DECEASED'S FAMILY MAINTENANCE ORDINANCE

DECEASED'S FAMILY MAINTENANCE ORDINANCE

LAWS OF HONG KONG

DECEASED'S FAMILY MAINTENANCE

ORDINANCE

CHAPTER 129





CHAPTER 129.

DECEASED'S FAMILY MAINTENANCE ORDINANCE.

ARRANGEMENT OF SECTIONS.

Section. Page

1. Short title ... ... ... ... ... ... ... ... ... ... ... ... 2

2. Interpretation ... ... ... ... ... ... ... ... ... ... ... ... 2

3. Valid marriage ... ... ... ... ... ... ... 1 ... ... ... ... ... 3

4.Power for court to order payment out of net estate of deceased for benefit
of dependant ... ... . ... ... ... .. ... ... ... ... ... 3

5.Orders for maintenance of surviving party to void marriage from estate
of other party ... ... ... ... .. ... ... ... . . ... ... ... ... 4

6. Time within which application must be made ... ... ... ... ... ... ... 4

7. Matters to be considered by the court ...
... ... ... 4

8. Effect and form of order ... ... ... ... ... ... ... ... ... ... ... 5

9. Liability for payment ... ... ... ... ... ... ... ... ... ... ... ... 6

10. Power of court to release part of estate ... . ... ... ... ... ... 6

11. Interim orders ... ... ... ... ... ... ... ... ... ... ... ... ... 6

1 Discharge and variation of orders and additional provision ... ... ... ... 7

13. Restrictions on dealings with provisions for maintenance ...
8

14. Additional provisions as to orders under this Ordinance ...
... 8

15.Dependant to be deemed a person interested for purposes of grant of
administration ... ... ... ... ... ... ... ... ... ... ... ... ... 8

16. Rules, etc. ... ... ... ... ... ... . ... ... ...

... ... ... 8

17. Transitional provisions for concubinage ... ... ... ... ... ... 9

Schedule ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9





CHAPTER 129.

DECEASED'S FAMILY MAINTENANCE.

To provide for maintenance of certain dependants out of the estates of
deceased persons.

[7th October, 1971.]

1. This Ordinance may be cited as the Deceased's Family
Maintenance Ordinance.

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

.,court' means the Supreme Court;

'death duties- means estate duty under the Estate Duty Ordinance and
every other duty leviable or payable on death;

'dependant', in relation to a deceased person, means

(a) a wife or husband of the deceased by a valid marriage;

(b)a daughter of the deceased by a valid marriage who has not
been married;

(c) an infant son of the deceased by a valid marriage;

(d)a son of the deceased by a valid marriage who is. by reason of
some mental or physical disability, incapable of maintaining
himself; and

(e)a parent of the deceased substantially maintained by him
immediately before his death:

---son-and 'daughter' respectively, in relation to a deceased person,
mean

(a)a male or female child of a valid marriage to which the deceased
was a party;

(b) a male or female child adopted by the deceased-

(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;

(c) a male or female child of the deceased by a valid marriage
c

en ventre sa mere at the time of the death of the deceased;

---will-includes codicil and any other testamentary document.

(2) In this Ordinance 'net estate' means all the property of which a
deceased person had power to dispose of by his will (otherwise than by
virtue of a special power of appointment) less the amount of his funeral,
testamentary and administration expenses, debts and liabilities and
death duties payable out of his estate on his death, but does not include
land to which Part 11 of the New Territories Ordinance applies and which
has not been exempted by the Governor under subsection (2) or (3) of
section 7 of that Ordinance from the provisions of that Ordinance.





3. For the purpose 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) Where, after the commencement of this Ordinance, a person dies
leaving a dependant and the court on application made by or on behalf of that
dependant is of opinion that the disposition of the deceased's estate effected by
his will, or the law relating to intestacy, or the combination of his will and that
law, is not such as to make reasonable provision for the maintenance of that
dependant, the court may order that such reasonable provision as the court
thinks fit shall, subject to such conditions or restrictions, if any, as the court
may impose, be made out of the deceased's net estate for the maintenance of that
dependant:

Provided that no application shall be made to the court by or on behalf of
any person in any case where the disposition of the deceased's estate effected as
aforesaid is such that the surviving spouse is entitled to not less than two-thirds
of the income of the net estate and where the only other dependant or
dependants, if any, is or are a child or children of the surviving spouse.

(2) The provision for maintenance to be made by an order shall, subject to
the provisions of subsection (4), be made by way of periodical payments and
the order shall provide for their termination not later than

(a) in the case of a wife or husband, her or his remarriage;

(b)in the case of a daughter who has not been married, her marriage;

(c) in the case of an infant son, his attaining the
age of twenty-one years

(d)in the case of a son under disability, the cesser of his disability;

(e) in the case of a parent, her or his subsequent marriage,

or, in any case, his or her earlier death.

(3) Periodical payments made under subsection (2) to any one dependant
shall not be at an annual rate which exceeds the annual income of the net estate,
and, where payments are so made to more than one dependant in respect of the
same period, the aggregate of the annual rates at which those payments are made
shall not exceed the annual income of the net estate.





(4) The court may, if it sees fit, make an order providing for maintenance
to be made wholly or in part by way of a lump sum payment.

5. (1) Where a person dies in Hong Kong after the 6th October 1971 and is
survived by someone (hereafter referred to as 'the survivor') who, whether
before or after that date, had in good faith entered into a void marriage with the
deceased, then subject to subsections (2) and (3) the survivor shall be treated
for purposes of this Ordinance as a dependant of the deceased.

(2) An order shall not be made under this Ordinance in favour of the
survivor unless the court is satisfied that it would have been reasonable for the
deceased to make provision for the survivor's maintenance; and if an order 'is so
made requiring provision for the survivor's maintenance by .vay of periodical
payments, the order shall provide for their termination not later than the
survivor's death and, if the survivor remarries, not later than the remarriage.

(3) This section shall not apply if the marriage of the deceased and the
survivor was dissolved or annulled during the deceased's lifetime and the
dissolution or annulment is recognized by the law of Hong Kong, or if the
survivor has before the making of the order entered into a later marriage.

(4) It is hereby, declared that the reference in subsection (2) to remarriage
and the reference in subsection (3) to a later marriage include references to a
marriage which is by la,,\ void or voidable. (Added, 35 of 1971. Schedule)

6. Except as provided by section 12, an application under this Ordinance
shall not. without the permission of the court, be made after the end of the
period of six months from the date on which representation in regard to the
estate of the deceased is first taken out.

7. (1) On an application made- tinder this Ordinance the court shall have
regard

(a)to any past, present, or future capital of the dependant to whom the
application relates and to any income of that dependant from any
source;

(b)to the conduct of that dependant in\ relation to the deceased and
otherwise.

(e) to the interests of other dependants; and

(d)to any other matter or thing which, in the circumstances of the case,
the court may consider relevant or material in relation to that
dependant or to persons interested in the estate of the deceased, or
otherwise.

(2) The court shall also, on any such application, have regard to the
deceased's reasons, so far as ascertainable, for making the dispositions made by
his will, if any, or for refraining from dis





posing by will of his estate or part of his estate, or for not making any
provision, or any further provision,' as the case may be, for a dependant,
and the court may accept such evidence of those reasons as it considers
sufficient including any statement in writing signed by the deceased and
dated, so, however, that in estimating the weight, if any, to be attached
to any such statement the court shall have regard to all the
circumstances from which any inference can reasonably be drawn as to
the accuracy or otherwise of the statement.

(3) In determining whether, and in what way, and as from what date,
provision for maintenance ought to be made by an order the court shall
have regard to the nature of the property representing the net estate of
the deceased and shall not order any such provision to be made as
would necessitate a realization that would be improvident having regard
to the interests of the dependants of the deceased and of the person
who, apart from the order, would be entitled to that property or to be
maintained out of the deceased's estate.

(4) The court in considering for the purposes of section 4 whether
the disposition of the deceased's estate effected by the law relating to
intestacy, or by the combination of the deceased's will and that law,
makes reasonable provision for the maintenance of a dependant shall
not be bound to assume that the law relating to intestacy makes
reasonable provision in all cases.

8. (1) Where an order is made under this Ordinance, then for all
purposes, including the purposes of the enactments relating to death
duties, the will or the law relating to intestacy, or both the will and the
law relating to intestacy, as the case may be, shall have effect, and shall
be deemed to have had effect as from the date of the deceased's death,
subject to such variations as may be specified in the order for the
purpose of giving effect to the provision for maintenance thereby made.

(2) An order made under this Ordinance providing for maintenance
by way of periodical payments may provide for payments of a specified
amount, or for payments equal to the whole or part of the income of the
net estate or of the income of any part to be set aside or appropriated
under this Ordinance of the net estate, or may provide for the amount of
the payments or any of them to be determined in any other way which
the court thinks fit.

(3) The court may give such consequential directions as it thinks fit
for the purpose of giving effect to an order made under this Ordinance,
but no larger part of the net estate shall be set aside or appropriated to
answer by the income thereof the provision for maintenance thereby
made than such a part as, at the date of the order, is sufficient to
produce by the income thereof the amount of the said provision.





9. (1) If a deceased person dies leaving net estate situate in the
Colony such net estate shall, whether the deceased at the time of his
death was domiciled in the Colony or outside the Colony, be liable in
accordance with the provisions of this Ordinance for the payment of any
provision for maintenance ordered to be made under this Ordinance out
of the net estate of the deceased as if the deceased at the time of his
death had been domiciled in the Colony.

(2) The liability for the payment of any provision for maintenance
ordered to be made under this Ordinance shall, unless the court
otherwise orders, fall rateably upon the net estate of the deceased.

(3) The court may exonerate any part of the deceased's net estate
from liability for the payment or payments for maintenance ordered to be
made under this Ordinance after hearing such of the parties who may be
affected by the exoneration as it thinks necessary, and may for that
purpose direct any personal representative to represent, or appoint any
person to represent, any such party.

10. (1) On application at any time by or on behalf of a person
interested, whether beneficially or as trustee, in any property set
aside or appropriated to answer by the income thereof any provision
for maintenance ordered to be made under this Ordinance. the court
may fix a periodical or lump sum which that person may pay to
represent, or in commutation of, such proportion of the provision
as falls upon that property, and may order that on such security as
the court thinks fit being given for the payment of the periodical
sum or on payment of the lump sum, as the case may be, that
property shall be freed from all liability for the provision for
maintenance.

(2) The court may give such consequential directions as it thinks fit
for the purpose of giving effect to an order made under this section,
including directions as to whom the lump sum shall be paid and as to
the manner in which it shall be invested for the benefit of the person to
whom the commuted payment was payable.

11. (1) Where on an application for maintenance under this
Ordinance it appears to the court

(a)that the applicant is in immediate need of financial assistance,
but it is not yet possible to determine what order, if any,
should be made on the application for the provision of
maintenance for the applicant; and

(b)that property forming part of the net estate of the deceased is
or can be made available to meet the needs of the applicant,





the court may order, subject to such conditions or restrictions, if
any, as the court may impose and to any further order of the court,
that there shall be paid to or for the benefit of the applicant out of
the net estate of the deceased such sum or sums and, if more than
one, at such intervals as the court thinks reasonable.

(2) In determining what order, if any, should be made under
this section the court shall, so far as the urgency of the case admits,
take account of the same considerations as would be relevant in
determining what order should be made on the application for the
provision of maintenance for the applicant; and any subsequent
order for the provision of maintenance may provide that sums paid
to or for the benefit of the applicant by virtue of this section shall
be treated to such extent, if any, and in such manner as may be
provided by that order as having been paid on account of the
maintenance provided for by that order.

(3) Subject to subsection (2), section 8 shall apply in relation
to an order under this section as it applies in relation to an order
providing for maintenance under section 4.

(4) Where the personal representative of the deceased pays
any sum directed by an order under this section to be paid out of
the net estate of the deceased, he shall not be under any liability
by reason of that estate not being sufficient to make the payment,
unless at the time of making the payment he has reasonable cause
to believe that estate is not sufficient.

12. (1) Subject to the provisions of this section, where an
order (in this section referred to as 'the original order') has been
made under section 4, the court may by order at any time and
from time to time, on an application made under this section, dis-
charge or vary the original order or suspend any provision of it
temporarily or revive the operation of any provision so suspended
and may reduce or increase the amount of the provision so made
by the original order for any dependant, or make such other order
as is just in the circumstances.

(2) An application under this section may be made by any
of the following persons, that is to say-
(a)the dependant on whose application the original order was
made;
(b) any other dependant of the deceased,
(c) the trustees of any relevant property;
(d)any person who, under the will of the deceased or under
the law relating to intestacy, is beneficially interested in
any relevant property.

(3) In exercising the powers conferred by this section, the
court shall have regard to all the circumstances of the case, including
any change in the circumstances to which the court was required to
have regard in determining the application for the original order.





(4) In this section 'relevant property' means property the
income of which is at the date of the application applicable under
an order made under this Ordinance for the maintenance of a
dependant of the deceased.

13. (1) No mortgage or assignment of or charge on, or agree-
ment to mortgage, assign or charge, a provision for maintenance
in anticipation of the court ordering that provision to be made
shall have effect until approved by the court.

(2) No mortgage or assignment of or charge on, or agreement
to mortgage, assign or charge, a provision for maintenance which
the court has ordered to be made, other than a provision by way
of a lump sum payment, shall have effect until approved by the
court.

14. (1) The provisions of this Ordinance shall not render the
personal representatives of the deceased liable for having distributed
any part of the estate of the deceased after the expiration of the
period of six months mentioned in section 6 on the ground that they
ought to have taken into account the possibility that the court
might permit an application under this Ordinance after the end of
that period or that an application might be made under section 12,
but this section shall not prejudice any power to recover any part
of the estate so distributed arising by virtue of the making of an
order under this Ordinance.

(2) In considering for the purposes of this section or section
6 the question when representation was first taken out, a grant
limited to part only of the estate of the deceased shall be left out
of account unless a grant limited to the remainder of the estate
has previously been made or is made at the same time.

15. For the purposes of any law which relates to the discretion
of the court as to the persons to whom administration is to be
granted, a dependant of a deceased person by whom or on whose
behalf an application under this Ordinance is proposed to be
made shall be deemed to be a person interested in the deceased's
estate.

16. The Chief Justice may make rules for the better carrying
out of the purposes and provisions of this Ordinance and in partic-
ular, but without prejudice to the generality of the foregoing-
(a)as to all matters of practice and procedure and incidental
matters arising out of this Ordinance;
(b)prescribing the forms to be used under this Ordinance,
and
(c)prescribing the fees and costs to be paid, charged or
allowed under this Ordinance.





17. (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,---unionof 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. 17.]

1. In this Schedule-

'dependant' in relation to a deceased person, means

(a) a tsip or male partner of the deceased by a union of concubinage;

(b) a daughter of the deceased by such a union who has not been married;

(e) an infant son of the deceased by such a union;

(d)a son of the deceased by such a union who is, by reason of sonic mental or
physical disability, incapable of maintaining himself; and

(e)a parent of the deceased substantially maintained by him immediately
before his death;
'party to a union of concubinage' means a tsip or a male partner of such a union;

'tsip' means the female partner of a union of concubinage.

2. Subject to paragraph 3, the Ordinance shall apply to a dependant, as defined
in paragraph 1, as it does to a dependant as defined in section 2 and all references in
the Ordinance (other than in this Schedule) to a dependant shall be construed
accordingly.

3. (1) Notwithstanding paragraph 2, the following provisions shall have effect
with regard to a union of concubinage.

(2) An order for the maintenance of a tsip shall not be made if she has married
or committed an act of sexual intercourse.

(3) An order under section 4 providing for the maintenance of a tsip by way of
periodical payments shall provide for their termination thereupon if she marries or
commits an act of sexual intercourse.

(4) Nothing in this Schedule shall authorize the court to make an order
providing for maintenance to be made wholly or in part by way of a lump sum
payment, in accordance with subsection (4) of section 4, to a party to a union of
concubinage.
Originally 12 of 1971. 35 of 1971. L.N. 91/71. Short title. Interpretation. (Cap. 111.) (Cap. 290.) (Cap. 97.) Valid marriage. (Cap. 181.) (Cap. 178.) Power for court to order payment out of net estate of deceased for benefit of dependant. 1938 c. 45, s. 1(1), (2), (3) & (4). Orders for maintenance of surviving party to void marriage from estate of other party. 1970 c. 33, s. 6. Time within which application must be made. 1938 c. 48, s. 2(1). Matters to be considered by the court. 1938 c. 45, s. 1(5), (6), (7) & (8). Effect and form of order. 1938 c. 45, s. 3. Liability for payment. Power of court to release part of estate. Interim orders. 1938 c. 45, s. 4A. Discharge and variation of orders and additional provision. 1965 c. 72, s. 27. Restrictions on dealings with provisions for maintenance. Additional provisions as to orders under this Ordinance. 1938 c. 45, s. 2(1B), (1C). Dependant to be deemed a person interested for purposes of grant of administration. 1938 c. 45, s. 2(2). Rules, etc. Transitional provisions for concubinage. Schedule. (Cap. 178.) Interpretation. Application of Ordinance to dependants by union of concubinage. Special provisions relating to maintenance orders.

Originally 12 of 1971. 35 of 1971. L.N. 91/71. Short title. Interpretation. (Cap. 111.) (Cap. 290.) (Cap. 97.) Valid marriage. (Cap. 181.) (Cap. 178.) Power for court to order payment out of net estate of deceased for benefit of dependant. 1938 c. 45, s. 1(1), (2), (3) & (4). Orders for maintenance of surviving party to void marriage from estate of other party. 1970 c. 33, s. 6. Time within which application must be made. 1938 c. 48, s. 2(1). Matters to be considered by the court. 1938 c. 45, s. 1(5), (6), (7) & (8). Effect and form of order. 1938 c. 45, s. 3. Liability for payment. Power of court to release part of estate. Interim orders. 1938 c. 45, s. 4A. Discharge and variation of orders and additional provision. 1965 c. 72, s. 27. Restrictions on dealings with provisions for maintenance. Additional provisions as to orders under this Ordinance. 1938 c. 45, s. 2(1B), (1C). Dependant to be deemed a person interested for purposes of grant of administration. 1938 c. 45, s. 2(2). Rules, etc. Transitional provisions for concubinage. Schedule. (Cap. 178.) Interpretation. Application of Ordinance to dependants by union of concubinage. Special provisions relating to maintenance orders.

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