PROBATES ORDINANCE, 1897

PROBATES ORDINANCE, 1897

No. 2 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 the Probates Ordinance,
1897.

2. In this Ordinance,

(a) ' Administration ' comprehends all letters of adminis-
tration of the estates of deceased persons, whether with or with-





out a will annexe& and whether granted for general, special,
or limited purposes;

(b) ' The court ' means 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 d uty under the Estate
Duty Ordinance, 1932

(e) ' Matters and causes testamentary ' comprehend all
matters and causes relating to the granting and revocation of
probate of wills and of administration

Next of kin ' includes persons entitled in their own
right to property passing on the death of any person.

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 testa-
mentary, 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 this 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 persons,
as the Supreme 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 juris-
diction 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 the distribution 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 the court shall, during the time
of his holding such office, directly or indirectly practise as a
barrister or solicitor, or receive 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 respec-
tively 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 oath parties and witnesses by word
of mouth, 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 ,,vrit 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
form, as nearly as may be, as that in which a writ of subporna
ad testificand'Unt or of subpoena daces 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, add 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 Ordina ' nce
and othe-wise 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
administration, order any person to produce and bring.into the
Registry of the court, or otherwiseas 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 tinder 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 may
direct such person to attend for the purpose of being examined
in open court or upon interrogatories respecting the same, and
such person shall be bound to answer such questions or inter-
rogatories, 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.-(i) The Registrar of the Supreme Court, and iny
other person whom the Chief justice may, under* the seal of
the Supreme Court, appoint for that purpose shall respectively
have full power to administer naths and to perform such other
.duties in reference to matters and causes testamentary as may
he 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





~fficio Official Administrator underthis Ordinance.

(2) In all cases the Official Administrator shall he subject
to the immediate control and act under the direction of the
court.

(3) The Official Administrator may employ a soliGitor or
other agent to do any business which may be sanctioned by the
court.

(4) Applications by the Official Administrator to the court
may be made personally, and without notice or other formality;
but the court may in any case order that an application be
renewed in a formal manner, and that such notice thereof he
given to any person likely to be affected thereby as the court
may direct.

12. A grant of administration to the Officia 1 Administrator,
whether the narne of the grantee, the officer holding the appoint-
ment 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 office or otherwise shall, on -his
vacating or otherwise ceasing to hold the office, be deemed
to be vested in his successor without any further transfer or
conveyance.

14,(1) It shall be lawful for the Official Administrator,
when ever he thinks it expedient to do so and upon such evidence
of death as he deems sufficient, to receive or take possession 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 deceased -person or
administration of his estate has been granted by the court:
Provided always that the Official Administrator may, in lieu
thereof, if he thinks fit, issue forthwith- a commission of appraise-
ment of all or any of such property.

As amended by No. 14 of 1933 [23.6.331.
As amended by No. 21 of 1930,[5.12.,30].





(2) In case of the death of any citizen of the United States
of America in the Colony, 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 otherwise represented.

15. Every person who, without lawful authority or excuse
in that behalf-
(i) 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 Administrator,
shall upon summary conviction be liable to a fine not exceeding
five hundred dollafs, 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 hirn in respect thereof in carrying out the provisions
of the said section, and such expenses shall also constitute a
primary charge on the estate of the deceased person.

17.-(1) When any person dies leaving a will within the
Colony, the person in whose keeping such will has been
deposited, or who finds such 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 from the 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 conviction be
liable to a fine not exceeding five hundred dollars.

18. Where any person dies, whether in the Colony or else-
where, leaving estate in the Colony in respect of which he dies
intestate, such estate shall vest in the Official Administrator who

For inclusion of Porto Rico see G.N. 549 of 22.12.1916, and for position
of Hungarian subjects see Article 14 of the Treaty mentioned in G.N.
127 of 8.3.1929.
As amended by No. 14 of 1933 [23.6.331.





may, if he thinks fit, receive and take possession . of the same until
administration is granted in respect thereof,

19. Where the whole of such estate does not, in the opinion
of the Official Administrator, exceed in value the sum of two
hundred and fifty dollars, it shall be lawful for him, if he thinks
fit, without any legal formality, to get in and administer the
same in a summary manner, for the benefit of the persons he
may deem interested therein, without a grant or other legal
formality.

20.-(1) On application made by the Official Administrator,
the court shall, unless it sees good reason to the contrary, grant
to him administration in any of the following cases:-

(a) where a person dying intestate, whether in this Colony
or elsewhere, 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 person,
obtained administration of his estate; and

(d) 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 are
infants under the age of twentv-one vears.

(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 appoi' ted, refuses,
n
neglects, or is unable to act.

21. Nothing in this Ordinance shall be construed to enable
or require the Official Administrator to obtain administration

As amended by No. 14 of 1933 [23.6.33].
I As amended by Law Rev. Ord., 1937.





of the estate of any person -dying in the naval, military, or air services of His
Majesty and subject to the Articles of War, or of any deceased seaman or
apprentice for the administration of whose estate provision is made by any
Act of Parliament, or of any person for the administration of whose estate
special provision 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 5% on the first $1,000, 2 1/2% on the next
$4,000 and 1 % on the balance, or such lower rate or rates as the court may
approve on the application of the Official Administrator in the case of any
particular estate, shall be chargeable on the gross value of all property of
whatsoever nature received or taken possession of, or realized or otherwise
dealt with, by the Official Administrator under this Ordinance.

[s. 25, rep. No. 5 of 1929.]

26.-(1) The Official Administrator shall keep a general register of all
estates under his administration, a cash book, 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,.
separate 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 estatespecifying 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 payment of the prescribed fee.

AS amended by No. 14 of 1933 [23.6.33].





27.-(1) The Official Administrator shall give to any person who applies
for the same copies of all documents and accounts in his possession relating
to any estate under his administration or to any property which he receives
or of which he takes possession under this Ordinance, on payment 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
Administrator, 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. Schedule, 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.

29. No action shall be brought against the Official Adminis-
trator for anything done by him in respect of the execution or
the intended execution of any power vested in him by this
Ordinance, or for anything done by him in the exercise of his
office as administrator under any grant of letters of adminis-
tration made to him under this Ordinance, if it was done bond
fide; 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 caveat 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

* As amended by No. 14 of 1933 [23.6.33].





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, without any further
renunciation, go, devolve, and be committed in like manner as if such person
had not been appointed executor.

32. Whenever an 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
executorship 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 probate, or where the
executor is, at the.time of the death of such person, resident out of the
Colony, or where it appears to the court to be necessary or convenient to
appoint some person to be the administrator of the personal 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 may be required
under this Part or as the court may direct, and every such administration may
be limited in such manner as the court thinks fit.

341.-(1) At the expiration of twelve months from the death of any
deceased person, if the executor or executors to whom

As amended by No. 14 of 1933 123.6.331 and Law Rev. Ord., 1937.





probate of the will has been granted, or the person or persons
to whom administration has been granted, is or are residing out
of 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) It 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 transferred 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:
Provided, nevertheless, that if any executor or administrator of
such deceased person, being capable of acting as such, returns
to and resides within the jurisdiction of the court, the court
may, if it thinks fit, revoke such special grant: Provided, also,
that if any action 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 party thereto.

35. The costs incurred by granting any such special adminis-
tration shall be paid by such person or out of such fund as
the court may direct, and the costs incurred by proceeding 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 administrator
now has by virtue of,an administration granted to him durante
minore atate 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 com-
prised in or afected 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
per~on.

(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 im-
mediate 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.

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 per.5on, and the bond shall be in such form as the judge
may direct.

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 court to do so;
and the court may also. direct that more bonds than one shall
he given so as to limit the liability of any surety to such amount
as the court thinks reasonable.

For power of cotat to awign bond on breach ace 20 & 21 VicL c. 77, L 83.
As amended by No. 14 of 19M 123.6.33].





Revocation of grant.

42. When any probate or administration is revoked, all pay-
ments bond fide made to any executor or administrator under
such probate or administration before the revocation thereof
shall be a legal discharge to the person making the same, and
the executor or admin ' istrator who has acted under any such
revoked probate or administration may retain and re'burse
hlimself in respect of any payments made by him which the
person to whom probate or administration is afterwards granted
might have lawfully made.

43. All persons making or permitting to be made any pay-
ment or transfer bond fide upon any probate or administration
granted in respect of the estate of any deceased person shall
be indemnified and protected in so doing, notwithstanding any
defect or other thing whatsoever affecting the validity of such
probate or administration.

44. Where, before the.revocation of any temporary adminis-
tratio n, any proceedings have been commenced in the Supreme
Court,in its original jurisdiction by or against any administrator
so appointed, 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 adminis-
tration 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 new executor
or administrator, but subject to such conditions and variations,
if any, as the court may direct.

Practice.

45. The practice of the court shall, except where otherwise
provided by this Ordinance or by the rules or orders made there-
under, 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 hirn as if lie were sitting in court.

48. The court shall have the same powers with regard to
the costs of any action or other proceeding as the Supreme Court
has with regard to costs in actions and other proceedings in its
original jurisdiction.

Evidente.

49.-(1) Subject to any rules or orders made under this
Ordinance, the witnesses, and where necessary the parties, in
'all contentious matters where their attendance can be had shall
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 to 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-examina-
tion may he re-examined 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 enforce his
attendance in court, 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 jurisdiction of the
court, to.order his examination, upon interrogatories or other-
wise, before any officer of the court o'r other person narned for
that purpose in the order.

50. An affidavit sworn out of the Colony in the inanner
mentioned in any Ordinance relating to evidence may be used
in any action or proceeding in the court.





SI. The rules of evidence observed in the Supreme Court in,
its original jurisdiction shall be applicable to and be observed
in the trial of all questions of fact in the court.

Trial of question of fact by jury.

52. On the application of any party to any. action or pro-
ceeding in court or of its own motion, it shall be lawful for
the court to cause any question of fact arising in such action or
proceeding to be tried by a special or common jury.

53.-(1) When the court orders a question of fact to be
tried bv a jury, the court may make all such rules and orders
for pro~.tiring 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 svrnmoned 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.questions of fact by a jury before the court, and in respect of
new trials thereof, and also for all purposes in relation to or
consequential upon the direction of issues, the court shall have
the same jurisdiction, powers, and authority in all respects as
belong to the Supreme Court for the like purposes.

54.-(r) When the court orders a question of fact to be
tried by a iury, 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.





[ss. 55 and 56, rep. No. 14 Of 1933.]

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 priority or preference by reason merely that the same is
secured by or arises under a bond, deed, or other instrument
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 assets of 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 sum-
mary petition -to the court for an order limiting the time for
creditors and others to send in their 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 ef any persons who may have received the Saffic
respectively.





59. It shall be lawful for the court to, allow to any executor
or administrator, including an administrator appointed pendente
lite as aforesaid, (or to a person acting under a power of
attorney as attorney for an executor or administrator in the
matter of the scaling . of a probate or administration under Part
VI, or in the matter of the realization and administration of
an estate under a probate or administration so sealed) such
remuneration out of the estate of the deceased person as may
be just and reasonable for his pains and trouble therein:
Provided that no allowance whatever shall be made to any
executor or administrator or attdrney 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: Provided also, that no such
remuneration shall exceed 5%. on the first $1,000, 2 1/2% on the
next $4,ooo and 1 %, on the balance of the gross value of all
property of whatsoever nature administered.

60. Whenever any person who is a native of China dies
intestate leaving property within the jurisdiction of the court,
and it is necessary to obtain proof of the law of China for the
purpose 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
any written statement 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 administration 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 EXCEPTED CASES.

Estates of small value..

61.-(1) Where the whole estate in the Colony 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

* As amended by No. 14 of 1933 [23.6.33].





of his children, as the case may be, (provided 5uch widow or
child or children 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 behalf 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
execution of the administration bond required according to the
practice of the court; and he shall also in due course make out
and seal the letters of administeation of the estate of the intestate
and deliver them to.the applicant, without payment ~f any fee,
except as is provided by this section.

(2) The Registrar of the court may require such proof as
he may think sufficient to establish the identity and relationship
of the applicant.

(3) If the Registrar of the court has reason to believe that
the whole estate in the Colony 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.
(s) Nothing in this section shall be construed to affect any
duty for the time being payable by law on administrations.

Small sums payable by public depa7tments 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
Flis Majesty's Government or of the Government of the Colony,
it shall be lawful for the Treasurer, on being satisfied of the
expediency of dispensing with probate or administration, to
authorize the payment of such sum to such person or persons

As amended by No. 14 of 1933 [23.6.33].





as the Treasurer may consider entitled thereto, witho*ut requiring
the production of probate or administration.

(2) Payment of all such sums of money shall be made
under such regulations as the Treasurer may, with the approval
of the Governor, make for that purpose.

63. Any payment made tinder the provisions of section 6z
slialt be valid against all persons whatever, and all persons
acting under the said provisions shall be absolutely discharged
from all liability in respect of any moneys duly paid or applied
by them under the said provisions.

Estates of subordinate police and prisons officers.

64-(1) Any person employed in the police force, not above
the rank of sub-inspector, and any person employed in the
prisons department, not above the rank of principal warder, who
shall die whilst so employed, shall not be deemed to be within
th.e meaning of th e preceding provisions of this Ordinance.

(2) The Commissioner of Police and the Superintendent of
Prisons respectively are hereby constituted administrators of the
estates of such persons in their departments and. are required,
without any legal formality, to get in and administer the same,
and, within one month after the -death of any such person, -to
certify the same and the amount thereof to the Registrar of the
court for registration in the court, and to pay over to the
Treasurer the balance of every such estate, after payment of
all lawful claims against the, same.

(3) It shall be lawful for the Colonial Secretary, in his
discretion, on the application of ~the Commissioner of Police or
the Superintendent of Prisons, as the case may be, to sign an
order upon the Treasurer for the payment of the whole or any
part of such balance to such person or persons as may appear
to him to be entitled thereto, and the Treasurer shall comply with
such order.

Estates of Persons dying on Toyages to the Colony.

65.-(1) The following special provisions shall regulate the
administration of the estates of passengers who die at sea in

As amended by No. 14 of 193S [23.6.331t





the course of a voyage to the Colony on board of any vessel
which afterwards arrives in the Colony:-

(a) where any passenger has died on board of any vessel
in the course of a voyage to tile 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 the Harbour Master sh all take possession of
such goods and eflects, and-

(i) if he thinks that their value is more than one hundred
dollars he shall forthwith hand them over to the Official
Administrator, to N,,,liom lie sliall also furnish in writing all such
information as lie may have been able to obtain about the
deceased passenger and as he may consijer likely to be use'ful
for the due administration of the estate; and

( ii) if he thinks that their value is not more than one
hundred dollars, he sliall, in such manner as lie may consider
just and convenient, 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 carne into his hands, then he shall
sell them and pay the proceeds of the sate into the Treasury, to
a special account to be there kept for that purpose;

(c) at any time within twelve months of the time when the
proceeds of any estate have been paid into the Treasury under
this section, any perso 1 n entitled to the said proceeds, or to any
portion t hereof, may apply to the Harbour Master for the same,
t
and, at the expiration of the said twelve months, the Harbour
Master may make application in that behalf to the Treasurer,
and the Treasurer shall pay to the Harbour Alaster 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

As axnended by No. 14 of 1933 [23.6.331.





he may have incurred in advertising or othenvise 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) Where such goods and effects have been handed over
to, or taken possession of by, the Official Administrator, he
may, after such inquiry as he may think stifficient, distribute
them, in such manner as fie may consider just and convenient,
amongst the. persons who may appear to him, in his discretion,
to be entitled thereto or if lie can find no such persons within
six months of the time when the goods and effects come into
his hands, then he shall sell them and pay the proceeds of sale
into the Treasury, to a special account to be there kept for that
purpose, or into the account of the Government at such bank
as the Treasurer may direct. -

(3) The provisions of the Unclaimed Balances Ordinance,
1929, shall apply to moneys paid into any account under this
section as they do to any balance of an intestate estate under
section ig.

(4) 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.

(5) 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.

Sealing of Probates and Letters of Administration granted
by British Courts outside the Colony.

66. In this Part-
British court in a foreign country means any British

As aniended by No. 46 of 1935 [6.12.35] and Law Rev. Ord., 1937.





court having jurisdiction out of His Majesty's dominions*
in
pursuance of an Order in Council, whether made under any Act
or otherwise;

1 ' Court of probate ' means any court or authority, by
whatever name designated, having jurisdiction in matters of
probate;

His Majesty's dominions ' includes any British pro-
tectorate or protected state and any territory in respect of which
a mandate on behalf of the League of Nations has been accepted
by His Majesty;

' Probate ' and ' Letters of administration ' include con-
firmation in Scotland, and any instruinent.having in any other
part of His Majesty's dominions the same effect which under
English law is given to probate and letters, of administration
respectively;

Estate duty ' includes any duty payable on the value of
the estate and effects for which probate or letters o f adminis-
tration is or are granted.

67. Where a court of probate in any part of His Majesty's
dominions, or a British court in a foreign country, has granted
probate or letters of administration in respect of the estate of
a deceased person, the probate or letters so-granted may, on
being produced to, and a copy thereof deposited with the
Supreme Court, be sealed with the seal of that court, and there-
upon 5hall be of the like.force and effect, and have the same
operation in the Colony as if granted by that court.

68. The court shall, before sealing a probate or letters of
administration under this Part, be satisfied-

(a) that estate duty has been paid in respect of so much,
if any, of the estate as is liable to estate duty in the Colony
and

(b) in the case of letters 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 letters of administration
relate,

As amended by No. 46 of 1935 [6.12.351.
1+ As amended by Law Rev. Ord., 1937.





and may require such evidence, if any, as it thinks fit as to the
domicile of the deceased person.

69. The court may also, if it thinks fit, on the application of
any creditor, require, before sealin , that adequate security be
given for the payment of debts due from the estate to creditors
residing in the Colony.

70. For the purposes of this Part, a duplicate of any
probate or letters of administration sealed with the seal of the
court granting the same, or a copy thereof certified as correct
by or under the authority Of the court granting the same, shall
have the sanie effect as the original.

71. The power conferred on the Chief justice by section 74
of' this Ordinance to make general rules and orders, subject to
the approval of the Legislative Council, for regulating the
procedure and practice, including fees and costs, in the ~upreme
Court on and incidental to applications for grants of probate
or letters of administration in this Colony shall apply to
applications for sealing under ' this Part, and subject to any
exceptions and modifications made by such rules and orders,
the enactments for the time being in force in relation to estate
duty (including the penal provisions thereof) shall apply as if
the person who applies for sealing under this Part were applying
for probate or letters of administration.

[ss. 72 and 73, rep. No. 46 of 1935.]

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) for regulating the practice and procedure of the court,
and the several forms of petitions, orders, and other proceedings
to be used in the court;

(b) for regulating the duties of the various officers of the
court;

As amended by No. 46 of 1935 [6.12.35].





(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
ailowed with respect to all proceedings and all other matters in
the court;

(d) for regulating the filing, ctistodv, and inspection of
records; and

(e) generally for the better carrying out of the provisions of
this Ordinance.

75. Until such rules and orders have been made as afore-
said, the court may direct, either generally or in anv 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 modifica-
tions as the circumstances ma.v require, shall be followed and
adopted in the court.

76. An official copy of the whole or any part 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 granted to any Official Adminis-
trator shall be deemed to have been made to the Official
Administrator for the time being and to his successors in office.

* As amended by Law Rev. Ord., 1937.

FIRST SCHEDULE.

FORm OF RETURN OF ESTATES OF INTESTATES.
Return of estates of intestates for the half-year ending

Amount Deductions Balance on Disposal
Name ofreceived on for dis- closing of
intestate.account of bursements. account. balance.
estate.

(Signed) A.B., Official Administrator.
Dated the day of 19

SECOND SCHEDULE.

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 suin of 20 cents for every $50
or fraction of $50 by which the value exceeds $100.
[Originally no. 3 of 1897. No. 18 of 1929. No. 21 of 1930. No. 14 of 1933. No. 46 of 1935. Law Rev. Ord., 1937.] Short title. Interpretation. Ordinance No. 3 of 1932. 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 of property on vacation of office. Power to Official Administrator to take possession of property of deceased person until grant. Estates of citizens of U.S.A. [cf. No. 21 of 1934, s. 15(2).] 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. Summary administration of intestates' estates not exceeding $259. [cf. No. 5 of 1929, s. 4.] 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. [8.3.29.] Keeping of books of account. Copies of documents and account. 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 pend- ing 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. 29. Sittings in chambers 21 & 22 Vict. c. 95, s. 3. Powers of judge sitting in chambers. Powers of the court with regard to costs. Examination of 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 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. [23.6.33.] Specialty ad 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. 22 & 23 Vict. C. 35, s. 29. Allowance of remuneration to executor, administrator or attorney. 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. Summary administration of estates of subordinate police and prisons officers. Administration of estate of passenger dying on voyage to the Colony. Ordinance No. 5 of 1929, s. 4. Interpretation. Sealing of probates and letters of administration granted by British courts outside the Colony. Conditions to be fulfilled before sealing. Security for payment of debts. Duplicate or copy admissible. Rules as to practice under this Part. 55 & 56 Vict. C. 6, s. 2 (5). [cf. No. 3 of 1932, s. 2.] [6.12.35.] 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 administration granted to Official Administrator.

[Originally no. 3 of 1897. No. 18 of 1929. No. 21 of 1930. No. 14 of 1933. No. 46 of 1935. Law Rev. Ord., 1937.] Short title. Interpretation. Ordinance No. 3 of 1932. 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 of property on vacation of office. Power to Official Administrator to take possession of property of deceased person until grant. Estates of citizens of U.S.A. [cf. No. 21 of 1934, s. 15(2).] 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. Summary administration of intestates' estates not exceeding $259. [cf. No. 5 of 1929, s. 4.] 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. [8.3.29.] Keeping of books of account. Copies of documents and account. 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 pend- ing 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. 29. Sittings in chambers 21 & 22 Vict. c. 95, s. 3. Powers of judge sitting in chambers. Powers of the court with regard to costs. Examination of 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 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. [23.6.33.] Specialty ad 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. 22 & 23 Vict. C. 35, s. 29. Allowance of remuneration to executor, administrator or attorney. 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. Summary administration of estates of subordinate police and prisons officers. Administration of estate of passenger dying on voyage to the Colony. Ordinance No. 5 of 1929, s. 4. Interpretation. Sealing of probates and letters of administration granted by British courts outside the Colony. Conditions to be fulfilled before sealing. Security for payment of debts. Duplicate or copy admissible. Rules as to practice under this Part. 55 & 56 Vict. C. 6, s. 2 (5). [cf. No. 3 of 1932, s. 2.] [6.12.35.] 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 administration granted to Official Administrator.

https://oelawhk.lib.hku.hk/items/show/1458

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