INTESTATES' ESTATES ORDINANCE

INTESTATES' ESTATES ORDINANCE

LAWS OF HONG KONG

INTESTATES' ESTATES ORDINANCE

CHAPTER 73





CHAPTER 73

INTESTATES' ESTATES ORDINANCE

ARRANGEMENT OF SECTIONS

Section Page

1. Short title... ... ... ... ... ... ... ... ... ... ... ... ... 2
2. Interpretation... ... ... ... ... ... ... ... ... ... ... ... ... ...
2
3. Valid marriage ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3
4. Succession to estate on intestacy ... ... ... ... ... ... ... ... ... ... 3
4A. Judicially separated spouses not entitled to claim in intestacy of each other ... 5
5. Statutory trusts in favour of issue and other classes of relatives of intestate ... 5

6.Powers of personal representatives in respect of sums payable to surviving husband
or wife ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7

7. Right of surviving spouse to require chattels to be appropriated ... ... ... ... 7
8. Application to cases of partial intestacy ... ... ... ... ... ... ... ... 8
9. Personal representative trustee of residuary estate ... ... ... ... ... ... 9

10. Construction of documents ... ... ... ... ... ... ... ... ... ... ... ... 9

11. Land to which Part 11 of the New Territories Ordinance applies ... ... ... ... 9

12. Application of Ordinance ... ... ... ... ... ... ... ... ... ... ... ... 9

13. Transitional provisions for concubinage ... ... ... ... ... ... ... ... ... 10

Schedule ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 10





CHAPTER 73

INTESTATEYESTATES

To amend the law relating to the distribution of intestates' estates.

[7 October 1971.]

1. This Ordinance may be cited as the Intestates' Estates
Ordinance.

2. (1) In this Ordinance, unless the context otherwise requires

'court' means the High Court;

,,estate' means real and personal estate;

'husband' and 'wife', in relation to a person, mean a husband or wife
of that person by a valid marriage;

'intestate' includes a person who leaves a will but dies intestate as to
some beneficial interest in his estate;

'personal chattels' means motor cars and accessories, garden effects,
horses, domestic animals, plate, plated articles, linen, china, glass,
books, pictures, prints, furniture, jewellery, antiques, curios,
articles of household or personal use or ornament, musical and
scientific instruments and apparatus, wines, liquors and
consumable stores; but does not include any chattels used
exclusively or principally at the death of the intestate for business
or professional purposes nor money or securities for money;

'residuary estate' means every beneficial interest in an estate as to
which a person dies intestate, after payment of all such funeral and
administration expenses, debts and other liabilities as are properly
payable thereout, which (otherwise than in right of a power of
appointment) he could, if of full age and capacity, have disposed
of by his will.

(2) References in this Ordinance to a child or issue of any person
shall mean

(a)a child of a valid marriage to which that person was a party;

(b)if that person is a female, a child of a valid marriage to which
her last husband and another female were parties,

and(Amended, 49 of 1971, s. 2)





(c) a child adopted by that person-

(i) in pursuance of an adoption order made under the
Adoption Ordinance; or

(ii) by an adoption to which section 17 of the Adoption
Ordinance applies.

(3) References in this Ordinance to a child or issue living at the
death of any person include a child or issue en ventre sa mere at the
death.

(4) References in this Ordinance to a brother or sister of a person
mean a brother or sister who is a child of the same father as that person.

3. For the purposes of this Ordinance, 'valid marriage' means

(a)a marriage celebrated or contracted in accordance with the
provisions of the Marriage Ordinance;

(b)a modern marriage validated by the Marriage Reform
Ordinance;

(c)a customary marriage declared to be valid by the Marriage
Reform Ordinance;

(d)a marriage celebrated or contracted outside Hong Kong in
accordance with the law in force at the time and in the place
where the marriage was performed.

4. (1) The residuary estate of an intestate shall be distributed in the
manner or be held on the trusts mentioned in this section.

(2) If the intestate leaves a husband or wife and leaves-

(a) no issue; and

(b)no parent, or brother or sister, or issue of a brother or sister,

the residuary estate shall be held in trust for the surviving husband or
wife absolutely.

(3) If the intestate leaves a husband or wife and issue, whether or
not persons mentioned in subsection (2)(b) also survive, the residuary
estate of the intestate shall stand charged with the payment of a net sum
of $50,000, free of death duties and costs, to the surviving husband or
wife with interest thereon from the date of the death at the rate of $5 per
centum per annum until paid or appropriated, and, subject to providing
for that sum and the interest thereon, the residuary estate shall be held-
(Amended, L.N. 220183)

(a)as to one half, in trust for the surviving husband or wife
absolutely; and

(b)as to the other half, on the statutory trusts for the issue of the
intestate.





(4) If the intestate leaves no issue but does leave a husband or wife
and one or more of the following, that is to say, a parent, a brother or
sister, or issue of a brother or sister, the residuary estate of the intestate
shall stand charged with the payment of a net sum of $200,000, free of
death duties and costs, to the surviving husband or wife with interest
thereon from the date of the death at the rate of $5 per centum per
annum until paid or appropriated, and, subject to providing for that sum
and the interest thereon, the residuary estate shall be held- (Amended,
L.N. 220/83)

(a)as to one half, in trust for the surviving husband or wife
absolutely; and

(b) as to the other half-

(i) where the intestate leaves one parent or both parents
(whether or not brothers or sisters of the intestate or their
issue also survive) in trust for the parent absolutely or, as the
case may be, for the two parents in equal shares absolutely;
or

(ii) where the intestate leaves no parent, on the statutory
trusts for the brothers and sisters of the intestate.

(5) If the intestate leaves issue but no husband or wife the
residuary estate of the intestate shall be held on the statutory trusts for
the issue of the intestate.

(6) If the intestate leaves no husband or wife and no issue but
both parents, then the residuary estate of the intestate shall be held in
trust for the father and mother in equal shares absolutely.

(7) If the intestate leaves no husband or wife and no issue but one
parent, then the residuary estate of the intestate shall be held in trust
for the surviving father or mother absolutely.

(8) If the intestate leaves no husband or wife and no issue and no
parent, then the residuary estate of the intestate shall be held in trust for
the following persons living at the death of the intestate, and in the
following order and manner, namely

firstly, on the statutory trusts for the brothers and sisters of
the intestate; but if no person takes an absolutely vested interest
under such trusts; then

secondly, for the grandparents of the intestate and, if more
than one survive the intestate, in equal shares; but if there is no
member of this class; then

thirdly, on the statutory trusts for the uncles and aunts of the
intestate, who are brothers or sisters of a parent of the intestate.

(9) In default of any person taking an absolute interest under the
foregoing provisions, the residuary estate of the intestate shall belong
to the Crown as bona vacantia and the Crown may (without prejudice
to any other powers), out of the whole or any part of the property
devolving on it, provide for dependants, whether kindred or not, of the
intestate, and other persons for whom the intestate might reasonably
have been expected to make provision.

cl





(10) A husband and wife shall for all purposes of distribution or
division under the foregoing provisions of this section be treated as 2
persons.

(11) Where the intestate and the intestate's husband or wife
have died in circumstances rendering it uncertain that one of them,
or which of them, survived the other this section shall have effect as
respects the intestate as if the husband or wife had not survived the
intestate. (Amended, 62 of 1984, s. 11)

(12) The interest payable on the net sum of $50,000 or such lesser
sum, as the case may be, payable to the surviving husband or wife
under subsection (3) and the interest payable on the net sum of $200,000
or such lesser sum, as the case may be, payable to the surviving
husband or wife under subsection (4) shall be primarily payable out of
income.

(13) The Legislative Council may, from time to time, by resolution
vary either or both of the net sums charged by subsections (3) and (4),
and any reference in this Ordinance, or in any other Ordinance, to either
of such net sums shall have effect as a reference to the corresponding
net sum as varied under this subsection.



(14) Any resolutin under subsection (13) varying the amount of
either of such net sums shall have effect in relation to the estate of any
person dying after the coming into force of the resolution.

4A. (1) If while a decree of judicial separation is in force and the
separation is continuing either of the parties whose marriage is the
subject of the decree dies after 1 July 1972 intestate as respects all or
any of his or her real or personal property, the property of that party as
respects which he or she died intestate shall devolve as if the other
party to the marriage had then been dead.

(2) Notwithstanding anything in section 5(a) of the Separation and
Maintenance Orders Ordinance, a provision in force in an order made, or
having effect as if made, under that section that a party to a marriage be
no longer bound to cohabit with the other party to the marriage shall
not have effect as a decree of judicial separation on the ground of
cruelty for the purposes of this section.

(Added, 39 of 1972, s. 33(3)

5. (1) Where under this Ordinance the residuary estate of an
intestate, or any part thereof, is directed to be held on the statutory
trusts for the issue of the intestate, the same shall be held upon the
following trusts, namely

(a)in trust, in equal shares if more than one, for all or any of the
children or child of the intestate, living at the death of the
intestate, who attain the the age of 21 years or
marry under that age, and for all or any of the issue living at the death of
the intestate who attain the age of 21 years or marry under age
that age of any child of the intestate who predeceases the
intestate, such issue to take through all degrees, according
to their stocks, in equal shares if more than one, the share





which their parent would have taken if living at the death of
the intestate, but no issue shall take whose parent is living at
the death of the intestate and is so capable of taking;

(b)the statutory power of advancement, and the statutory
provisions which relate to maintenance and accumulation of
surplus income, shall apply, but when an infant marries such
infant shall be entitled to give valid receipts for the income of
the infant's share or interest;

(c)where the property held on the statutory trusts for the issue is
divisible into shares, then any money or property which, by
way of advancement or on the marriage of a child of the
intestate, has been paid to such child by the intestate or
settled by the intestate for the benefit of such child (including
any life or lesser interest and including property covenantal to
be paid or settled) shall, subject to any contrary intention
expressed or appearing from the circumstances of the case, be
taken as being so paid or settled in or towards satisfaction of
the share of such child or the share which each child would
have taken if living at the death of the intestate, and shall be
brought into account, at a valuation (the value to be reckoned
as at the death of the intestate), 'In accordance with the
requirements of the personal representatives;

(d)the personal representatives may permit any infant
contingently interested to have the use and enjoyment of any
personal chattels in such manner and subject to such
conditions, if any, as the personal representatives may
consider reasonable, and without being liable to account for
any consequential loss.

(2) If the trusts in favour of the issue of the intestate fail by reason
of no child or other issue attaining an absolutely vested interest

(a)the residuary estate of the intestate and the income thereof
and all statutory accumulations, if any, of the income thereof,
or so much thereof as may not have been paid or applied
under any power affecting the same, shall go, devolve and be
held under the provisions of this Ordinance as if the intestate
had died without leaving issue living at the death of the
intestate;

(b)references in this Ordinance to the intestate leaving no issue'
shall be construed as leaving no issue who attain an
absolutely vested interest';

(c)references in this Ordinance to the intestate 'leaving issue'
or leaving a child or other issue' shall be construed as
'leaving issue who attain an absolutely vested interest'.

(3) Where under this Ordinance the residuary estate of an intestate
or any part thereof is directed to be held on the statutory





trusts for any class of relatives of the intestate, other than issue of the
intestate, the same shall be held on trusts corresponding to the
statutory trusts for the issue of the intestate (other than the provi-
sion for bringing any money or property into account) as if such
trusts (other than as aforesaid) were repeated with the substitution
of references to the members or member of that class for references
to the children or child of the intestate.
(4) References in section 4(2), (3) or (4) to the intestate leaving,
or not leaving, a member of the class consisting of brothers or sisters
of the intestate and issue of brothers or sisters of the intestate shall
be construed as references to the intestate leaving, or not leaving, a
member of that class who attains an absolutely vested interest.
(5) Where the trusts in favour of any class of relatives of the
intestate, other than issue of the intestate, fail by reason of no
member of that class attaining an absolutely vested interest, the
residuary estate of the intestate and the income thereof and all
statutory accumulations, if any, of the income thereof, or so much
thereof as may not have been paid or applied under any power
affecting the same, shall, by virtue of subsections (2) and (3) of this
section, go, devolve and be held under the provisions of this
Ordinance as if the intestate had died without leaving any member
of that class, or issue of any member of that class, living at the death
of the intestate.

6. The personal representatives may raise the net sum of
$50,000 or $200,000, as the case may be, or any part thereof and the
interest thereon payable to the surviving husband or wife of the
intestate on the security of the whole or any part of the residuary
estate of the intestate, so far as that estate may be sufficient for the
purpose or the said sum and interest thereon may not have been
satisfied by an appropriation under the statutory power available in
that behalf under section 7.

7. (1) Where the residuary estate of an intestate stands
charged with the payment of the net sum of 550,000 or $200,000, as
the case may be, or the said sum as diminished in accordance with
section 8, to the surviving husband or wife, the surviving husband or
wife may in writing require the personal representatives to appro-
priate any personal chattel in or towards the satisfaction of all or
part of the said net sum of $50,000 or $200,000, as the case may be,
or the said sum so diminished, and the interest thereon.
(2) A right conferred by this section shall not be exercisable
after the expiration of 6 months from the first grant of administra-
tion to the estate of the intestate.
(3) For the purposes of such appropriation, the personal
representatives may ascertain and fix the values of the respective
personal chattels to be appropriated and may for that purpose
employ a duly qualified valuer in any case where such employment
may be necessary and may make any transfer of the personal
chattels appropriated which may be requisite for giving effect to the
appropriation.





(4) An appropriation shall not be made under this section unless
notice of the intended appropriation has been served on all parties
entitled to a share in the residuary estate (other than persons who may
come into existence after the time of the appropriation or who cannot
after reasonable inquiry be found or ascertained at that time) anyone of
which parties may within 6 weeks from the service of such notice on him
apply to the court to prohibit the appropriation.

(5) Unless the court on an application made to it under subsection
(4) otherwise directs, an appropriation made pursuant to this section
shall bind all persons interested in the residuary estate of the intestate
under this Ordinance. (Amended, L.N. 171/74)

(6) Where the surviving husband or wife is a personal
representative the powers conferred by this section may be exercised in
his or her own favour.

(7) An appropriation made under this section shall be satisfaction,
to the amount of the value of the personal chattels appropriated, of the
net sum of $50,000 or $200,000, as the case may be. payable to the
surviving husband or wife or that sum diminished in accordance with
section 8, and interest on that sum.

(8) If the surviving husband or wife is a person of unsound mind
the right under this section may be exercised on behalf of such
husband or wife by the guardian or committee of such husband or wife.

(9) The exercise of the right under this section by a surviving
husband or wife who is an infant shall be as valid and binding as it
would be if the surviving husband or wife were of age.

8. (1) Where any person dies leaving a will effectively disposing of
part of his property or any interest therein, this Ordinance shall have
effect as respects the part of his property, not so disposed of subject to
the provisions contained in the will and subject further to the following
modifications:

(a)where the deceased leaves a husband or wife who acquires
any beneficial interests under the will of the deceased (other
than personal chattels specifically bequeathed) the references
in this Ordinance to the net sum of $50,000 or $200,000, as the
case may be, payable to a surviving husband or wife, and to
interest on that sum, shall be taken as references to the said
sum diminished by the value at the date of death of the said
beneficial interests, and to interest on that sum as so
diminished and, accordingly, where the said value exceeds the
said sum, this Ordinance shall have effect as if references to
the said sum, and interest thereon, were omitted;

(b)the requirements of section 5 as to bringing property into
account shall apply to any beneficial interests acquired by
any issue of the deceased under the will of the deceased, but
not to beneficial interests so acquired by any other person.





(2) References in subsection (1) to beneficial interests acquired
under a will shall be construed as including a reference to a beneficial
interest acquired by virtue of the exercise by the will of a general power
of appointment, but not of a special power of appointment.

(3) For the purposes of subsection (1) the personal representatives
shall employ a duly qualified valuer in any case where such employment
may be necessary.

9. Subject to his rights and powers for the purposes of
administration the personal representative of any person dying intestate
shall be a trustee for the persons beneficially entitled under this
Ordinance in respect of the residuary estate of the deceased unless it
appears from the will, if any, of the deceased that he is to take the
residuary estate beneficially.

10. (1) References to any Statues of Distribution in an instrument inter
vivos made, or in a will coming into operation, after the commencement
of this Ordinance shall, unless the context otherwise requires. be
construed as references to this Ordinance; and references in such an
instrument or will to statutory next-of-kin shall, unless the context
otherwise requires, be construed as referring to the persons who take
beneficially on an intestacy under this Ordinance.

(2) Trusts declared by reference to any Statutes of Distribution in
an instrument inter vivos made, or in a will coming into operation, before
the commencement of this Ordinance shall, unless the contrary thereby
appears, be construed as referring to the law relating to the distribution
of effects of intestates which was in force immediately before the
commencement of this Ordinance.

11. (1) Nothing in this Ordinance shall be taken to affect the
application of the provisions of Part 11 of the New Territories Ordinance
to land to which Part 11 of that Ordinance applies and which has not
been exempted by the Governor under section 7(2) or (3) of that
Ordinance from the provisions of Part 11 of that Ordinance and the said
provisions shall continue to apply to such land to the same extent and
with the same effect as if this Ordinance had not been enacted.

(2) Land to which this section applies shall continue to devolve
upon intestacy in like manner as it would have devolved if this
Ordinance had not been passed.

(3) In this section 'land' has the meaning attaching to it under
section 2 of the New Territories Ordinance.

12. This Ordinance shall have effect as regards any person dying
intestate after the commencement of this Ordinance,





13. (1) The provisions of the Schedule shall have effect with regard
to a union of concubinage entered before the appointed day under the
Marriage Reform Ordinance.

(2) In this section and in the Schedule, 'union of concubinage'
means a union of concubinage, entered by a male partner and a female
partner before the appointed day under the Marriage Reform Ordinance,
under which union the female partner has. during the lifetime of the male
partner, been accepted by his wife as his concubine and recognized as
such by his family generally.

SCHEDULE [s. 13.1

1. In this Schedule

'party to a union of concubinage' means a tsip or a male partner of such a union:

means the female partner of a union of concubinage.

Amended 49 of 1971. s. 3)

2. (1) A child of a union of concubinage shall be regarded for the purposes of
the Ordinance as the child of a valid marriage.

(2) The reference in section 2(2)(b) to 'husband' shall be construed as including
a reference to the male partner of a union of concubinage.

(Replaced, 49 of 1971, s. 3)

3. The Ordinance shall apply to a party to a union of concubinage to the
extent set out in paragraph 4 and section 4 shall be modified accordingly.



4. (1) Where the intestate is at the time of his death a party to one union of
concubinage and the residuary estate is held on trust for the surviving wife
absolutely in accordance with section 4(2), one third of the residuary estate shall be
held on trust for the tsip of that union of concubinage absolutely.

(2) Where the intestate is at the time of his death a party to more than one
union of concubinage and the residuary estate is held on trust for the surviving wife
absolutely in accordance with section 4(2), one third of the residuary estate shall be
held on trust for such of his tsip who survive him, in equal shares absolutely.

(3) Where the intestate is at the time of his death a party to one union of
concubinage and the residuary estate is held as to one half on trust for the
surviving wife absolutely in accordance with section 4(3), one third of the said half
shall be held on trust to pay the income therefrom to the tsip of that union of
concubinage during her lifetime.

(4) Where the intestate is at the time of his death a party to more than one
union of concubinage and the residuary estate is held as to one half on trust for the
surviving wife absolutely in accordance with section 4(3), one third of the said half shall be held
on trust to pay the income therefrom to such of his tsip who survive him, and to
the survivors of them in equal shares.

(5) Where the intestate is at the time of his death a party to one union of
concubinage and the residuary estate is held as to one half on trust in accordance
with section 4(4)(b), one third of the said half shall be held on trust for the tsip of
the union of concubinage absolutely.

(6) Where the intestate is at the lime of his death a party to more than one
union of concubinage and the residuary estate is held as to one half on trust in
accordance with section 4(4)(b). one third of the said half share shall be held on
trust for such of his tsips who survive him in equal shares absolutely.

(7) Where the intestate is at the time of death a party to one union of
concubinage and the residuary estate is held on the statutory, trusts for the
intestate's issue in accordance with section 4(5), one third of the residuary estate
shall be held on trust to pay the income therefrom to the surviving party to
that union of concubinage during his or her lifetime.





(8) Where the intestate is at the time of death a party to more than one union
of concubinage and the residuary estate is held on the statutory trusts for his issue
in accordance with section 4(5), one third of the residuary estate shall be held on
trust to pay the income therefrom to such of his tsips who survive him, and to the
survivors of them, in equal shares.

(9) Where the intestate is at the time of death a party to one union of
concubinage and the residuary estate is held on trust in accordance with section
4(6), (7), (8) or (9), one third of the residuary estate shall be held on trust for the
surviving party of the union of concubinage absolutely.

(10) Where the intestate is at the time of his death a party to more than one
union of concubinage and the residuary estate is held on trust in accordance with
section 4(6), (7), (8) or (9), one third of the residuary estate shall be held on trust
for such of his tsips who survive him in equal shares absolutely.

(11) Reference to a husband or wife in section 4(10) and (11) shall be deemed
to include references to a party to a union of concubinage.

(12) The entitlement under sub-paragraphs (3), (4), (7) and (8) of a tsip to the
income from a share in an intestate's estate shall thereupon cease if she marries or
commits an act of sexual intercourse.
Originally 1 of 1971. 49 of 1971. 39 of 1972. L.N. 171/74. L.N. 220/83. 62 of 1984. L.N. 122/71. Short title. Interpretation. 1925 c. 23, s. 55(1). 1925 c. 23, s. 55(1). (Cap. 290.) 1925 c. 23, s. 55(2). Valid marriage. (Cap. 181.) (Cap. 178.) Succession to estate on intestacy. 1925 c. 23, s. 46. Judicially separated spouses not entitled to claim in intestacy of each other. 1970 c. 45, s. 40. (Cap. 16.) Statutory trusts in favour of issue and other classes of relatives of intestate. 1925 c. 23, s. 47. Powers of personal representatives in respect of sums payable to surviving husband or wife. 1925 c. 23, s. 48(2). Right of surviving spouse to require chattels to be appropriated. Application to cases of partial intestacy. 1925 c. 23, s. 49. Personal representative trustee of residuary estate. 1830 c. 40, s. 1. Construction of documents. 1925 c. 23, s. 50. Land to which Part II of the New Territories Ordinance applies. (Cap. 97.) Application of Ordinance. Transitional provisions for concubinage. Schedule. (Cap. 178.) Interpretation. Application of Ordinance to child of union of concubinage. Application of Ordinance to party to union of concubinage. Benefits of tsip or male partner.

Originally 1 of 1971. 49 of 1971. 39 of 1972. L.N. 171/74. L.N. 220/83. 62 of 1984. L.N. 122/71. Short title. Interpretation. 1925 c. 23, s. 55(1). 1925 c. 23, s. 55(1). (Cap. 290.) 1925 c. 23, s. 55(2). Valid marriage. (Cap. 181.) (Cap. 178.) Succession to estate on intestacy. 1925 c. 23, s. 46. Judicially separated spouses not entitled to claim in intestacy of each other. 1970 c. 45, s. 40. (Cap. 16.) Statutory trusts in favour of issue and other classes of relatives of intestate. 1925 c. 23, s. 47. Powers of personal representatives in respect of sums payable to surviving husband or wife. 1925 c. 23, s. 48(2). Right of surviving spouse to require chattels to be appropriated. Application to cases of partial intestacy. 1925 c. 23, s. 49. Personal representative trustee of residuary estate. 1830 c. 40, s. 1. Construction of documents. 1925 c. 23, s. 50. Land to which Part II of the New Territories Ordinance applies. (Cap. 97.) Application of Ordinance. Transitional provisions for concubinage. Schedule. (Cap. 178.) Interpretation. Application of Ordinance to child of union of concubinage. Application of Ordinance to party to union of concubinage. Benefits of tsip or male partner.

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