 21 Vict, c. 77, s. 78. Continuance of proceedings begun under temporary administration subsequently revoked. 20 & 21 Vict, c. 77, s. 76. Practice in matters not provided for. 20 & 21 Vict, c. 77, s. 79. Sittings in chambers. 20 & 21 Vict, c. 95, s. 3. Powers of judge sitting in chambers. Powers of the court with regard to costs. Examination or parties and witnesses. 20 & 21 Vict, c. 77, s. 31. Use of affidavit sworn out of the Colony. [cf. No. 2 of 1889.] Rules of evidence. 20 & 21 Vict, c. 77, s. 33. Power to order question of fact to be tried by special or common jury. 20 & 21 Vict, c. 77, s. 35. Procedure and powers on trial of question of fact by jury. 20 & 21 Vict, c. 77, s. 36. [cf. No. 6 of 1887.] Form of question of fact to be tried, etc. 20 & 21 Vict, c. 77, s. 37. Making and particulars of calendars of grants. 20 & 21 Vict, c. 77, s. 67. Distribution of calendars. 20 & 21 Vict, c. 77, s. 68. Specialty and simple contract debts to stand in equal degree. 32 & 33 Vict, c. 46, s. 1. Power to the court to make an order limiting time for creditors to send in claims against estate. 32 & 33 Vict, c. 35, s. 29. Allowance of remuneration to executor or administrator. Proof of Chinese law as to administration of property of deceased person. Summary procedure for administration of estate of person dying intestate under $500 in value. Second Schedule. Power of Treasurer where sum not exceeding $500 is payable by public department to deceased person. Validity of payment made under s. 62. Administration of estate of deceased subordinate member of police force. Administration of estate of passenger dying on voyage to the Colony. [s. 65 contd.] 55 & 56 Vict, c. 6. Interpretation of terms relating to British probates. Validation of probates, etc., sealed under Ordinance No. 14 of 1892. Sealing of probate or administration granted in the United Kingdom, and effect thereof. Application of ss. 66 & 67. Interpretation of terms relating to colonial probates. Power to apply provisions relating to colonial probates to British possession. Sealing of probate or administration granted in British possession, and effect thereof. Application of provisions relating to colonial probates. Extension of provisions to probate, etc., granted by British court in foreign country. General rules and orders relating to practice, duties of officers, fees, and records, 20 & 21 Vict, c. 77, s. 30. Application of rules and orders of Probate Division of High Court in England. Copy of will, etc. 20 & 21 Vict, c. 77, s. 69. Continuance to successors in office of grants of administration made to Official Administrator.
an ordinance to consolidate and amend the laws relating
to probates and letters of administration. [15th May, 1897]
1. this ordinance may be cited as teh probates ordi-
nance, 1897.
2. in this ordinance,
(a) administration comprehends all letters of admin-
istration of the estates of deceased person, whether with or
without a will annexed, and whether granted for general,
special, or limited purposes.
(b) the court menas the supreme court exercising
jurisdiction under this ordinance.
(c) estate or property of a deceased person means
the personal estate and effects of whatever kind of such
person, and includes property passing on the death of such
person.
(d) estate duty means estate duty under the estate
duty ordinance, 1915.
(e) meatters and causes testamentary comprehend all
matters and causes relating to the granting and revocation
of probate of wills and of administration.
(f) next of kin includes persons entitled in their own
right to property passing on the death of any person.
as amended by law rev. ord., 1923
as amended by no. 16 of 1915.
PART I
JURISDICTION AND POWERS OF THE COURT
3.(1) the voluntary and contentious jurisdiction and
authority in relation to the granting and revocation of
probate of wills and of letters of administration of the estates
of deceased persons, together with full authority to hear and
determine all questions relating to matters and causes
testamentary, shall as heretofore belong to and be vested in
and be exercised in the name of his majesty by the supreme
court.
(2) the supreme court shall as heretofore, for the purposes
of the ordinance, be deemed a court of probate and shall
be a court of record, and shall have the same powers, and
its grants and orders shall have the same effect, in this
colony, and in relation to the estates in this colony of
deceased person, as the sureme court and its grants and
orders respectively now have or hitherto have had in relation
to matters and causes testamentary and estates of deceased
persons within the jurisdiction of the supreme court, and
all duties which are or have been imposed on or should be
performed by the supreme court in respect of probates,
administrations, and matters and causes testamentary shall
be performed by the supreme court under the probate
jurisdiction hereby continued: provided that no suits for
legacies, or suits for he distributio of residues, shall be
entertained by the supreme court in its probate jurisdiction.
4. the judge shall have and may exercise full power of
altering and amending any grant of probate or of administra-
tion, whether made before or after the commencement of this
ordinance.
5. no officer or clerk of hte court shall, during the time
of his holding such office, directly or indirectly practise as a
barrister or solicitor, or receiver or participate in the fees of
any other person so practising.
6. all probates, administrations, orders and other instru-
ments, and all exemplifications and copies thereof, shall
respectively be sealed with the seal of the supreme court,
and any such document purporting to be so sealed shall be
received in evidence, in any cause or proceeding of whatever
kind, without further proof thereof.
7.(1) the court may require the attendance of any
party in person, or of any person whom it may think fit to
examine or cause to be examined, in any action or other
proceeding in respect of matters or causes testamentary, and
may examine or cause to be examined upon oathe paries and
withnesses bny word of mouthe, and may, either before or after
or with or without such examination, cause them or any of
them to be examined upon interrogatories or receive their or
any of their affidavits.
(2) the court may by writ require the attendance of
any such party or witness, and order to be produced before
itself or otherwise any deeds, evidences, or writings, in the
same from, as nearly as may be, as that in which a writ of
subpoena ad testificandum or of subpoena duces tecum is now
issued by the supreme court in its original jurisdiction.
8. the court shall have the like powers, jurisdiction, and
authority for enforcing the attendance of persons required
by it as aforesaid, and for punishing persons failing,
neglecting, or refusing to produce deeds, evidences, or
writings, or refusing to appear, or to be sworn, or to give
evidence, or guilty of contempt, and generally for enforcing
all orders, decrees, and judgments made or given by the
court under this ordinance and owtherwise in relation to the
matters to be inquired into and done by or under the orders
of the court under this ordinance as are for the time being
vested by law in the supreme court for such purposes in
relation to any action or matter depending in the said court
in its original jurisdiction.
9.(1) the court may, on motion or petition or otherwise,
in a summary way, whether any action or other proceeding
is or is not pending in the court with respect to any
probate or administrartion, order any person to produce and
bring into the registry of the court, or otherwise as the court
may direct, any paper or writing being or purporting to be
testamentary which may be shown to be in the possession or
under the control of such person.,
(2) if it is not shown that any such paper or writing is in
the possession or under the control of such person, but it
appears that there are reasonable grounds for believing that
he has knowledge of any such paper or writing, the court
as amedned by law am ord 1923
may direct such person to attend for the purpose of being
examined in open court or upon interrogatories respecting
the same, and such preson shall be bound to answer such
questions or interrogatories, and , if so ordered, to produce
and bring in such paper or writing, and shall be subject to
the like process of contempt in case of default in not attending
or in not answering such questions or interrogatories, or not
bringing in such paper or writing, as he would have been
subject to in case he had been a party to an action in the
court and had made such default.
10.(1) the registrart of the supreme court, any any
other person whom the chief justice may, under the seal
of the supreme court, appoint for that prupose shall
respectively have full power to administer oaths and to
perform such other duties in reference to matters and causes
testamentary as may be assigned to them by any rules and
orders made under this ordinance.
(2) every commissioner for taking oaths in the supreme
court in its original jurisdiction shall be a commissioner for
taking oaths in the court.
part II
the official administrator.
11.(1) the registrar of the supreme court shall be ex
officio official administrator under this ordinance.
(2) in all cases the official administrator shall be subject
ot the immediate control and act under the direction of the
court.
12. a grant of administration to the official administrator,
whether the name of the grnatee, the officer holding
the appointment at the time of the grant, is or is not
mentioned therein, shall be deemed to have been made and
to be made, as the case may be, to him and his successors in
office.
13. all property vested in the official administrator for
the time being by virtue of any grant of administration made
to him or any predecessor in officer or otherwise shall, on his
vacating or ohterwise ceasing to hold the office, be deemed
to be vested in his successor without any further transfer or
convoyance.
14.(1) is shall be lawful for ;the officail administrator,
whenever he thinks it expedient to do so and upon such
evidence of death as he deems sufficient, to receive or take
possesion of the private papers, moneys, goods, chattels, and
other movable property whatsoever of any deceased person
which may be found within the colony, and to provide for
the safe custody thereof, until probate of the will of such
granted by the court: porvided always that the official
administrator may, in lieu thereof, if he thinks fit, issue
forthwith a commission of appraisement of all or any of such
property.
(2) in case of the deathe of any citized of the united states
of america in the colony, without having in the colony any
known heirs or testamentary executors appointed by him, the
official administrator shall at once inform the nearest
consular officer of the said united states of the fact, in order
that the necessary information may be immediately forwarded
to persons interested. the said consular officer shall have
the right to appear , either personally or by delegate, in all
proceedings on behalf of the absent heirs or creditors until
they are otherwiser represented.
15. every person who, without lawful authority or excuse
in that behalf,
(1) removes or attempts to remove out of the colony any
such property as is mentioned in section 14; or
(2) destroys, conceals, or refuses to yield up any such
property on demand to the official administator,
shall upon summary conviction be liable to a line not exceed-
ing five hundred dollarsd, and to imprisonment, without hard
labour, for any term not exceeding six months.
16. the official administrator shall have a lien, upon all
property mentioned in section 14 for the reasonable expenses
incurred by him in respect thereof in carrying out the provi-
sions fo the said section, and such expenses shall also
constitute a primary charge ont he estate of the deceased
person.
as amended b;y law rev. ord., 1923
17.(1) when an7y person dies leaving a will within the
colony, the person in whose keeping such will has been
deposited, or who finds usch will after the testator's death,
shall produce, and , if required, shall deliver, the same to the
official administrator within fourteen days after the death
of the testator, or fromt he time when he has had notice
thereof, or from the time of the finding of the will, as the
case may be,
(2) every person who refuses or neglects to comply with
the requirements of this section shall upon summary convic-
tion be liable to a fine not exceeding five hundred dollars,
18. fron and after the decease of any person dying
intestate and until administration is granted in respect of his
estate, the estate of such deceased person shall be vested in
the official administrator.
19. when the whole estate of any person dying intestate
in the colony does not, in the opinion of the official
administrator, exceedin value the sum of two hundred and
fifty dollars, it shall be lawful for the official administrator,
if he thinks fit, without any legal formality, to receive or
take possesio of such estate and to administer the same in
a summary manner for the benefit of all persons interested
therein.
20. (1) ;on aplication made by the offical administrator,
the court shll, unlessit sees good reason to the contrary,
grant to him administration in any of the follwing cases:-
(a) where a person dying intestate, whether in this colony
or else where, has left property situate in the colony and
no next of kin of such person are resident in the colony:
(b) where a person dying intestate, whether in this colony
or elsewhere, has left property situate in the colony and the
next of kin of such person who are resident in the colony file
in the registry of the court a request for or consent to the
making of such grant, in writing signed by them:
(c) where a person dying intestate, whether in this colony
or elsewhere, has left property situate in the colony and no
person has, within twelve months after the death of such
perosn, obtained administration of his estate; and
as amended by no. 16 of 1915
as amended by law am ord., 1923..
(d)where a person dying intestate, whether in this colony
or eslewhere, has left property situate in the colony and the
next of kin of such person who are resident in the colony
are infants uner the age of twenty-one years.
(2) the provisions of this section shall apply, with the
necessary modifications, in the case of a person who dies
testate, whether in this colony or elsewhere, but without
appointing an executor, or whose executor, if appointed
drefuses, neglects, or is unable to act.
21. nothing in this ordinance shall be construed to enable
or require the official administrator to obtaine administration
of the estate of any person dying in the naval or military
SERVICE OF HIS MAJESTY AND SUBJECT TO the articles of war, or
of any deceased seaman or apprentice for the adminstration
of whose estate provision is made by any act of parliament.
or of any person for the administration of whose estate
special porvision is otherwise made in part V.
22. any grant made to the official administrator under
this ordinance may be limited in respect of time or in any
other respect as to the court may seem fit.
23. subject to the special direction of the court to the
contrary in any particular case, the official administrator
shall bring the administration of every estate of which he
has obtained administration to a close within the period
fixed by law for that purpose in the case of an ordinary
administrator.
24. a commission at the rate of five per cent, shall be
chargeable on the gross value of all property of whatsoever
nature received or taken possession of, or realized or other-
wise dealt with, by the official administrator under this
ordinance.
25. the provisions of the unclaimed balances ordinance,
1885, in relation to unclaimed balances of the estates of per-
sons dying intestate, shall mutat is mutandis apply to moneys
received or taken possession of by the official administrator
uner section 14 or section 19 of this ordinance : provided
as amended by no. 16 of 1915.
that the periods mentioned in the said provisions shall in
respect of such moneys be computed from the dates on
which they were respectively received or taken possession of.
26.(1) the official administrator shall keep a general
register of all estates under his administration, a cash books
and a ledger or account current book, and such other books
as he may find necessary or may be prescribed.
(2) he shall enter in books, to be kept by him for that
purpose, separeate and distinct accounts of each estate and
of all property of every description which may come to his
hands, and also of all payments made by him on account
of each estate, specifying the dates of such receipts and
payments respectively.
(3) each book shall be kept in the registry of the court,
and shall be open during office hours for the inspection of
any person who has occasion to inspect the same, on pay-
mnet of the prescribed fee.
27.(1) the official administrator shall give to any
person who applies for the same copies of all documents and
accounts in his possesssion relating to any estate under his
administration or to any property which he receives or of
which he takes possession under this ordinance, on pay-
ment of the prescribed fees.
(2) if any such copy is refused, the applicant may petition
the court in a summary way for an order on the official
administrator to give such copy; and the costs of any such
petition and order shall be paid by the official adminis-
trator, if the court so directs.
28. the official administrator shall, on the expiration of
each half-year, make out and furnish to the chief justice
and to the colonial secretary a return, according to the form
in the first shcedule, of all estates vested in or administered
by him during the half-year then expired, and he shall pay
into the hands of the treasurer the balance remaining in
respect of each such estate immediately after the same has
been closed.
as amended by law am ord, 1923.
29. no action shall be brought against the official
administrator for anything done by him in respect of the
execution or the intended execution of any power vested in
him by section 14 or section 19, but any person who feels
aggrieved thereby may apply for redress to the court by
summary petition verified upon oath, and the court may
thereupon take such evidence as it thinks fit, and may make
any order in relation to the matter which the justice of the
case requires.
PART III
GRANTING AND REVOCATION OF PROBATES, ETC
caveat
30.(1) a cavest against the grant of any probate or
administration may be lodged in the registry of the court.
(2) subject to any rules or orders made under this
ordinance, the practice and procedure of the court in respect
of any such caveat shall, as nearly as may be, correspond
with the practice and procedure hitherto in use in respect
of such caveats.
executorship
31. where any person renounces probate of the will of
which he is appointed executor or one of the executors, the
right of such person in respect of the executorship shall
wholly cease, and the representation of the testator and the
administration of his estate shall and may, without any
further renunciation, go, devolve, adn be committed in like
manner as if such person had not been appointed executor,
32. whenever and executor appointed in a will survives
the testator but dies without having taken probate, or,
having been cited to take probate, does not appear to such
citation, the right of such person in respect of the executor-
ship shall wholly cease, and the representation of the testator
and the administration of his estate shall go, devolve, and be
committed in like manner as if such person had not been
appointed executor.
administration
33. where a person dies wholly intestate as to his personal
estate or leaving a will affecting personal estate but without
having appointed an executor thereof willing and competent
to take probtae, or where the executor is, at the time of the
death of such perosn, resident out of the colony, or where it
appears to the court to be necessary or convenient to appoint
some person to tbe the administrator of the estate of the
deceased person or of any part of such estate, other than the
person who, if this ordinance had not been passed, would
by law have been entitled to a grant of administration of
such personal estate, it shall be lawful for the court, in its
discretion, to appoint such person as the court thinks fit to
be such administrator, on his giving such security, if any, as
the court may direct, and every such administration may be
limited in such manner as the court thinks fit.
34.(1) at the expiration of twelve months from the
death of any deceased person, if the executor or execurtors to
whom probate of the will has been granted, or the person or
persons to whom administration has been granted, is or
are residing out fo the jurisdiction of the court, it shall be
lawful for the court, on the application of any creditor, next
of kin, or legatee, grounded on an affidavit made for that
purpose, to grant such special administration as it may think
fit of the estate of such deceased person.
(2) if shall be lawful for the court, on application made
for that purpose by any person interested, to direct any shares
or stock in any joint-stock company to be transfetted into
the name of the registrar of the court, in trust for such
purposes as the court may direct, in any action in which the
person to whom such special administration has been granted
is a party: porvided, nevertheless, that if any executor or
administrator of such deceased person, being capbale of
acting as such, returns to and resides within the jurisdiciton
of the court, the court may, if it thinks fit, revoke such
special grant: provided, also, that if any actio is pending
in any court in relation to the estate of such deceased person,
such executor or administrator shall be entitled to be made
a praty htereto.
as amended by law am ord., 1923.
35. The costs incurred by granting any such special
administration shall be paid by such person or out of such
found as the court may direct, and the costs incurred by
porceeding in any action against any such administrator
shall be paid by such person or out of such fund as the court
in which the action is pending may direct.
36.(1) where an infant is sole executor of any deceased
person, administration with the will annexed shall be granted
to the guardian of such infant, or to such other person as the
court may think fit, until such infant has attained the full age
of twenty-one years, at which period, and not before, probate
of the will shall be granted to him,
(2) the person to whom such administration is granted
shall have the same powers vested in him as an adminis-
trator now has by virtue of an administration granted to him
durante minor oetate of the next of kin.
37. after any grant of administration, no person shall
have power to sue or prosecute any action, or otherwise to
act as executor of the deceased person, as to the personal
estate comprosed in or affected by such grant of administration,
until such administration has been recalled or revoked.
administration pendente lite.
38.(1) pending any action touching the validity of the
will of any deceased person, or for obtaining, recalling, or
revoking any probate or any grant of administration, the
court may appoint an administrator of the estate of such
deceased person.
(2) the administrator so appointed shall have all the
rights and powers of a general administrator, other than the
right of distributing the residue of such estate.
(3) every such administrator shall be subject to the
immediate control of the court and act under its direction.
39. all the provisions of section 38 relating to grants of
administration pending action shall be deemed to apply to
the case of an appeal to his majesty in council from any
decision of the court.
As amended by Law Rev. Ord., 1923.
administration bond
40. every person (other than the official administrator)
to whom any grant of administration is committed shall,
unless the court otherwise directs, give a bond, with (if the
court requires) one or more surety or sureties, conditioned
for duly collecting, getting in, and administering the estate
of the deceased person, and the bond shall be in such form
as the judge may direct: provided that it shall not be
necessary for the captain superintendent of police, when
applying for or obtaining administration of the estate of a
person dying whilst employed in the police force, as herein-
after provided, to give any such bond as aforesaid.
41. every such bond shall be in a penalty of double the
amount under which the estate of the deceased person is
sworn, unless the court in any case thinks fit to direct the
same to be reduced, in which case it shall be lawful for the
bonds than one shall be given so as to limit the liability of
any surety to such amount as the court thinks reasonable.
revocation of grant
42. when any probate or administration is revoked, all
payments bona fide made to any executor or administrator
under such probte or administration before the revocation
thereof shall be a legal discharge to the person making the
same, and the executor or administrator who has acted under
any such revoked probate or administration may retain and
reimburse himself in respect of any payments made by him
which the person to whom probate or administration is after-
wards granted might have lawfully made.
43. all persons making or permitting to be made any
payment or transfer bona fide upon any probate or adminis-
tration granted in respect of the estate of any deceased
person shall be indemnified and protected in so doing,
notwithstanding any defect or ohter thing whatsoever affect-
ing the validity of such probate or administration.
44. where, before the revocation of any temporary
administration, any proceedings have been commenced in
the supreme court in its original jurisdiction by or against
any administrator so appointedd, the court in its probate
jurisdiction may order that a suggestion be made upon the
record of the revocation of such administration, and of the
grant of probate or administration which has been made
consequent thereupon, and that the proceedings shall be
continued in the name of the new executor or administrator
in like manner as if the proceedings had been originally
commenced by or against such nes executor or administra-
tor, but subject to such conditions and variations, if any, as
the court may direct.
practice
45. the practice of the court shall, except where other-
wise provided by this ordinance or by the rules or orders
made thereunder, be, so far as the circumstances of the
case will admit, according to the practice hitherto prevailing
in the same.
46. it shall be lawful for the judge to sit in chambers for
the despatch of such business of the court as can, in the
opinion of the judge, with advantage to the suitors be heard
in chambers; and the times at which such sittings shall be
held shall be fixed by the judge: provided that no matter
shall be heard in chambers which either party requires to
be heard in court.
47. the judge, when so sitting in chambers, shall have
and exercise the same power and jurisdiction in respect of
any business brought before him as if he were sitting in
court.
48. the court shall have the same powers with regard to
the sosts of any action or ohter proceeding as the supreme
court has with regard to costs in actions and other proceed-
ings in its original jurisdiction.
evidence
49.(1) subject to any rules or orders made uner this
ordinance, the withnesses, and where necessary the parties, in
all contentious matters where their attendance can be had
shalll be examined orally by or before the judge in court;
provided that, subject to any such rules or orders as aforesaid,
the parties shall be at liberty ot verify their respective cases.
in whole or in part, by affidavit, but so that the deponent in
every such affidavit shall, on the application of the opposite
party, be subject to be cross-examined by or on behalf of such
opposite party orally in court as aforesaid, and after such
cross-examination may be re-esamined orally in court as
aforesaid by or on behalf of the party by whom such affidavit
was filed.
(2) provided that when a witness in any such matter is
out of the jurisdiction of the court, or when, by reason of his
illness or otherwise, the court does not think fit to enforec
his attendance incourt, it shall be lawful for the court to
order a commission to issue for his examination upon
interrogatories or otherwise, or , if the witness is within the
jurisdition of the court, to order his examination, upon
interrogatories or otherwise, before any officer of the court
or other person named for that purpose in the order.
50. an affidavit sworn out of the colony in the manner
mentioned in any ordinance relating to evidence may be
used in any action or proceeding in the court.
51. the rules of evidence observed in teh supreme court
inits original jurisdiction shall be applicable to and be
observed in the trial of all questions of fact in the court.
trail of question of fact by jury
52. on the application of any party to any actionor
proceeding incourt of of its own motion, it shall be lawful
for the court to cause any question of fact arising insuch
action or proceeding to be tried by a special or commonjury.
53.(1) when the court orders a question of fact to be
tried by a jury, the court may make all such rules and orders
for procuring the attendance of a special or common jury
for the trial of such question as may now be made by the
supreme court in its original jurisdiction, and may also make
any other orders which to the court may seem requisite.
(2) every such jury shall be struck, summoned, balloted
for, and called in like manner as if such jury were a jury
for the trial of any cause in the supreme court; and every
juryman so summoned shall be entitled to the same rights,
and subject to the same duties and liabilities, as if he had
been duly summoned for the trial of any such cause in the
supreme court; and every party to any such proceeding
shall be entitled to the same rights as to challenge and
otherwise as if he were a party to any such cause.
(3) generally, for all purposes of or auxiliary to the trial
of quesitons of fact by a jury before the court, and in respect
of new trials thereof, and anso for all purposes in relation to
or consequential upon the direction of issues, the court shall
have the same jurisdiciton, powers, and authority in all
respects as belong to the supreme court for the like purposes.
54.(1) when the court orders a question of fact to be
tried by a jury, the question shall be reduced into writing in
such form as the court may direct, and at the trial the jury
shall be empanelled to try the question and a true verdict to
give thereon according to the evidence.
(2) on every such trial, the court shall have the same
jurisdiction, powers, and authority in all respects as belong
to a judge of the supreme court sitting in its original
jurisdiction.
calendars of grants
55.(1) the judge shall cause to be made in the registry
of the court and to be printed calendars fo the grants of
probate and administration therein for such periods as the
judge may think fit.
(2) every such calendar shall contain a note of every
probate, or administration with the will annexed, or
administration granted within the period there specificed.
(3) every such note shall set forth the date of teh grant,
the name of the testator or intestate, the place and time of
death, the names and descirptions of the executors or
administrators, and the value of the effects as sert forth in
any commission of appraisement or otherwise.
56. the registrar of the court shall cause a copy of every
such calendar to be transmitted to the governor, to the
principal registry of the probate division of the high court
of juustice in england, to the sheriff court of the country of
edinburgh in soctland, to the principal registry of the
probate division of the high court of justice in ireland,
and to such other officers, if any, as teh judge may direct.
as amended by law am ord., 1923
PART IV
RULES FOR ADMINISTRATION OF PROPERTY
57. in the administration of the estate of every deceased
person, no debt or liability of such person shall be entitled
to any priorty or preference by reason merely that the same
is secured by or asirs under a bond, deed, or ohter instru-
ment under seal, or is otherwise made or constituted a
specialty debt; but all the creditors of such person, as well
specialty as simple contract, shall be treated as standing in
equal degree, and be paid accordingly out of the assetsof
such deceased person, whether such assets are legal or
equitable : provided that this ordinance shall not prejudice
or affect any lien, charge, or other security which any
creditor may hold or be entitled to for the payment of his
debt.
58.(1) any executor or administrator may apply by
summary petition to the court for an order limiting the time
for creditors and others to send in theri claims against the
estate of the testator or intestate, and specifying what notices
are to be given of the making of such order and of the
time thereby limited; and the court may make such order
thereon as it thinks fit,
(2) where an executor or administrator has given the notices
specified in any such order, he shall, at the expiration of the
time limited thereby for sending in such claims, be at liberty
to distribute the assets of the testator or intestate, or any
part thereof, amongst the parties entitled thereto, having
regard to the claims of which he has then notice, and shall
not be liable for the assets, or any part thereof, so distributed
to any person of whose claim he has not had notice at the
time of distribution of the assets or a part thereof, as the
case may be.
(3) nothing in this section shall prejudice the right of any
creditor or claimant to follow the assets, or any part thereof,
into the hands of any persons who may have received the
same respectively.
59. it shall be lawful for the court to allow to any executor
or administrator, including an administrator appointed
pendent lite as aforesaid, such remuneration out of the estate
of the deceased person as may be just and reasonable for his
apins and trouble therein: provided that no allowance
whatever shall be made to any executor or administrator who
neglects to pass his accounts at such time, or to dispose of
any moneys, goods, chattels, or securities with which he is
chargeable in such manner, as in pursuance of any rule or
order or practice of the court, may be requisite.
60. whenever any person who is a native of china dies
intestate leaving property within the jurisdiction of the court,
and it necessary to obtain proof of the law of china for the
prupose of regulating the administration of the property of
such deceased person according to the law of his domicile, it
shall be lawful for the court, in its discretion, to receive in
evidence nay written statemnet of the law of china which is
certified by any british consular officer in china under his
official seal to have been obtained by him from an officer of
the chinese government for the purposes of such administra-
tion and with reference to the facts of the particular case
under consideration, and thereafter to act upon such written
statement in such manner as it thinks fit.
PART V
SPECIAL AND EXCERTED CASES
ESTATES OF SMALL VALUE
61.(1) where the whole estate of any person dying
intestate in the colony does not exceed in value the sum of
five hundred dollars, his widow or any one or more of his
childred, as the case may be., (provided such widow or child
or childred respectively is or are resident in the colony), or
if such person is a widow, any one or more of her children
(provided such child or children is or are resident in the
colony), may make application in that behalfo to the
registrar of the court, who shall fill up the usual papers
required by the court to lead to a grant of administration of
the estate of the intestate, and shall swear or declare the
applicant and attest the executionof the administration bond
required according to the practice of the court; and he
administration of the estate of the intestate and deliver them
tot he applicant, without payment of any fee, except as is
provided by this section.
as amended by law am ord., 1923.
(2) the registrar of the court may require such proof as
he may think sufficient to establish the identity and relation-
ship of the applicant.
(3) if the registrar of the court has reason to believe that
the whole estate of which the intestate died possessed
exceeds in value the sum of five hundred dollars, he shall
refuse to proceed with the application until he is satisfied
that such value does not exceed that amount.
(4) an applicant under this section shall not be required
by any table of fees framed under this ordinance to pay a
greater amount of fees than the amount applicable to the
case which is mentioned in the second schedule.
(5) nothing in this section shall be construed to affect any
duty for the time being payable by lwa on administrations.
SMALL SUMS PAYABLE BY PUBLIC DEPARTMENTS TO
DECEASED PERSONS.
62.(1) on the death of any person to whom any sum
of money not exceeding five hundred dollars is payable by
a public department within the colony in respect of civil
pay or allowances or annuities granted either under the
authority of his majesty's government or of the government
of teh colony, it shall be lawful for the treasurer, on being
satisfied of the expediency of dispensing with probate or
administration, to authorise the payment of such sum to
such person or persons as the treasurer may consider
entitled thereto, without requiring the production of probate
or administration.
(2) payment of all such sums of money shall be made
unser such regulations as the treasurer may, with the
approval of the governor, make for the purpose.
63. any payment made under the provisions of section 62
shall be valid against all persons whatever, and all
persons acting under the said provisions shall be absolutely
discharged fdrom all liability in respect of any moneys duly
paid or applied by them under the said provisions.
As amended by Law Rew. Ord., 1923.
ESTATES OF DECEASED MEMBERS OF POLICE FORCE
64.(1)any person employed in the police force under
the rank of inspector and dying whilst so employed shall
not be deemed to be within the meaning of the preceding
provisions of this ordinance; but the captain superintendent
of police is hereby constituted the official administrator of
his estate, and is required to get in and administer the same,
with the samction of the colonial secretary, and , within one
month after the death of any such person, to certify the
same and the amoujnt in value of the estate of such person,
by certificate under his hand, to the registrar of the court
for registry in the court; and he shall also pay over to the
treasurer the balance of every such estate, after payment of
all lawful claims against the same.
(2) it shall be lawful for the colonial secretary, on the
application of the captain superintendent of police, at any
time to sign an order uon the treasurer ofr the payment
of the whole or any part of such balance to such person or
persons as may appear to be entitled thereto, and the
treasurer shall comply with such order.
ESTATES OF PERSONS DYING ON COYAGES TO THE COLONY
65.(1) the following special provisions shall regulate
the administration of the estates of passengers who dies at
sea in the course of a vayage to the colony on board of any
vessel which afterwards arrives in teh colony;
(a) where any passenger has died on board of any vessel
in the course of a voyage to the colony, the master of the
vessel in which such passenger has died shall, immediately
upon the arrival of the vessel in the colony, hand over to
the harbour master all the goods and effects of such
passenger then on board of such vessel;
(b) thereupon teh harbour master shall take possession of
such goods and effects, and,
(i) if he thinks thak their valne is more than one hundred
dollars he shall forthwith hand them over to the Official
Administrator, to whom he shall also furnish in writing all
such information as he may have been able to obtain about
the deceased passenger and as he may consider likely to be
useful for the due administration of the estate and,
As amended by Law Am. Ord., 1923.
As amended by Law Rev. Ord., 1923, and Law, Am. Ord., 1923.
(ii) if he thinks that their value is not more than one
hundred dollars, he shall, in such manner as he may consider
just nad conveninet, distribute them amongst the persons
who may appear to him, in his discretion, to be entitled
thereto, or, if he can find no such persons within one month
of the time when the goods and effects came into his hands,
then he shall sell them and pay the proceeds of the sale into
the treasury to a special account to be there kept for that
purpose;
(c) at any time with twelve months of the time when
the proceeds of any estate have been paid into the treasury
under this section, any person entitled to the said proceeds,
or to any portion thereof, may apply to the harbour master
for the same, and , at the expiration of the siad twelve months,
the harbour master may make application in that behalf to
the treasureer, and the treasurer shall pay to the harbour
master the said proceeds or a portion thereof, and the
harbour master shall distribute the same amongst the
applicants in such manner as he may consider just and
convenient;
(d) before distributing any estate or paying the proceeds
of any estate into the treasury under this section, the
harbour master shall deduct the amount of any expenses or
costs which he may have incurred in advertising or other-
wise in the administration of the same; and
(e) if no person entitled applies to the harbour master
under paragraph (c) within the twelve months mentioned
in that paragraph, the proceeds of the estate shall be paid
over to the general revenue; but it shall be lawful for the
governor, within a period of six years thereafter, to direct a
refund of the same, or any portion thereof, to any person
who establishes, to his satisfaction, a legal, equitable, or
moral claim thereto.
(2) for the purposes of this section, voyage of a passenger
to the colony means the voyage of a passenger which
would in the ordinary course terminate in the colony as the
port of destination of the passenger.
(3) every master of a vessel who refuses or neglects to
comply with the requirements of this section, shall upon
summary conviction be liable to a fine not exceeding one
hundred dollars.
PART VI
BRITISH AND COLONIAL PROBATES
BRITISH PROBATES
66. In the provisions of this part relating to british
probates-
(a) court of probate means any court or authority, by
whatever name designated, having jurisdiction in matters of
probate.
(b) probate and administration include confirmation
in scotland.
it is hereby declared that all probates or letters of adminis-
tration granted by a court of probate in the united kingdom
and duly sealed with the seal of the supreme court under
the provisions of the united kingdom probates ordinance,
1892, shall notwithstanding anything in such ordinance
contained by and be deemed to have been as from the date
of such sealing of the like force and effect in this colony as
if the words and in scotland means the sheriff court of
the county of edinburgh had never been contained in
section 4 of that ordinance.
67.(1) where a court of probate in the united kingdom
has granted probate or administration in respect of the
estate of a deceased person, the probate or administration so
granted may, on being produced to and a copy thereof
deposited wiht the court, be sealed with the seal of the court,
and thereupon shall be of the like force and effect and have
the same operation in the colony as if granted by the court.
(2) provided that the court shall, before sealing a probate
or administration under this section , be satisfied.
(a) that probate duty or estate duty has been paid in
respect of so much, if any, of the estate as is liable to probate
duty or estate duty in the colony; and
no. 14 of 1892 was repealed by no. 3 of 1897; (old numbering) and section 4
became section 66 of no. 2 of 1897 (carringtion's numbering). then no. 1 of
1907 deleted the words and in scotland means the sheriff court of the country
of edinburgh from section 66 of the 1897 ordinance with effect from the
commencement thereof and also as seen above from the repealed 1892 ordinance
from its commencement.
as amended by no. 16 of 1915.
(b) in the case of administration, that security has been
given in a sum sufficient in amount to cover the property, if
any, in the colony to which the administration relates;
and the court may require such evidence, if any, as it thinks
fit as to the domicile of the deceased person.
(3) the court may also, if it thinks fit, on the application
of any creditor, require, before sealing, that adequate security
be given for the payment of debts due from the estate to
creditors residing in the colony.
(4) for the purposes of this section, a duplicate of any
probate or administration sealed with the seal of the court of
probate granting the same, or a copy thereof certified as
correct by or under the authority of such court, shall have
the same effect as the original
(5) all ordinances, enactments, and rules relating to
kprobate duty or estate duty, or to fees and costs in the court,
shall aply to applications for sealing under this section to
the same extent and in the same manner as if the person
who applies for such sealing were a person applying to the
court for probate or administration.
68. section s 66 and 67 shall apply to probates and
administrations granted in teh united kingdom either before
or after the communcement of this ordinance.
colonial probates.
69. in the provisions of this part relating to colonial
probates
(a) british court in a foreign country means any british
court having jurisdiction out of his majesty's dominions in
pursuance of an order in council, whether made under any
act of parliament or otherwise.
(b) court of probate means any court or authority, by
whatever name designeated, having jurisdiction in matters
of probate.
(c) probate and administration include any instru-
ment having, in a british possession, the same effect as,
under the law of this colony, is given to probate and
administration respectively.
(d) probate duty includes any stamp or other duty
payable on the value of the estate for which probate or
administration is granted.
as amended by law rev., ord., 1923.
70. The Governor in council may, on being satisfied that
the legislature of any British possession has made adequate
provision for the recognition in that possession of probates
and administratious granted by the court, direct by order
that the provisions of this Part relating to colonial probates
shall, subject to any exceptions and modifications specified
in the order, apply to that possession, and thereupon while
the order is in force, those provisions shall apply accordingly.
71.-(1) Where a court of probate in a British possession
to which the provisions of this Part relating to colonial
probates apply has granted probate or administration in
respect of the estate of a deceased person, the probate or
administration so granted may, on being produced to and a
copy thereof deposited with the court, be sealed with the
seal of the court, and thereupon shall be of the like force
and effect and have the same operation in the colony as if
granted by the court.
(2) Provided that the court shall, before sealing a probate
or administration under this section, be satisfied-
( a) that probate duty or estate duty has been paid in
respect of so much, if any, of the estate as liable to probate
duty or estate duty in the Colony; and,
(b) in the case of administration, that security has been
given in a sum sufficient in amount to cover the property, if
any, in the Colony to which the administration relates;
and the court may require such evidence, if any, as it thinks
fit as to the domicile of the deceased person.
(3), The court may also, lF it thinks fit, on the application
of any creditor, require, before sealing, that adequate security
be given for the payment of debts due from the estate to
creditors residing in the Colony.
(4) For the purposes of this section, a duplicate of any
probate or administration sealed with the seal of the court
of probate granting the same or a copy thereof certified as
correct by or under the authority of such court, shall have
the same effect as teh original.
for list of places to which by virtue of this section the provisions of part vi
relating to colonial probates have been applied see hodgson's regulations of
hongkong, 1914, p. 466-467, and g.n. 143 of 1916.
as amended by no. 16 of 1915.
(5) all ordinances, enactments, and rules of court relating
to probate duty, or to fees and costs in the court, shall apply
to applications for sealing under this section to the same
extent and in the same manner as if the person who applies
for such sealing were a person applying to the court for
probate or administration.
72. the provisions of this part relating to colonial pro-
bates shall apply to probates and administrations granted in
a british possession to which the ordinance is applied,
either before or after the commencement of this ordinance.
73. the provisions of this part relating to colonial probates
shall extend to authorise the sealing by the court of any
probate or administsration granted by a british court ina
foreign country in like manner as they authorise the sealing of
a probate or administration granted in a british possession to
which the said provisions apply, and the said provisions
shall apply accordingly, with the necessary modifications.
part vii
miscellaneous
74. the chief justice may make general rules and orders,
subject to the approval of the legislative council, for the
following purposes:
(a) fodr regulating the practice and procedure of the court,
and the several forms of petitions, orders and other proceed-
ings to be used in the court;
(b) for regulating the duties of the various officers of the
court;
(c) for regulating the fees to be taken by the officers of the
court and to be allowed to counsel and solicitors practising
in the court, and the fees, charges, and costs to be taken and
allowed with respect to all proceedings and all other matters
in the court;
(d) for regulating the filing, custody, and inspection of
records, and
(e) generally for the better carrying out of the provisions
of this ordinance.
see hodgson's regulations of hongkong, 1914 pp 467, 468
75. until such rules and orders have been made as
aforesaid, the court may direct, either generally or in any
particular case, that the rules and orders in relation to matters
of probate and administration in the probate division of the
high court of justice in england or any part thereof, and
the forms of proceedings in use therein or any of them, with
such modifications as the circumstances may require, shall
be followed and adopted in teh court.
76. an official copy of the whole or anypart of a will., or
an official certificate of the grant of any administration, may
be obtained from the registry of the court on the payment
of such fees as may be fixed for the same by the rules and
orders made under this ordinance.
77. all administrations heretofore granted to any
official administrator shall be deemed to have been made to
the official administrator for the time being and to his
successors in office: provided that no act heretofore done by
any person under any grant of administration made to him
as official administrator shall be deemed, to be affected or
rendered invalid on account of the passing of this ordinance.
[ss. 78 to 81, rep. no. 1 of 1912.]
first schedule
form of return of estates of intestates
return of estates of intestates for the half-year ending
(signed) a.b. official administrator
dated the day of 19
second schedule [s. 61.]
fees payable in respect of small estates
where the whole estate of the intestate does not exceed in value $100,
the sum of $1; and where the whole estate exceeds in value $100, the
sum of $1, and the further sum of 20 cents for every $50 or fraction of
$50 by which the value exceeds $100.
no. 3 of 1897, repealed by no. 5 of 1903.
[Originally No. 3 of 1897. No. 16 of 1913. Law Rev. Ord., 1924.] Short title. Interpretation. Ordinance No. 16 of 1915. General jurisdiction of the court in matters of probate and administration. 20 & 21 Vict, c. 77, s. 4. 20 & 21 Vict, c. 77, s. 23. Power of altering probate, etc., already granted. Prohibition of officer of the court practising. Sealing of documents. 20 & 21 Vict, c. 77, s. 22. Powers as to requiring attendance of and examining parties and witnesses. 20 & 21 Vict, c. 77, s. 24. General powers of enforcing process. 20 & 21 Vict, c. 77, s. 25. Power of ordering production of testamentary writings. 20 & 21 Vict, c. 77, s. 26. administration of oaths, etc. 20 & 21 Vict, c. 77, s. 27. Registrar to be Official Administrator. Effect of grant to Official Administrator. Re-vesting or property on vacation of office. Power to Official Administrator to take possession of property of deceased person until grant. Estates of Americans. Punishment of person unlawfully removing out of the Colony property of deceased person. Lien on property of deceased person for expenses incurred under s. 14. Person having or finding will to produce it. Vesting of estate of deceased person in Official Administrator. Power to administer estate of intestate, not exceeding $250, in summary manner. Cases in which Official Administrator is entitled to administration. Saving as to estates of certain persons. Power of limiting grant. Period for closing administration of estate. Commission on moneys received. Application of Ordinance No. 1 of 1885, to moneys received. Keeping of books of account. Copies of documents and accounts. Half-yearly returns. First Schedule. Redress against action of Official Administrator. Practice as to caveat against grant. 20 & 21 Vict, c. 77, s. 53. Effect of executor renouncing probate. 20 & 21 Vict, c. 77, s. 79. Effect of executor not taking probate. 21 & 22 Vict, c. 95, s. 16. Appointment of administrator of intestate's estate. 20 & 21 Vict, c. 77, s. 73. Grant of special administration where executor or administrator is out of jurisdiction. Payment of costs relating to special administration. Case of infant being sole executor. 38 Geo. 3, c. 87, s. 6. 38 Geo. 3, c. 87, s. 7. Prohibition of executor acting pending administration. 20 & 21 Vict, c. 77, s. 75. Appointment of administrator pendente lite. 20 & 21 Vict, c. 77, s. 70. Administration pending appeal. Bond to be given by administrator. 20 & 21 Vict, c. 77, s. 81. Amount of bond. 20 & 21 Vict, c. 77, s. 82. Validation of payments made under probate or administration subsequently revoked. 20 & 21 Vict, c. 77, s. 77. Validation of payments made under defective probate or administration. 20 & 21 Vict, c. 77, s. 78. Continuance of proceedings begun under temporary administration subsequently revoked. 20 & 21 Vict, c. 77, s. 76. Practice in matters not provided for. 20 & 21 Vict, c. 77, s. 79. Sittings in chambers. 20 & 21 Vict, c. 95, s. 3. Powers of judge sitting in chambers. Powers of the court with regard to costs. Examination or parties and witnesses. 20 & 21 Vict, c. 77, s. 31. Use of affidavit sworn out of the Colony. [cf. No. 2 of 1889.] Rules of evidence. 20 & 21 Vict, c. 77, s. 33. Power to order question of fact to be tried by special or common jury. 20 & 21 Vict, c. 77, s. 35. Procedure and powers on trial of question of fact by jury. 20 & 21 Vict, c. 77, s. 36. [cf. No. 6 of 1887.] Form of question of fact to be tried, etc. 20 & 21 Vict, c. 77, s. 37. Making and particulars of calendars of grants. 20 & 21 Vict, c. 77, s. 67. Distribution of calendars. 20 & 21 Vict, c. 77, s. 68. Specialty and simple contract debts to stand in equal degree. 32 & 33 Vict, c. 46, s. 1. Power to the court to make an order limiting time for creditors to send in claims against estate. 32 & 33 Vict, c. 35, s. 29. Allowance of remuneration to executor or administrator. Proof of Chinese law as to administration of property of deceased person. Summary procedure for administration of estate of person dying intestate under $500 in value. Second Schedule. Power of Treasurer where sum not exceeding $500 is payable by public department to deceased person. Validity of payment made under s. 62. Administration of estate of deceased subordinate member of police force. Administration of estate of passenger dying on voyage to the Colony. [s. 65 contd.] 55 & 56 Vict, c. 6. Interpretation of terms relating to British probates. Validation of probates, etc., sealed under Ordinance No. 14 of 1892. Sealing of probate or administration granted in the United Kingdom, and effect thereof. Application of ss. 66 & 67. Interpretation of terms relating to colonial probates. Power to apply provisions relating to colonial probates to British possession. Sealing of probate or administration granted in British possession, and effect thereof. Application of provisions relating to colonial probates. Extension of provisions to probate, etc., granted by British court in foreign country. General rules and orders relating to practice, duties of officers, fees, and records, 20 & 21 Vict, c. 77, s. 30. Application of rules and orders of Probate Division of High Court in England. Copy of will, etc. 20 & 21 Vict, c. 77, s. 69. Continuance to successors in office of grants of administration made to Official Administrator.
Abstract
[Originally No. 3 of 1897. No. 16 of 1913. Law Rev. Ord., 1924.] Short title. Interpretation. Ordinance No. 16 of 1915. General jurisdiction of the court in matters of probate and administration. 20 & 21 Vict, c. 77, s. 4. 20 & 21 Vict, c. 77, s. 23. Power of altering probate, etc., already granted. Prohibition of officer of the court practising. Sealing of documents. 20 & 21 Vict, c. 77, s. 22. Powers as to requiring attendance of and examining parties and witnesses. 20 & 21 Vict, c. 77, s. 24. General powers of enforcing process. 20 & 21 Vict, c. 77, s. 25. Power of ordering production of testamentary writings. 20 & 21 Vict, c. 77, s. 26. administration of oaths, etc. 20 & 21 Vict, c. 77, s. 27. Registrar to be Official Administrator. Effect of grant to Official Administrator. Re-vesting or property on vacation of office. Power to Official Administrator to take possession of property of deceased person until grant. Estates of Americans. Punishment of person unlawfully removing out of the Colony property of deceased person. Lien on property of deceased person for expenses incurred under s. 14. Person having or finding will to produce it. Vesting of estate of deceased person in Official Administrator. Power to administer estate of intestate, not exceeding $250, in summary manner. Cases in which Official Administrator is entitled to administration. Saving as to estates of certain persons. Power of limiting grant. Period for closing administration of estate. Commission on moneys received. Application of Ordinance No. 1 of 1885, to moneys received. Keeping of books of account. Copies of documents and accounts. Half-yearly returns. First Schedule. Redress against action of Official Administrator. Practice as to caveat against grant. 20 & 21 Vict, c. 77, s. 53. Effect of executor renouncing probate. 20 & 21 Vict, c. 77, s. 79. Effect of executor not taking probate. 21 & 22 Vict, c. 95, s. 16. Appointment of administrator of intestate's estate. 20 & 21 Vict, c. 77, s. 73. Grant of special administration where executor or administrator is out of jurisdiction. Payment of costs relating to special administration. Case of infant being sole executor. 38 Geo. 3, c. 87, s. 6. 38 Geo. 3, c. 87, s. 7. Prohibition of executor acting pending administration. 20 & 21 Vict, c. 77, s. 75. Appointment of administrator pendente lite. 20 & 21 Vict, c. 77, s. 70. Administration pending appeal. Bond to be given by administrator. 20 & 21 Vict, c. 77, s. 81. Amount of bond. 20 & 21 Vict, c. 77, s. 82. Validation of payments made under probate or administration subsequently revoked. 20 & 21 Vict, c. 77, s. 77. Validation of payments made under defective probate or administration. 20 & 21 Vict, c. 77, s. 78. Continuance of proceedings begun under temporary administration subsequently revoked. 20 & 21 Vict, c. 77, s. 76. Practice in matters not provided for. 20 & 21 Vict, c. 77, s. 79. Sittings in chambers. 20 & 21 Vict, c. 95, s. 3. Powers of judge sitting in chambers. Powers of the court with regard to costs. Examination or parties and witnesses. 20 & 21 Vict, c. 77, s. 31. Use of affidavit sworn out of the Colony. [cf. No. 2 of 1889.] Rules of evidence. 20 & 21 Vict, c. 77, s. 33. Power to order question of fact to be tried by special or common jury. 20 & 21 Vict, c. 77, s. 35. Procedure and powers on trial of question of fact by jury. 20 & 21 Vict, c. 77, s. 36. [cf. No. 6 of 1887.] Form of question of fact to be tried, etc. 20 & 21 Vict, c. 77, s. 37. Making and particulars of calendars of grants. 20 & 21 Vict, c. 77, s. 67. Distribution of calendars. 20 & 21 Vict, c. 77, s. 68. Specialty and simple contract debts to stand in equal degree. 32 & 33 Vict, c. 46, s. 1. Power to the court to make an order limiting time for creditors to send in claims against estate. 32 & 33 Vict, c. 35, s. 29. Allowance of remuneration to executor or administrator. Proof of Chinese law as to administration of property of deceased person. Summary procedure for administration of estate of person dying intestate under $500 in value. Second Schedule. Power of Treasurer where sum not exceeding $500 is payable by public department to deceased person. Validity of payment made under s. 62. Administration of estate of deceased subordinate member of police force. Administration of estate of passenger dying on voyage to the Colony. [s. 65 contd.] 55 & 56 Vict, c. 6. Interpretation of terms relating to British probates. Validation of probates, etc., sealed under Ordinance No. 14 of 1892. Sealing of probate or administration granted in the United Kingdom, and effect thereof. Application of ss. 66 & 67. Interpretation of terms relating to colonial probates. Power to apply provisions relating to colonial probates to British possession. Sealing of probate or administration granted in British possession, and effect thereof. Application of provisions relating to colonial probates. Extension of provisions to probate, etc., granted by British court in foreign country. General rules and orders relating to practice, duties of officers, fees, and records, 20 & 21 Vict, c. 77, s. 30. Application of rules and orders of Probate Division of High Court in England. Copy of will, etc. 20 & 21 Vict, c. 77, s. 69. Continuance to successors in office of grants of administration made to Official Administrator.
Identifier
https://oelawhk.lib.hku.hk/items/show/1171
Edition
1923
Volume
v2
Subsequent Cap No.
10
Cap / Ordinance No.
No. 2 of 1897
Number of Pages
25
Files
Collection
Historical Laws of Hong Kong Online
Citation
“PROBATES ORDINANCE, 1897,” Historical Laws of Hong Kong Online, accessed April 6, 2025, https://oelawhk.lib.hku.hk/items/show/1171.
