PROBATE AND ADMINISTRATION ORDINANCE
Title
PROBATE AND ADMINISTRATION ORDINANCE
Description
ORvINA 11 CE No. 8 of 1860.
Probate and Administration.
No. 8 of 1860.
t&e ordy. .fin Ordinance to amend the Law in relation to the Grant and
Nn. 9 u/' 1870,
and ll'o. TO 0f
T BSG.]
Preamble.
Revocation of Probates of Wills and Letters of Administra-
tion in Honghong.
[30th April, 180.]
WHEREAS it is expedient to amend the law in relation to the grant -
and revocation of probates of wills and letters of adrninistra.tion
within the Colony .of Hongkong: : Be it therefore enacted and ordained by-
I3is Excellency the Governor of Hongkong, with the advice of the Lenis,-
lative Council thereof, as follows :-
itcpeal of 1. Sections 16 to 22 both inclusive of Ordinance No. G of 1845
shall
certain
sections of be and the same are hereby repealed.
No. 6 of 1845.
Interpre-
tntion of
terms,
2, hl the construction of this Ordinance unless the context he in-
consistent with the meaning hereby assigned.
'Till 'shall comprehend ''festahcnt' and all other testa--
rnentary instruments of which probate may now be or might at.
any tune heretofore have been granted.
'Administration' shall comprehend all letters of adminis-
tration of the effects of deceased persons, whether with or with-
out the will annexed, and -whether granted for general, special,
or limited purposes.
' Matters;'and Causes 'testamentary ' shall comprehend rill
matters and causes relating to tire grant and revocation of probate.
of wills or of administration.
'Common Form Business' shall mean the business of-
- obtaining probate and administration where there is no contention'
as to the right thereto, includinn the passing of probates and'
administrations through the Court of Probate in contentious.
cases when the content is terminated, and all business of a non--
contentious nature to be taken in the Court in hatters of testacy
and intestacy, not being proceedings in guy suit, and also the
business of lodging caveats against the grant of probate or ad-
ministration.
Testamentary 3, The voluntary and contentious jurisdiction and authority
in rela-
jnri9diction
to be eber- Lion to the Granting or revoking probate of wills and letters
of adtninis-...
°is`a by the tration of the effects of deceased persons, together with
full authority to,
OHDINAi\CE No. 8 0F' 1860.
Poobate and Adn:inistrat£o9a.
'hear and determine all questions relating to matters and causes testamen-
Supreme
Mary, shall belonto and be vested in and be exercised in the name of
court.
Her Majesty by the Supreme Court of Honblconb which shall 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 Hongkong- and in relation to the personal
.estate in Honakong 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 effects of deceased persons within
the jurisdiction of the said 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, or matters or causes testamentary
shall be performed by the said Court under the Probate Jurisdiction hereby
created : Provided that no suits for legacies, or suits for the
distribution
of residues, shall be entertained by the said Court in its Probate
Jurisdic-
tion.
4. 1\0 officer or clerk of the said Supreme Court in its Probate Juris-
wo -rnmr
undor this
-diction shall during the tune of his holdin0 such office directly or
indirectly o~ainarme to
flQt as
practise as an advocate, barrister, proctor, solicitor, or attorney, or
receive WvQOate, &e.
or participate in the fees of any other person so practising.
~. The Judge shall cause a seal to be made for the said Court in its aeai
of court.
to be
Probate Jurisdiction and may cause the same from tune to time to be
provided.
broken, altered, and renewed at his discretion ; and all probates,
letters of
administration, orders and other instruments, and exemplifications and
copies thereof, respectively, purporting to be sealed with such seal
shall be
received in evidence without further proof thereof. ' '
6. The said Court may require the attendance of any party in person,
rower to
-or of any person whom it may think fit to examine or cause to be exa-
examine
mined in guy suit or other proceedings in respect of matters or causes
testamentary, and may examine or cause to be examined upon oath,
declaration or afflrmation,'as the case may require 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 on interrogatories,
or receive their or any of their affidavits, declarations or solemn
affirma-
tions, as the case play be: And the Court may by writ require such
.attendance, 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 inE
Witnesses.
As to jooduo=
tion of deeds;
&o.
ORDINANCE ''.No., 8 0>. 1860.
Probate and Administration.-
which a writ of subpct?na ad testifieandum or of subpcrna daces tecum, is.
now issued by the said Court in its Common Law Jurisdiction, and every,
person disobeying any such writ shall be considered as in contempt of the~
Court and also be liable to forfeit a sum not exceeding one hundred
pounds.
Power to en- 7, The said Court shall have the like powers, jurisdiction,
and.
force orders, -
authority for enforcing the attendance of persons required by it as afore=
said, and for punishing persons failing-, neglecting, or refusing to
produce,
deeds, evidences, or writings, or refusing to appear or to be sworn or
make
affirmation or declaration or to give evidence, or guilty of contempt; and
generally for enforcing all orders, decrees, and j udgments made or given.
by the Court under this Ordinance and otherwise in relation to the mat--
tern to be inquired into and done by or under the orders of the Court.
under this Ordinance as are by law vested in the said Supreme Court for'
such purposes in relation to any suit or matter depending in the said
Court
in its Equitable or Common Law Jurisdiction.
Order to
1) roduce an'y
instrument purporting to
be teknmen-
twry.
$. The said Cou rt may, on motion or petition, or otherwise, in CIL
suznxnary way whet-laer any suit or other proceeding shall or shall not be
pending in the Court with respect to any probate or administration,
-order--
any person to produce and bring into the Registry or otherwise as the
Court
may direct, any paper or writing being or purporting to be testamentary,,
which may be shown to be in the possession or under the control o£ such
person: And if it be not shown that any such paper or writing is in the
possession or under the control of such person, but it shall appear that
there are reasonable grounds for believing that lie has the knowledge of
any such paper or writing, the Court may direct such person to attend
for the purpose of being examined in open Court, or upon interrogatories.
respecting the same, and such person shall be bound to answer such
questions or interrogatories, and, if .so ordered, to produce and bring
in;
such paper or writing, and shall be subject to the like process of
co`xitempt
in case of default in not attending or in not answering such questions or;
interrogatories, or not bringing in such paper or writing, as he Would
have been subject to in case he had been a party to a suit in the Court
aud,had made such default; and the costs of any such motion, petition; or
other proceeding shall be in the discretion of the Court.
Registrar, &c. 9. The Registrar and any other persons whom the Judge
shall,.und!Eer.
t .o have power
to administer the seal of the Court, from ,time to, time appoint shall
respectively..hav,Et
oat.n.., full power to administer oaths and declarations and perform: such
other,
ORDINANCE No. 8 of 1$G0.
Probate and Administration.
duties in reference to matters and causes testamentary as may be assigned
to them from time to time by guy rules and orders under this Ordinance,
and tire Commissioners for taking oaths in the said Court in its Common
con,tnt-
T.aw and Equitable Jurisdiction shall be Commissioners for taking oaths
sl°n°rg.
and declarations in the said Court in its Probate Jurisdiction.
10. In cases where it is necessary, to obtain affidavits, declarations,
or affirmations
to be used in the said Court in its Probate Jurisdiction from persons
residiuo in foreign
parts the same may be sworn, declared, or aflirine<1 before the persons
empowered to
administer oaths under the Act of the 6th Goo. IV, c. 87 or under the Act
of the 18th
and 19th 'Pict. c. 42: Provided that i n places where there are no such
persons as are
mentioned in the said Acts, such affidavits, declarations, or
affirmations may be made,
declared, and affirmed before any foreign local Magistrate or other
person having
authority to administer an oath. [Repealed by Ordinance No. X of 1861 and
new sections
substituted.]
Il. Affidavits, declarations, and affirmations to be used in the said
Court in its
Probate Jurisdiction may be sworn, trade, and taken in any place out of
the Colony of
Hongkong under the Dominion of Her Majesty before any Court, Judge,
Notary Public,
or person lawfully authorized to administer oaths in such place: And all
officers of
the said Court shall take judicial notice of the seal or signature, as
the case may be, of
any such Court, Judge, Notary Public, or person which shall be attached,
suspended,
or subscribed to any such affidavit, declaration, or affirmation or to
any other docu-
ment. [Repealed by Ordinance No. 1 of 1861 and new section substituted.]
12. If any person forge the signature of any Registrar or Ccilnlnis-
sinner for taking oaths or forge or counterfeit any seal of the said
Court in
its Probate Jurisdiction or forge or counterfeit any such seal or
signature
as in the last preceding section is mentioned or any seal or signature im-
pressed, affixed, or subscribed under the provisions of the said Act of
the
6th Geo. IV. cap. $7 or the 18th and 19th' Viet. cap. 42 to any affidavit,
declaration, or affirmation to be used in the said Court in its Probate
Ju-
risdiction or willingly use or concur in using any such forged or counter-
feit signature or seal or tender in evidence any document. as aforesaid
with a false or counterfeit signature or seal knowinn the same signature
or seal to be false or counterfeit, every such person shall be guilty of
felony,
and shall upon conviction be liable to penal servitude for the term of his
life or any term not less than seven years or to imprisonment for any term
not exceeding three years with or without hard labour: And whenever
any such document has been admitted in evidence by virtue of this Act,
the Court or the person who has admitted the same may at the request
-of any party against whom the same is so admitted in evidence, direct
Affidavits, &c.
before whom t(-
be made when
persons making
thorn reside in
foreign ports.
AtHdnvit9madoitt
1Sritish domi-
71i0119 t7CfU1'C
whom to Lo
morn.
Penalty Oil
forging or
count©rf°i t-
ing seals or
signature.
X89.
ORDII`TANC)J NO. 8 of 1860.
Probate and Administration.
that the same shall be impounded and be kept in the custody of some
officer of the Court or other proper person for such period and subject to
such conditions as to the said Court or person shall seem meet; and every
person charged with committing any felony under this Act may be dealt,
with, indicted, tried, and, if convicted, sentenced, and his offence may
be
laid and charged to have been committed, and every accessory before or
after the fact to any such offence may be dealt with, indicted, tried-,
and,
if convicted, sentenced, and his offence laid and charged to have been
committed in the said Colony of Hongkong.
Practice of 13. The practice of the said Court in its Probate Jurisdiction
shall,
the Court.
except where otherwise provided by this Ordinance or by the rules or
orders to be from time to time made under this Ordinance be so far as the
circumstances of the case will admit, according to the practice heretofore
prevailing in the said Court in its Ecclesiastical Jurisdiction.
Mode of 14. Subject to the regulations established or to be established by
taking
-evidence in such rules and orders as aforesaid, the witnesses and where
necessary the
contentious
matters. parties, in all contentious matters where their attendance can be
had, shall
be examined orally by or before the Judge in open Court: Provided
always, that, subject to any such regulations as aforesaid the parties
shall
be at liberty to verify their respective cases, in whole or in part, by
afft=
davit, but so that the deponent in every such affidavit shall, on the
appli-
cation of the opposite party be subject to be cross-examined by or on
behalf of such opposite party orally in open Court as aforesaid, and after
such cross-examination may be re-examined orally in open Court as afore-
said by or on behalf of the party by whom such affidavit was filed.
,Court may 15. Provided, that when a witness in any such matter is out of
the
issue coin-
missions or jurisdiction of.the Court, or when by reason of his illness
or~otherwise,
dive orders
for 6gamina- the Court shall not think fit to enforce the attendance of
the witness in
tion of
witnesses open Court, it shall be lawful for the Court to order a
commission to issue
abroad or who
arc unable to for the examination of such witness upon interrogatories or
otherwise, Or'
attend. if the witness be within the j urisdiction of the Court, to order
the ex amina;-
tion of such witness upon interrogatories or otherwise, before any
officer of
the said Court, or other person to be named in such order for the purpose
hand all the powers given to the Courts of Law at Westminster by the Acts
13th Goo.
III. cap. 63, and 1st Will. IV. cap. 22, for enabling the Courts of Law
at Westminster
to issue commissions and give orders for the examination of witnesses in
actions depepd-
inb in such Courts, and to enforce such examination and all the
provisions of the said
Acts, and of any other Acts for enforcing or otherwise applicable to such
examination
ORDINANCE No: 8 OF. 1860.
Probate and Administration.
and the witnesses examined, shall extend and be applicable to the said
Court in its
Probate Jurisdiction and to the examination of witnesses under the
commissions and
orders of the said Court, and to the witnesses examined, as if such Court
were one of
the Courts of Law at Westminster, and the matter before it were au action
pending in
such Courts. Repealed by Ordinance No. 1 of 1561.]
16. The rules of evidence observed in the Supreme Court in its Miles of
eYidencc to b e
Common Law Jurisdiction shall be applicable to and observed in the trial
observed a5 ;Lt
of all questions of fact in the said Court in its Probate Jurisdiction.
common law.
17. It shall be lawful for the said Court to cause any question of
fact arising in any suit or proceeding cinder this Ordinance to be tried
by
a special or common jury upon the application of any party or parties to
the proceeding made in that behalf'.
18. NVhen the Court shall order a question of fact to be tried by a
jury, the Court may make all such rules and orders upon the sheriff or
any other person 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 Common Law Jurisdiction, and inay also make any other orders
which to such Court may seem requisite: And every such jury shall be
struck, summoned, ballotted for, and called in ail<e manner as if' such
jury
,vere a jury for the trial of any cause in the said Supreme Court in its
Common Law Jurisdiction ; and every juryman so summoned shall be
entitled to the same rights, and subject to the wine duties and
liabilities,
as if lie had been duly summoned for the trial of any such cause in the
said Supreme Court and every party to any such proceeding shall be en-
titled to the same rights as to challen(re and otherwise as if he were a
party to any such cause: And generally for the purposes of or auxiliary
to the trial of questions of fact by a jury before the Court itself, and
in
respect of new trials thereof, and also for the purposes in relation to or
consequential upon the direction of issues, the said Court in its Probate
Jurisdiction shall have the same jurisdiction, powers, and authority in
all
respects as belong to the said Supreme Court in its Common Law or
Equitable Jurisdiction for the like purposes.
19. When any such question shall be so ordered to be tried by a Question
to '
jury before the Court itself, such question shall be reduced into Writing
,be stated ana
a the jury
in such form as the Court shall direct, and at the trial the jury shall
be ''n to try
impanelled to try the said question, and a true, verdict to-give, thereon:
Court may
cause CjnCS-
tions of fact.
to be tried. by
a jury.
Powers o£ the
Court for the
trial of ques-
boas by jury.
'The Judge
may sit in
chambers.
Powers of.
.Judge when
pitting in
chambers.
Judge to
pause calen-
dars to be
made from
time to time.
Iteaistrar to
transmit oc-
pies to cer-
tain offices.
ORDINANCE No. b of 1860.
Probate and Administration.
according to the evidence and upon every such trial the Court shall have
the same powers, ,jurisdiction, and authority as belong to the said Judge
of the said Supreme Court sitting at nisi prius.
20. It shall be lawful for the Judge of the said Court for the time
being to sit in Chambers for the dispatch of such business of the laic!
Court under this Ordinance as can, ire the opinion of the said Judge with
advantage to the suitors, be heard in Chambers: And the times at which
such sittings shall be held shall from time to time be fixed by the
Judge. Provided always that no question shall be heard in Chambers
which either party shall require to be heard in open Court.
21. The Judge of the said Court when so sitting in Chambers shall
have and exercise the same power and jurisdiction in respect of the busi-
ness to be brought before him as if. sitting in open Court.
22. Caveats against the grant of probates or administration may be
lodged in the Registry of the avid Court in its Probate Jurisdiction and
(subject to any rules or orders under this Ordinance) the practice and
procedure under such caveats in the Court of Probate shall as near as may
be, correspond with the practice and procedure under caveats heretofore
in use in the said Supreme Court in its Ecclesiastical Jurisdiction.
23. The Judge shall cause to be made from time to time in the Tis3-
gistry of the said Court in its Probate Jurisdiction, calendars of the
grants
of probate and administration therein for such periods as the Judge may
think fit, each such calendar to contain a note of every probate or admi-
nistration with the will annexed granted within the period therein speci-
fied, and also a note of every other administration granted within the
same
period, such respective notes setting forth the dates of such grants, the
names of the testators and intestates; the place and tune of death, the.
names and descriptions of the executors and administrators, and the value
of the effects as set forth in any commission of appraisement and the ca-
lendars to be so made shall be printed as the same are from time to time
completed.
2$, The Registrar shall cause a copy of every calendar to be trans-
mitted through the post to the Principal Registry of Her Majesty's Court
of Probate in England,- to the Principal Registry of Her Majesty's Court
of Probate in Ireland; to the office of the- Commissary of the County. of
Midlothian in Edinburgh, and such other offices if any as the said Judge:
shall from timL to, time by rule or order direct.
ORDINANCE No. 8 or 1860.
Probate and Adniinastration.
26. An official copy of the whole or any part of a kill, or an official
-certificate of the grant of any letters of administration, may be
obtained
from the Registry on the payment of such fees as shall be fired for the
same by the rules and orders under this Ordinance.
26. Pending any suit touching the validity of the will of any de-
ceased person, or for obtaining, recalling, or revoking any probate or any
.grant of administration, the Court may appoint an administrator of the
personal estate of such deceased person : And tie administrator so ap-
pointed shall have all the rights and powers of a general administrator,
.,other than the right of distributing the residue of such personal estate
And every such administrator shall be subject to the immediate control
-of the Court and act under its direction.
Official copy
o£ Wole or
hart of a will
may be ob-
tamed.
t\dn,irtirtra-
tions pencdcnte
lite.
27. All the provisions contained in this Ordinance respecting grants
namit,intn,-
tion pending
.of administration pending suit shall be deemed to apply to the case of
Snit to apply
appeals to Her Majesty in Council from. any decision of the said Court in
t° appeals..
its Probate Jurisdiction.
.28. It shall and may be lawful for the said Court to allow to any
.-executor or administrator including administrators appointed pendente
-lite as aforesaid such remuneration out of the estate of the deceased as
hall be just and reasonable for their pains and trouble therein : Pro-
vided always, that no allowance whatever shall be made to any executor
-or administrator who shall neglect to pass leis accounts at such time, or
to dispose of any movies, hoods, chattels, or securities with which he
shall lie chargeable in such manner as in pursuance of any rule or order
-of the said Court shall be requisite.
29. Where any. person after the commencement of this Ordinance
renounces prolaate of the will of which he is appointed executor or one of
-the executors, the zits of such person in respect of the executorship
shall wholly cease, and the representation of the testator and the admi-
-nistrator of the effects shall and may, without any farther renunciation,
go, devolve, and be committed in like manner as if such person had not
been appointed executor.
$Q. Where a person has died or shall die 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 pro-
hate; or where the executor shall at the time of the death of such person
be resident out of the Colony of Hongkong, or where it shall appear to the
Ttemunera-
tion allowed.
to executors
and adminis-
trar~g.
Executors
renouncing
prob<Ltc.
power as to
appointment.
of adminis--_.
trator.
An executor
not acting or
not appearing
to a citation
to be treated
as if he had
renounced.
ORDINANCE' No. 8 of 1860.
Probate and Administration.
Court to be necessary or convenient to appoint some person to be the adw
ministrator of the personal estate of the deceased or of any part of
such.,
personal 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 shall think fit to be such administrator-
upon his giving such security (if any) as the Court shall direct and every
such administration may be limited as the Court shall think fit.
31. Whenever an executor appointed in a will survives the testator
but dies without having taken probate or being 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 to the testator-
and the administration of his effects shall go, devolve, and be committed
in like manner as if such person bad not been appointed executor.
32. The provisions of an Act passed in the twenty-eighth * year of
Isis 1121Ljesty King George the 'third, chapter eighty-seven, shall be ex-
tended to all executors and administrators residing out of the
jurisdiction
of Her Majesty's said Supreme Court of Hongkong whether it be or be
not intended to institute proceedings on the Equity side of the said Su-
preme Court and it shall be lawful to alter the language of the grant
prescribed by the said Statute so as to make it apply to grants made in
the said Supreme Court in its Probate Jurisdiction under this Ordinance:
33. After any grant of administration, no person shall have power -
to sue or prosecute any suit, or otherwise act as executor of the
deceased,
as to the personal estate comprised in or affected by such grant of ad-
ministration, until such administration shall have been recalled or
revoked.
34. Where before the revocation of any temporary administration
any proceedings at Law or in Equity have been commenced in the said
Supreme Court 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 administration which shall have been made consequent there-
upon, and that the proceedings shall be continued in the name of the new
executor of administrator in like manner as if the proceeding had been
originally commences by or against such new executor or administrator'
but.subject to such conditions and variations if any as the Court may
direct.:. '
Provisions of
88 Cieo. TTT.
c: 87 extend-
ed to all cases
of executors
and adminis-
trator resid-
ing out of
jurisdiction.
[* Tleirty-
crgltth.]
offer grant
of acrminis-
tration no
person to
have power
to sue as an
executor.
Revocation of
temporary
grants not to
prejudice ac-
tions or suits.
011DINANCE No. 8' oh' 1860:
Probate and Administration.
35. Where any probate or administration is revoked under this
Ordinance, all payments 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 snaking the same. and tile executor or
administrator who shall have acted under any such revoked probate or
administration may detain and reimburse himself in respect of any pay-
ments made by him which the person to whom probate or adillinistra-
tion, shall be afterwards granted might have lawfully made.
36. All persons making or permitting to be made any payment or
transfer bond fide upon any probate or letters of administration granted
ill
respect of the estate of any deceased person under the authority of this
Ordinance shall be indemnified and protected in so doing, notwithstand-
iltg any defect or circumstanc.- whatsoever affection the validity, of
such
,probate or letters of administration.
37. All non-contentious business pending in the Supreme Court at
the date of this Ordinance shall be deemed to have been commenced
under this Ordinance. And all acts executed under the authority of the
.said Court with reference to such business which would have been valid
if the hereby repealed sections of Ordinance No. G of 1845 were still in
operation shall be valid and all oaths sworn and bonds executed in man-
ner required by the said Court in reference to such business prior to the
date hereof' shall continue to have and be deemed to have had the same
force and effect in law as they would have had if sworn and executed in
pursuance of the provisions of this Ordinance, or of Ordinance No. 5 of
1858.
38. The Judge of the said Court shall have and exercise the same
power of altering and amending grants of probate and letters of admi-
nistration made before the passing of this Ordinance as he has had or
-exercised before the date hereof.
39. From and after the decease of any person dying intestate and
until letters of administration shall be granted in respect of his estate
and effects, the personal estate and effects of such deceased person shall
be vested in the Registrar of the said Supreme Court.
43. Every person other than the Official Administrator to whom
.any grant of administration shall be committed shall give a bond with
~if the Court shall require) one or more surety or sureties conditioned
Payments
underrevoked
probates or
administra-
tions to be
valid.
Persons ntah-
iug payment
upon probate
granted for
estate of de-
ceased person
to be indem-
nified.
Volt-contcn-
tious business
pending Lo-
be deemed
commenced
under this
Ordinance.
Power of
Judge to alter
grants of pro-
bate and let-
ters of admi-
nistration
made prior
to this Ordi-
nance.
1;2tween the
death of the
person de-
ceased and -
the grant,
the 1>roperty-
to vest in the
Registrar. -
Ad ministra-
ton to give
bonds.
Void or void-
reblo grant
of all
and letters
of acMniuic_
tratiori.
Fees to be
taken by
officers of
Court, &c:
ORDINANCE No. 8 of 1860.
Probate and Administration.
for duly collecting, getting in, and administering the personal estate of-
the deceased, which bond shall be in such form as the Judge shall f
tune to tune direct : Provided that it shall not be necessary for the
Superintendent of Police for the time be;nn applying for or obtaining
administration of the estates of policemen dying in the Colony as herein-
after provided for to give any such bond as aforesaid.
Amount or 41. Such bond shall be in a penalty of double the amount under
1'enalty of which the estate and effects of the deceased shall be sworn,
unless the--
Court shall in any case think fit to direct the same to be reduced, in
which case it shall be lawful for the Court so to do, and the Court may
also direct that more bonds than one shall be given so as to limit the
liability of clay surety to such amount as the Court shall think rea-
sonable.
42. All grants of probates and administrations made before the date-
of this Ordinance which may be void or voidable by reason only that the
same were made under Ordinance No. 6 of 184, and all acts or things
done in respect thereof shall be as valid as if the same had been made-
under Ordinance No. 5 of 1858 : Provided that any such grants of pib-
bate or administration shall not be made valid by this Ordinance when:
the same shall before the date hereof have been revoked or determined by
the Supreme Court to have been void; nor shall this Ordinance prejudice-
or affect any proceedings pending at the time of the Passing of this Ordi-
nance in which the validity of any such probate or administration shall
be in question : If the result of such pr oceedino, shall be to
invalidate-
the same, such probate or administration shall not be rendered valid by
this Ordinance and if such proceedings abate of become defective by
reason of the death of any party, any person who but for this Ordinance
would have any right by reason of the invalidity of such probate or, ad-
ministration shall retain such right and may commence proceedings for
enforcing the same within six calendar months after the death. of such
party.
43. The Chief Justice of the Supreme Court with the concurrence
of the Legislative Council shall as soon as conveniently may be after the
passing of this Ordinance fix a table or tables of fees to be taken by th&
officers of the Court in its Probate Jurisdiction and the proctors,
solicitors, and attornies practising therein, in respect of business under
this Ordinance, and of fees to be payable in respect of searches,
inspection,.
ORDINANCE No. 8 of 1860.
Probate and Administration.
and for copies of and extracts from records, wills, and other documents in
the custody or under the control of tile said Court, and the said Chief
Justice
with such concurrence as aforesaid is hereby empowered, from time to
time after this Ordinance shall come into operation, to add to, reduce,
alter, or amend such table or tables of fees, as may seem fit: Provided
that every such table of fees, and every addition, reduction, alteration,
or
amendment to, in, or of the same, shall be published in the Hongkong
Government Gazette, and no other fees than those specified and allowed
in such table of fees shall be demauded or taken by such officers, and
proctors, solicitors and attornies.
44. -Persons employed in the Police Force of this Colony under the
rank of Inspector and dying here whilst so employed shall not be deemed
to be within the meaning of the foregoing sections of this Ordinance ; but
the Superintendent of Police for the time being is hereby constituted the
Official Administrator of their estates and required to get in and
administer the same with the sanction of the Colonial Secretary, and
within one month after the decease of any such person to certify the same
and the amount in value of the estate and effects of such persons by
certificate under his hand to the Registrar of the Supreme Court for
registry in the said Court. And shall also pay over to the Colonial
Treasurer the balance of every such estate after payment of all lawful
claims : Provided that it shall be lawful for the Colonial Secretary upon
the application of the Superintendent of Police at any time to sign an
order upon the Colonial Treasurer for the payment of the whole or any
part of such balance.
45. NV here letters'of administration have been or shall have been
granted by the said Court the Official Administrator shall within one
month after receiving any money belonging to any estate to the amount
of one hundred dollars clear of all just allowances and deductions pay the
same into the bands of the Colonial Treasurer for the time being to the
credit of the said estate, unless the Chief Justice upon a written
statement
of .facts shall report it will be snore expedient for the said estate to
be
otherwise held or disposed of. And such Treasurer shall receive from
the Official Administrator as aforesaid all such sums of money as he
shall tender to him and shall carry the same to the credit of such estates
as the said Official Administrator shall specify giving him at the same
time a receipt for the specific sums so paid in, and whenever the said
a(lrntiii,.
tratiom to
deceased
Police
constables.
Payment of
money into
Ti-ectsary.
ORDINANCE No. 8 0F 1860.
Probate and r9dpzinistration.
Official Administrator shall have occasion to draw any sum of money out
of the bands of such Treasurer he shall apply by petition to the Chief
Justice at chambers for an order for the payment (hereof stating in such
petition the purpose for which such money is required. And such
'.Creasarer shall not pay over any movies which may have been paid into
his hands as aforesaid without such order.
'Official 46. The Official Administrator shall make out and furnish to the
Administra-
tor to make Judge and to the Colonial Secretary half yearly returns
according to the
half yearly form set outin the schedule hereunto annexed of estates vested
in him during
returns. the preceding half year, and he shall from time to tune pay into
the
hands of the Colonial Treasurer for the time beinn the balances rernaininb
in respect of each estate immediately after the same shall have been
closed.
[Section 47 added by Ordinance No. 20 of 1885 relating to the
administration
of the estates of persons who die at, sea in the course of oj'a voyage to
Hongkong.]
SCI3EDULD.
lieturn of estates of Intestates for the Half fear ending 18
NAME OF INTI:S-
TATI:.
hIcnakongr 111e (,;ay of 18
AMOUNT RE-
DI:DUCTIUNS BALANCE ON
crrvEn ON
ACCOUNT of r?orl Dzslsunsu- CLOSING Ac-
T~ arxNTS. COUNT.
TIM ESTATE.
DisrosAL OF
BALANCE.
Offlicial Administrator.
cTZ:.-See also Ordinances 1'0..9 of 1810, :Vos. 1 and 10 of 1886, :1'0.
13 of 1890.
[See Ords. No. 9 of 1870, and No. 10 of 1886.]
Preamble.
Repeal of certain sections of No. 6 1845.
Intrepretation of terms.
Testamentary jurisdiction to be exercised by the Supreme Court.
No. officer under this Ordinance to act as advocate, &c.
Seal of Court to be provided.
Power to examine witnesses.
As to production of deeds, &c.
Power to enforce orders.
Order to produce any instrument purporting to be testamentary.
Registrar, &c. to have power to administer oaths.
Commissioners.
Affidavits, &c. before whom to be made when persons making them reside in foreign parts.
Affidavits made in British dominions before whom to be sworn.
Penalty on forging or counterfeiting seals or signature.
Practice of the Court.
Mode of taking evidence in contentious matters.
Court may issue commissions or give orders for examination of witnesses abroad or who are unable to attend.
Rules of evidence to be observed as at common law.
Court may cause quwstions of fact to be tried by a jury.
Powers of the Court for the trial of questions by jury.
Question to be stated and the jury sworn to try it.
The Judeg may sit in Chambers.
Powers of Judge when sitting in Chambers.
Caveats.
Judge to cause calendars tobe made from time to time.
Registraar to transmit copies to certain offices.
Official copy of whole or part of a will may be obtained.
Administrations pendente lite.
Administration pending suit to apply to appeals.
Remuneration allowed to exeutors and administrators.
Executors renouncin probate.
Power as to appointment of administrator.
An executor not acting or not appearing to a citation to be treated as of he had renounced.
Provisions of 38 Geo. III. c. 87 extended to all cases of executors adn administrator residing out of jurisdiction. [* Tirty-eighth.]
After grant of administration no person to have power to sue as an executor.
Revocation of temporary grants not to prejudice actions or suits.
Payments under revoked probates or administrations to be valid.
Persons making payment upon probate granted for estate of deceased person to be indemnified.
Non-contentions business pending to be deemed commenced under this Ordinance.
Power of Judge to alter grants of probate and letters of administration made prior to this Ordinance.
Between the death of the person deceased and the grant, the property to vest in the Registrar.
Adiministrators to give bonds.
Amount of penalty of bond.
Voild or voidable grants of probates and letters of administration.
Fees to be taken by officers of Court, &c.
Administration to deceased Police constables.
Payment of money into Treasury.
Official Administrator to make half yearly returns.
Probate and Administration.
No. 8 of 1860.
t&e ordy. .fin Ordinance to amend the Law in relation to the Grant and
Nn. 9 u/' 1870,
and ll'o. TO 0f
T BSG.]
Preamble.
Revocation of Probates of Wills and Letters of Administra-
tion in Honghong.
[30th April, 180.]
WHEREAS it is expedient to amend the law in relation to the grant -
and revocation of probates of wills and letters of adrninistra.tion
within the Colony .of Hongkong: : Be it therefore enacted and ordained by-
I3is Excellency the Governor of Hongkong, with the advice of the Lenis,-
lative Council thereof, as follows :-
itcpeal of 1. Sections 16 to 22 both inclusive of Ordinance No. G of 1845
shall
certain
sections of be and the same are hereby repealed.
No. 6 of 1845.
Interpre-
tntion of
terms,
2, hl the construction of this Ordinance unless the context he in-
consistent with the meaning hereby assigned.
'Till 'shall comprehend ''festahcnt' and all other testa--
rnentary instruments of which probate may now be or might at.
any tune heretofore have been granted.
'Administration' shall comprehend all letters of adminis-
tration of the effects of deceased persons, whether with or with-
out the will annexed, and -whether granted for general, special,
or limited purposes.
' Matters;'and Causes 'testamentary ' shall comprehend rill
matters and causes relating to tire grant and revocation of probate.
of wills or of administration.
'Common Form Business' shall mean the business of-
- obtaining probate and administration where there is no contention'
as to the right thereto, includinn the passing of probates and'
administrations through the Court of Probate in contentious.
cases when the content is terminated, and all business of a non--
contentious nature to be taken in the Court in hatters of testacy
and intestacy, not being proceedings in guy suit, and also the
business of lodging caveats against the grant of probate or ad-
ministration.
Testamentary 3, The voluntary and contentious jurisdiction and authority
in rela-
jnri9diction
to be eber- Lion to the Granting or revoking probate of wills and letters
of adtninis-...
°is`a by the tration of the effects of deceased persons, together with
full authority to,
OHDINAi\CE No. 8 0F' 1860.
Poobate and Adn:inistrat£o9a.
'hear and determine all questions relating to matters and causes testamen-
Supreme
Mary, shall belonto and be vested in and be exercised in the name of
court.
Her Majesty by the Supreme Court of Honblconb which shall 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 Hongkong- and in relation to the personal
.estate in Honakong 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 effects of deceased persons within
the jurisdiction of the said 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, or matters or causes testamentary
shall be performed by the said Court under the Probate Jurisdiction hereby
created : Provided that no suits for legacies, or suits for the
distribution
of residues, shall be entertained by the said Court in its Probate
Jurisdic-
tion.
4. 1\0 officer or clerk of the said Supreme Court in its Probate Juris-
wo -rnmr
undor this
-diction shall during the tune of his holdin0 such office directly or
indirectly o~ainarme to
flQt as
practise as an advocate, barrister, proctor, solicitor, or attorney, or
receive WvQOate, &e.
or participate in the fees of any other person so practising.
~. The Judge shall cause a seal to be made for the said Court in its aeai
of court.
to be
Probate Jurisdiction and may cause the same from tune to time to be
provided.
broken, altered, and renewed at his discretion ; and all probates,
letters of
administration, orders and other instruments, and exemplifications and
copies thereof, respectively, purporting to be sealed with such seal
shall be
received in evidence without further proof thereof. ' '
6. The said Court may require the attendance of any party in person,
rower to
-or of any person whom it may think fit to examine or cause to be exa-
examine
mined in guy suit or other proceedings in respect of matters or causes
testamentary, and may examine or cause to be examined upon oath,
declaration or afflrmation,'as the case may require 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 on interrogatories,
or receive their or any of their affidavits, declarations or solemn
affirma-
tions, as the case play be: And the Court may by writ require such
.attendance, 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 inE
Witnesses.
As to jooduo=
tion of deeds;
&o.
ORDINANCE ''.No., 8 0>. 1860.
Probate and Administration.-
which a writ of subpct?na ad testifieandum or of subpcrna daces tecum, is.
now issued by the said Court in its Common Law Jurisdiction, and every,
person disobeying any such writ shall be considered as in contempt of the~
Court and also be liable to forfeit a sum not exceeding one hundred
pounds.
Power to en- 7, The said Court shall have the like powers, jurisdiction,
and.
force orders, -
authority for enforcing the attendance of persons required by it as afore=
said, and for punishing persons failing-, neglecting, or refusing to
produce,
deeds, evidences, or writings, or refusing to appear or to be sworn or
make
affirmation or declaration or to give evidence, or guilty of contempt; and
generally for enforcing all orders, decrees, and j udgments made or given.
by the Court under this Ordinance and otherwise in relation to the mat--
tern to be inquired into and done by or under the orders of the Court.
under this Ordinance as are by law vested in the said Supreme Court for'
such purposes in relation to any suit or matter depending in the said
Court
in its Equitable or Common Law Jurisdiction.
Order to
1) roduce an'y
instrument purporting to
be teknmen-
twry.
$. The said Cou rt may, on motion or petition, or otherwise, in CIL
suznxnary way whet-laer any suit or other proceeding shall or shall not be
pending in the Court with respect to any probate or administration,
-order--
any person to produce and bring into the Registry or otherwise as the
Court
may direct, any paper or writing being or purporting to be testamentary,,
which may be shown to be in the possession or under the control o£ such
person: And if it be not shown that any such paper or writing is in the
possession or under the control of such person, but it shall appear that
there are reasonable grounds for believing that lie has the knowledge of
any such paper or writing, the Court may direct such person to attend
for the purpose of being examined in open Court, or upon interrogatories.
respecting the same, and such person shall be bound to answer such
questions or interrogatories, and, if .so ordered, to produce and bring
in;
such paper or writing, and shall be subject to the like process of
co`xitempt
in case of default in not attending or in not answering such questions or;
interrogatories, or not bringing in such paper or writing, as he Would
have been subject to in case he had been a party to a suit in the Court
aud,had made such default; and the costs of any such motion, petition; or
other proceeding shall be in the discretion of the Court.
Registrar, &c. 9. The Registrar and any other persons whom the Judge
shall,.und!Eer.
t .o have power
to administer the seal of the Court, from ,time to, time appoint shall
respectively..hav,Et
oat.n.., full power to administer oaths and declarations and perform: such
other,
ORDINANCE No. 8 of 1$G0.
Probate and Administration.
duties in reference to matters and causes testamentary as may be assigned
to them from time to time by guy rules and orders under this Ordinance,
and tire Commissioners for taking oaths in the said Court in its Common
con,tnt-
T.aw and Equitable Jurisdiction shall be Commissioners for taking oaths
sl°n°rg.
and declarations in the said Court in its Probate Jurisdiction.
10. In cases where it is necessary, to obtain affidavits, declarations,
or affirmations
to be used in the said Court in its Probate Jurisdiction from persons
residiuo in foreign
parts the same may be sworn, declared, or aflirine<1 before the persons
empowered to
administer oaths under the Act of the 6th Goo. IV, c. 87 or under the Act
of the 18th
and 19th 'Pict. c. 42: Provided that i n places where there are no such
persons as are
mentioned in the said Acts, such affidavits, declarations, or
affirmations may be made,
declared, and affirmed before any foreign local Magistrate or other
person having
authority to administer an oath. [Repealed by Ordinance No. X of 1861 and
new sections
substituted.]
Il. Affidavits, declarations, and affirmations to be used in the said
Court in its
Probate Jurisdiction may be sworn, trade, and taken in any place out of
the Colony of
Hongkong under the Dominion of Her Majesty before any Court, Judge,
Notary Public,
or person lawfully authorized to administer oaths in such place: And all
officers of
the said Court shall take judicial notice of the seal or signature, as
the case may be, of
any such Court, Judge, Notary Public, or person which shall be attached,
suspended,
or subscribed to any such affidavit, declaration, or affirmation or to
any other docu-
ment. [Repealed by Ordinance No. 1 of 1861 and new section substituted.]
12. If any person forge the signature of any Registrar or Ccilnlnis-
sinner for taking oaths or forge or counterfeit any seal of the said
Court in
its Probate Jurisdiction or forge or counterfeit any such seal or
signature
as in the last preceding section is mentioned or any seal or signature im-
pressed, affixed, or subscribed under the provisions of the said Act of
the
6th Geo. IV. cap. $7 or the 18th and 19th' Viet. cap. 42 to any affidavit,
declaration, or affirmation to be used in the said Court in its Probate
Ju-
risdiction or willingly use or concur in using any such forged or counter-
feit signature or seal or tender in evidence any document. as aforesaid
with a false or counterfeit signature or seal knowinn the same signature
or seal to be false or counterfeit, every such person shall be guilty of
felony,
and shall upon conviction be liable to penal servitude for the term of his
life or any term not less than seven years or to imprisonment for any term
not exceeding three years with or without hard labour: And whenever
any such document has been admitted in evidence by virtue of this Act,
the Court or the person who has admitted the same may at the request
-of any party against whom the same is so admitted in evidence, direct
Affidavits, &c.
before whom t(-
be made when
persons making
thorn reside in
foreign ports.
AtHdnvit9madoitt
1Sritish domi-
71i0119 t7CfU1'C
whom to Lo
morn.
Penalty Oil
forging or
count©rf°i t-
ing seals or
signature.
X89.
ORDII`TANC)J NO. 8 of 1860.
Probate and Administration.
that the same shall be impounded and be kept in the custody of some
officer of the Court or other proper person for such period and subject to
such conditions as to the said Court or person shall seem meet; and every
person charged with committing any felony under this Act may be dealt,
with, indicted, tried, and, if convicted, sentenced, and his offence may
be
laid and charged to have been committed, and every accessory before or
after the fact to any such offence may be dealt with, indicted, tried-,
and,
if convicted, sentenced, and his offence laid and charged to have been
committed in the said Colony of Hongkong.
Practice of 13. The practice of the said Court in its Probate Jurisdiction
shall,
the Court.
except where otherwise provided by this Ordinance or by the rules or
orders to be from time to time made under this Ordinance be so far as the
circumstances of the case will admit, according to the practice heretofore
prevailing in the said Court in its Ecclesiastical Jurisdiction.
Mode of 14. Subject to the regulations established or to be established by
taking
-evidence in such rules and orders as aforesaid, the witnesses and where
necessary the
contentious
matters. parties, in all contentious matters where their attendance can be
had, shall
be examined orally by or before the Judge in open Court: Provided
always, that, subject to any such regulations as aforesaid the parties
shall
be at liberty to verify their respective cases, in whole or in part, by
afft=
davit, but so that the deponent in every such affidavit shall, on the
appli-
cation of the opposite party be subject to be cross-examined by or on
behalf of such opposite party orally in open Court as aforesaid, and after
such cross-examination may be re-examined orally in open Court as afore-
said by or on behalf of the party by whom such affidavit was filed.
,Court may 15. Provided, that when a witness in any such matter is out of
the
issue coin-
missions or jurisdiction of.the Court, or when by reason of his illness
or~otherwise,
dive orders
for 6gamina- the Court shall not think fit to enforce the attendance of
the witness in
tion of
witnesses open Court, it shall be lawful for the Court to order a
commission to issue
abroad or who
arc unable to for the examination of such witness upon interrogatories or
otherwise, Or'
attend. if the witness be within the j urisdiction of the Court, to order
the ex amina;-
tion of such witness upon interrogatories or otherwise, before any
officer of
the said Court, or other person to be named in such order for the purpose
hand all the powers given to the Courts of Law at Westminster by the Acts
13th Goo.
III. cap. 63, and 1st Will. IV. cap. 22, for enabling the Courts of Law
at Westminster
to issue commissions and give orders for the examination of witnesses in
actions depepd-
inb in such Courts, and to enforce such examination and all the
provisions of the said
Acts, and of any other Acts for enforcing or otherwise applicable to such
examination
ORDINANCE No: 8 OF. 1860.
Probate and Administration.
and the witnesses examined, shall extend and be applicable to the said
Court in its
Probate Jurisdiction and to the examination of witnesses under the
commissions and
orders of the said Court, and to the witnesses examined, as if such Court
were one of
the Courts of Law at Westminster, and the matter before it were au action
pending in
such Courts. Repealed by Ordinance No. 1 of 1561.]
16. The rules of evidence observed in the Supreme Court in its Miles of
eYidencc to b e
Common Law Jurisdiction shall be applicable to and observed in the trial
observed a5 ;Lt
of all questions of fact in the said Court in its Probate Jurisdiction.
common law.
17. It shall be lawful for the said Court to cause any question of
fact arising in any suit or proceeding cinder this Ordinance to be tried
by
a special or common jury upon the application of any party or parties to
the proceeding made in that behalf'.
18. NVhen the Court shall order a question of fact to be tried by a
jury, the Court may make all such rules and orders upon the sheriff or
any other person 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 Common Law Jurisdiction, and inay also make any other orders
which to such Court may seem requisite: And every such jury shall be
struck, summoned, ballotted for, and called in ail<e manner as if' such
jury
,vere a jury for the trial of any cause in the said Supreme Court in its
Common Law Jurisdiction ; and every juryman so summoned shall be
entitled to the same rights, and subject to the wine duties and
liabilities,
as if lie had been duly summoned for the trial of any such cause in the
said Supreme Court and every party to any such proceeding shall be en-
titled to the same rights as to challen(re and otherwise as if he were a
party to any such cause: And generally for the purposes of or auxiliary
to the trial of questions of fact by a jury before the Court itself, and
in
respect of new trials thereof, and also for the purposes in relation to or
consequential upon the direction of issues, the said Court in its Probate
Jurisdiction shall have the same jurisdiction, powers, and authority in
all
respects as belong to the said Supreme Court in its Common Law or
Equitable Jurisdiction for the like purposes.
19. When any such question shall be so ordered to be tried by a Question
to '
jury before the Court itself, such question shall be reduced into Writing
,be stated ana
a the jury
in such form as the Court shall direct, and at the trial the jury shall
be ''n to try
impanelled to try the said question, and a true, verdict to-give, thereon:
Court may
cause CjnCS-
tions of fact.
to be tried. by
a jury.
Powers o£ the
Court for the
trial of ques-
boas by jury.
'The Judge
may sit in
chambers.
Powers of.
.Judge when
pitting in
chambers.
Judge to
pause calen-
dars to be
made from
time to time.
Iteaistrar to
transmit oc-
pies to cer-
tain offices.
ORDINANCE No. b of 1860.
Probate and Administration.
according to the evidence and upon every such trial the Court shall have
the same powers, ,jurisdiction, and authority as belong to the said Judge
of the said Supreme Court sitting at nisi prius.
20. It shall be lawful for the Judge of the said Court for the time
being to sit in Chambers for the dispatch of such business of the laic!
Court under this Ordinance as can, ire the opinion of the said Judge with
advantage to the suitors, be heard in Chambers: And the times at which
such sittings shall be held shall from time to time be fixed by the
Judge. Provided always that no question shall be heard in Chambers
which either party shall require to be heard in open Court.
21. The Judge of the said Court when so sitting in Chambers shall
have and exercise the same power and jurisdiction in respect of the busi-
ness to be brought before him as if. sitting in open Court.
22. Caveats against the grant of probates or administration may be
lodged in the Registry of the avid Court in its Probate Jurisdiction and
(subject to any rules or orders under this Ordinance) the practice and
procedure under such caveats in the Court of Probate shall as near as may
be, correspond with the practice and procedure under caveats heretofore
in use in the said Supreme Court in its Ecclesiastical Jurisdiction.
23. The Judge shall cause to be made from time to time in the Tis3-
gistry of the said Court in its Probate Jurisdiction, calendars of the
grants
of probate and administration therein for such periods as the Judge may
think fit, each such calendar to contain a note of every probate or admi-
nistration with the will annexed granted within the period therein speci-
fied, and also a note of every other administration granted within the
same
period, such respective notes setting forth the dates of such grants, the
names of the testators and intestates; the place and tune of death, the.
names and descriptions of the executors and administrators, and the value
of the effects as set forth in any commission of appraisement and the ca-
lendars to be so made shall be printed as the same are from time to time
completed.
2$, The Registrar shall cause a copy of every calendar to be trans-
mitted through the post to the Principal Registry of Her Majesty's Court
of Probate in England,- to the Principal Registry of Her Majesty's Court
of Probate in Ireland; to the office of the- Commissary of the County. of
Midlothian in Edinburgh, and such other offices if any as the said Judge:
shall from timL to, time by rule or order direct.
ORDINANCE No. 8 or 1860.
Probate and Adniinastration.
26. An official copy of the whole or any part of a kill, or an official
-certificate of the grant of any letters of administration, may be
obtained
from the Registry on the payment of such fees as shall be fired for the
same by the rules and orders under this Ordinance.
26. Pending any suit touching the validity of the will of any de-
ceased person, or for obtaining, recalling, or revoking any probate or any
.grant of administration, the Court may appoint an administrator of the
personal estate of such deceased person : And tie administrator so ap-
pointed shall have all the rights and powers of a general administrator,
.,other than the right of distributing the residue of such personal estate
And every such administrator shall be subject to the immediate control
-of the Court and act under its direction.
Official copy
o£ Wole or
hart of a will
may be ob-
tamed.
t\dn,irtirtra-
tions pencdcnte
lite.
27. All the provisions contained in this Ordinance respecting grants
namit,intn,-
tion pending
.of administration pending suit shall be deemed to apply to the case of
Snit to apply
appeals to Her Majesty in Council from. any decision of the said Court in
t° appeals..
its Probate Jurisdiction.
.28. It shall and may be lawful for the said Court to allow to any
.-executor or administrator including administrators appointed pendente
-lite as aforesaid such remuneration out of the estate of the deceased as
hall be just and reasonable for their pains and trouble therein : Pro-
vided always, that no allowance whatever shall be made to any executor
-or administrator who shall neglect to pass leis accounts at such time, or
to dispose of any movies, hoods, chattels, or securities with which he
shall lie chargeable in such manner as in pursuance of any rule or order
-of the said Court shall be requisite.
29. Where any. person after the commencement of this Ordinance
renounces prolaate of the will of which he is appointed executor or one of
-the executors, the zits of such person in respect of the executorship
shall wholly cease, and the representation of the testator and the admi-
-nistrator of the effects shall and may, without any farther renunciation,
go, devolve, and be committed in like manner as if such person had not
been appointed executor.
$Q. Where a person has died or shall die 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 pro-
hate; or where the executor shall at the time of the death of such person
be resident out of the Colony of Hongkong, or where it shall appear to the
Ttemunera-
tion allowed.
to executors
and adminis-
trar~g.
Executors
renouncing
prob<Ltc.
power as to
appointment.
of adminis--_.
trator.
An executor
not acting or
not appearing
to a citation
to be treated
as if he had
renounced.
ORDINANCE' No. 8 of 1860.
Probate and Administration.
Court to be necessary or convenient to appoint some person to be the adw
ministrator of the personal estate of the deceased or of any part of
such.,
personal 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 shall think fit to be such administrator-
upon his giving such security (if any) as the Court shall direct and every
such administration may be limited as the Court shall think fit.
31. Whenever an executor appointed in a will survives the testator
but dies without having taken probate or being 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 to the testator-
and the administration of his effects shall go, devolve, and be committed
in like manner as if such person bad not been appointed executor.
32. The provisions of an Act passed in the twenty-eighth * year of
Isis 1121Ljesty King George the 'third, chapter eighty-seven, shall be ex-
tended to all executors and administrators residing out of the
jurisdiction
of Her Majesty's said Supreme Court of Hongkong whether it be or be
not intended to institute proceedings on the Equity side of the said Su-
preme Court and it shall be lawful to alter the language of the grant
prescribed by the said Statute so as to make it apply to grants made in
the said Supreme Court in its Probate Jurisdiction under this Ordinance:
33. After any grant of administration, no person shall have power -
to sue or prosecute any suit, or otherwise act as executor of the
deceased,
as to the personal estate comprised in or affected by such grant of ad-
ministration, until such administration shall have been recalled or
revoked.
34. Where before the revocation of any temporary administration
any proceedings at Law or in Equity have been commenced in the said
Supreme Court 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 administration which shall have been made consequent there-
upon, and that the proceedings shall be continued in the name of the new
executor of administrator in like manner as if the proceeding had been
originally commences by or against such new executor or administrator'
but.subject to such conditions and variations if any as the Court may
direct.:. '
Provisions of
88 Cieo. TTT.
c: 87 extend-
ed to all cases
of executors
and adminis-
trator resid-
ing out of
jurisdiction.
[* Tleirty-
crgltth.]
offer grant
of acrminis-
tration no
person to
have power
to sue as an
executor.
Revocation of
temporary
grants not to
prejudice ac-
tions or suits.
011DINANCE No. 8' oh' 1860:
Probate and Administration.
35. Where any probate or administration is revoked under this
Ordinance, all payments 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 snaking the same. and tile executor or
administrator who shall have acted under any such revoked probate or
administration may detain and reimburse himself in respect of any pay-
ments made by him which the person to whom probate or adillinistra-
tion, shall be afterwards granted might have lawfully made.
36. All persons making or permitting to be made any payment or
transfer bond fide upon any probate or letters of administration granted
ill
respect of the estate of any deceased person under the authority of this
Ordinance shall be indemnified and protected in so doing, notwithstand-
iltg any defect or circumstanc.- whatsoever affection the validity, of
such
,probate or letters of administration.
37. All non-contentious business pending in the Supreme Court at
the date of this Ordinance shall be deemed to have been commenced
under this Ordinance. And all acts executed under the authority of the
.said Court with reference to such business which would have been valid
if the hereby repealed sections of Ordinance No. G of 1845 were still in
operation shall be valid and all oaths sworn and bonds executed in man-
ner required by the said Court in reference to such business prior to the
date hereof' shall continue to have and be deemed to have had the same
force and effect in law as they would have had if sworn and executed in
pursuance of the provisions of this Ordinance, or of Ordinance No. 5 of
1858.
38. The Judge of the said Court shall have and exercise the same
power of altering and amending grants of probate and letters of admi-
nistration made before the passing of this Ordinance as he has had or
-exercised before the date hereof.
39. From and after the decease of any person dying intestate and
until letters of administration shall be granted in respect of his estate
and effects, the personal estate and effects of such deceased person shall
be vested in the Registrar of the said Supreme Court.
43. Every person other than the Official Administrator to whom
.any grant of administration shall be committed shall give a bond with
~if the Court shall require) one or more surety or sureties conditioned
Payments
underrevoked
probates or
administra-
tions to be
valid.
Persons ntah-
iug payment
upon probate
granted for
estate of de-
ceased person
to be indem-
nified.
Volt-contcn-
tious business
pending Lo-
be deemed
commenced
under this
Ordinance.
Power of
Judge to alter
grants of pro-
bate and let-
ters of admi-
nistration
made prior
to this Ordi-
nance.
1;2tween the
death of the
person de-
ceased and -
the grant,
the 1>roperty-
to vest in the
Registrar. -
Ad ministra-
ton to give
bonds.
Void or void-
reblo grant
of all
and letters
of acMniuic_
tratiori.
Fees to be
taken by
officers of
Court, &c:
ORDINANCE No. 8 of 1860.
Probate and Administration.
for duly collecting, getting in, and administering the personal estate of-
the deceased, which bond shall be in such form as the Judge shall f
tune to tune direct : Provided that it shall not be necessary for the
Superintendent of Police for the time be;nn applying for or obtaining
administration of the estates of policemen dying in the Colony as herein-
after provided for to give any such bond as aforesaid.
Amount or 41. Such bond shall be in a penalty of double the amount under
1'enalty of which the estate and effects of the deceased shall be sworn,
unless the--
Court shall in any case think fit to direct the same to be reduced, in
which case it shall be lawful for the Court so to do, and the Court may
also direct that more bonds than one shall be given so as to limit the
liability of clay surety to such amount as the Court shall think rea-
sonable.
42. All grants of probates and administrations made before the date-
of this Ordinance which may be void or voidable by reason only that the
same were made under Ordinance No. 6 of 184, and all acts or things
done in respect thereof shall be as valid as if the same had been made-
under Ordinance No. 5 of 1858 : Provided that any such grants of pib-
bate or administration shall not be made valid by this Ordinance when:
the same shall before the date hereof have been revoked or determined by
the Supreme Court to have been void; nor shall this Ordinance prejudice-
or affect any proceedings pending at the time of the Passing of this Ordi-
nance in which the validity of any such probate or administration shall
be in question : If the result of such pr oceedino, shall be to
invalidate-
the same, such probate or administration shall not be rendered valid by
this Ordinance and if such proceedings abate of become defective by
reason of the death of any party, any person who but for this Ordinance
would have any right by reason of the invalidity of such probate or, ad-
ministration shall retain such right and may commence proceedings for
enforcing the same within six calendar months after the death. of such
party.
43. The Chief Justice of the Supreme Court with the concurrence
of the Legislative Council shall as soon as conveniently may be after the
passing of this Ordinance fix a table or tables of fees to be taken by th&
officers of the Court in its Probate Jurisdiction and the proctors,
solicitors, and attornies practising therein, in respect of business under
this Ordinance, and of fees to be payable in respect of searches,
inspection,.
ORDINANCE No. 8 of 1860.
Probate and Administration.
and for copies of and extracts from records, wills, and other documents in
the custody or under the control of tile said Court, and the said Chief
Justice
with such concurrence as aforesaid is hereby empowered, from time to
time after this Ordinance shall come into operation, to add to, reduce,
alter, or amend such table or tables of fees, as may seem fit: Provided
that every such table of fees, and every addition, reduction, alteration,
or
amendment to, in, or of the same, shall be published in the Hongkong
Government Gazette, and no other fees than those specified and allowed
in such table of fees shall be demauded or taken by such officers, and
proctors, solicitors and attornies.
44. -Persons employed in the Police Force of this Colony under the
rank of Inspector and dying here whilst so employed shall not be deemed
to be within the meaning of the foregoing sections of this Ordinance ; but
the Superintendent of Police for the time being is hereby constituted the
Official Administrator of their estates and required to get in and
administer the same with the sanction of the Colonial Secretary, and
within one month after the decease of any such person to certify the same
and the amount in value of the estate and effects of such persons by
certificate under his hand to the Registrar of the Supreme Court for
registry in the said Court. And shall also pay over to the Colonial
Treasurer the balance of every such estate after payment of all lawful
claims : Provided that it shall be lawful for the Colonial Secretary upon
the application of the Superintendent of Police at any time to sign an
order upon the Colonial Treasurer for the payment of the whole or any
part of such balance.
45. NV here letters'of administration have been or shall have been
granted by the said Court the Official Administrator shall within one
month after receiving any money belonging to any estate to the amount
of one hundred dollars clear of all just allowances and deductions pay the
same into the bands of the Colonial Treasurer for the time being to the
credit of the said estate, unless the Chief Justice upon a written
statement
of .facts shall report it will be snore expedient for the said estate to
be
otherwise held or disposed of. And such Treasurer shall receive from
the Official Administrator as aforesaid all such sums of money as he
shall tender to him and shall carry the same to the credit of such estates
as the said Official Administrator shall specify giving him at the same
time a receipt for the specific sums so paid in, and whenever the said
a(lrntiii,.
tratiom to
deceased
Police
constables.
Payment of
money into
Ti-ectsary.
ORDINANCE No. 8 0F 1860.
Probate and r9dpzinistration.
Official Administrator shall have occasion to draw any sum of money out
of the bands of such Treasurer he shall apply by petition to the Chief
Justice at chambers for an order for the payment (hereof stating in such
petition the purpose for which such money is required. And such
'.Creasarer shall not pay over any movies which may have been paid into
his hands as aforesaid without such order.
'Official 46. The Official Administrator shall make out and furnish to the
Administra-
tor to make Judge and to the Colonial Secretary half yearly returns
according to the
half yearly form set outin the schedule hereunto annexed of estates vested
in him during
returns. the preceding half year, and he shall from time to tune pay into
the
hands of the Colonial Treasurer for the time beinn the balances rernaininb
in respect of each estate immediately after the same shall have been
closed.
[Section 47 added by Ordinance No. 20 of 1885 relating to the
administration
of the estates of persons who die at, sea in the course of oj'a voyage to
Hongkong.]
SCI3EDULD.
lieturn of estates of Intestates for the Half fear ending 18
NAME OF INTI:S-
TATI:.
hIcnakongr 111e (,;ay of 18
AMOUNT RE-
DI:DUCTIUNS BALANCE ON
crrvEn ON
ACCOUNT of r?orl Dzslsunsu- CLOSING Ac-
T~ arxNTS. COUNT.
TIM ESTATE.
DisrosAL OF
BALANCE.
Offlicial Administrator.
cTZ:.-See also Ordinances 1'0..9 of 1810, :Vos. 1 and 10 of 1886, :1'0.
13 of 1890.
[See Ords. No. 9 of 1870, and No. 10 of 1886.]
Preamble.
Repeal of certain sections of No. 6 1845.
Intrepretation of terms.
Testamentary jurisdiction to be exercised by the Supreme Court.
No. officer under this Ordinance to act as advocate, &c.
Seal of Court to be provided.
Power to examine witnesses.
As to production of deeds, &c.
Power to enforce orders.
Order to produce any instrument purporting to be testamentary.
Registrar, &c. to have power to administer oaths.
Commissioners.
Affidavits, &c. before whom to be made when persons making them reside in foreign parts.
Affidavits made in British dominions before whom to be sworn.
Penalty on forging or counterfeiting seals or signature.
Practice of the Court.
Mode of taking evidence in contentious matters.
Court may issue commissions or give orders for examination of witnesses abroad or who are unable to attend.
Rules of evidence to be observed as at common law.
Court may cause quwstions of fact to be tried by a jury.
Powers of the Court for the trial of questions by jury.
Question to be stated and the jury sworn to try it.
The Judeg may sit in Chambers.
Powers of Judge when sitting in Chambers.
Caveats.
Judge to cause calendars tobe made from time to time.
Registraar to transmit copies to certain offices.
Official copy of whole or part of a will may be obtained.
Administrations pendente lite.
Administration pending suit to apply to appeals.
Remuneration allowed to exeutors and administrators.
Executors renouncin probate.
Power as to appointment of administrator.
An executor not acting or not appearing to a citation to be treated as of he had renounced.
Provisions of 38 Geo. III. c. 87 extended to all cases of executors adn administrator residing out of jurisdiction. [* Tirty-eighth.]
After grant of administration no person to have power to sue as an executor.
Revocation of temporary grants not to prejudice actions or suits.
Payments under revoked probates or administrations to be valid.
Persons making payment upon probate granted for estate of deceased person to be indemnified.
Non-contentions business pending to be deemed commenced under this Ordinance.
Power of Judge to alter grants of probate and letters of administration made prior to this Ordinance.
Between the death of the person deceased and the grant, the property to vest in the Registrar.
Adiministrators to give bonds.
Amount of penalty of bond.
Voild or voidable grants of probates and letters of administration.
Fees to be taken by officers of Court, &c.
Administration to deceased Police constables.
Payment of money into Treasury.
Official Administrator to make half yearly returns.
Abstract
[See Ords. No. 9 of 1870, and No. 10 of 1886.]
Preamble.
Repeal of certain sections of No. 6 1845.
Intrepretation of terms.
Testamentary jurisdiction to be exercised by the Supreme Court.
No. officer under this Ordinance to act as advocate, &c.
Seal of Court to be provided.
Power to examine witnesses.
As to production of deeds, &c.
Power to enforce orders.
Order to produce any instrument purporting to be testamentary.
Registrar, &c. to have power to administer oaths.
Commissioners.
Affidavits, &c. before whom to be made when persons making them reside in foreign parts.
Affidavits made in British dominions before whom to be sworn.
Penalty on forging or counterfeiting seals or signature.
Practice of the Court.
Mode of taking evidence in contentious matters.
Court may issue commissions or give orders for examination of witnesses abroad or who are unable to attend.
Rules of evidence to be observed as at common law.
Court may cause quwstions of fact to be tried by a jury.
Powers of the Court for the trial of questions by jury.
Question to be stated and the jury sworn to try it.
The Judeg may sit in Chambers.
Powers of Judge when sitting in Chambers.
Caveats.
Judge to cause calendars tobe made from time to time.
Registraar to transmit copies to certain offices.
Official copy of whole or part of a will may be obtained.
Administrations pendente lite.
Administration pending suit to apply to appeals.
Remuneration allowed to exeutors and administrators.
Executors renouncin probate.
Power as to appointment of administrator.
An executor not acting or not appearing to a citation to be treated as of he had renounced.
Provisions of 38 Geo. III. c. 87 extended to all cases of executors adn administrator residing out of jurisdiction. [* Tirty-eighth.]
After grant of administration no person to have power to sue as an executor.
Revocation of temporary grants not to prejudice actions or suits.
Payments under revoked probates or administrations to be valid.
Persons making payment upon probate granted for estate of deceased person to be indemnified.
Non-contentions business pending to be deemed commenced under this Ordinance.
Power of Judge to alter grants of probate and letters of administration made prior to this Ordinance.
Between the death of the person deceased and the grant, the property to vest in the Registrar.
Adiministrators to give bonds.
Amount of penalty of bond.
Voild or voidable grants of probates and letters of administration.
Fees to be taken by officers of Court, &c.
Administration to deceased Police constables.
Payment of money into Treasury.
Official Administrator to make half yearly returns.
Preamble.
Repeal of certain sections of No. 6 1845.
Intrepretation of terms.
Testamentary jurisdiction to be exercised by the Supreme Court.
No. officer under this Ordinance to act as advocate, &c.
Seal of Court to be provided.
Power to examine witnesses.
As to production of deeds, &c.
Power to enforce orders.
Order to produce any instrument purporting to be testamentary.
Registrar, &c. to have power to administer oaths.
Commissioners.
Affidavits, &c. before whom to be made when persons making them reside in foreign parts.
Affidavits made in British dominions before whom to be sworn.
Penalty on forging or counterfeiting seals or signature.
Practice of the Court.
Mode of taking evidence in contentious matters.
Court may issue commissions or give orders for examination of witnesses abroad or who are unable to attend.
Rules of evidence to be observed as at common law.
Court may cause quwstions of fact to be tried by a jury.
Powers of the Court for the trial of questions by jury.
Question to be stated and the jury sworn to try it.
The Judeg may sit in Chambers.
Powers of Judge when sitting in Chambers.
Caveats.
Judge to cause calendars tobe made from time to time.
Registraar to transmit copies to certain offices.
Official copy of whole or part of a will may be obtained.
Administrations pendente lite.
Administration pending suit to apply to appeals.
Remuneration allowed to exeutors and administrators.
Executors renouncin probate.
Power as to appointment of administrator.
An executor not acting or not appearing to a citation to be treated as of he had renounced.
Provisions of 38 Geo. III. c. 87 extended to all cases of executors adn administrator residing out of jurisdiction. [* Tirty-eighth.]
After grant of administration no person to have power to sue as an executor.
Revocation of temporary grants not to prejudice actions or suits.
Payments under revoked probates or administrations to be valid.
Persons making payment upon probate granted for estate of deceased person to be indemnified.
Non-contentions business pending to be deemed commenced under this Ordinance.
Power of Judge to alter grants of probate and letters of administration made prior to this Ordinance.
Between the death of the person deceased and the grant, the property to vest in the Registrar.
Adiministrators to give bonds.
Amount of penalty of bond.
Voild or voidable grants of probates and letters of administration.
Fees to be taken by officers of Court, &c.
Administration to deceased Police constables.
Payment of money into Treasury.
Official Administrator to make half yearly returns.
Identifier
https://oelawhk.lib.hku.hk/items/show/148
Edition
1890
Volume
v1
Cap / Ordinance No.
No. 8 of 1860
Number of Pages
13
Files
Collection
Historical Laws of Hong Kong Online
Citation
“PROBATE AND ADMINISTRATION ORDINANCE,” Historical Laws of Hong Kong Online, accessed January 22, 2025, https://oelawhk.lib.hku.hk/items/show/148.
