Hong Kong Ordinances

PROBATE AND ADMINISTRATION ORDINANCE - SECT 68

Powers of personal representative as to appropriation

(1) The personal representative may appropriate any part of the movable or
immovable property, including things in action of the deceased in the actual
condition or state of investment thereof at the time of appropriation in or
towards satisfaction of any legacy bequeathed by the  deceased, or of any
other interest or share in his property, whether settled or not, as to the
personal representative may seem just and reasonable, according to the
respective rights of the persons interested in the property of the deceased.

(2) Notwithstanding the provisions of subsection (1)-

   (a)  an appropriation shall not be made under this section so as to affect
        prejudicially any specific devise or bequest;

   (b)  an appropriation of property, whether or not being an investment
        authorized by law or by the will, if any, of the deceased for the
        investment of money subject to the trust, shall not (save as
        hereinafter mentioned) be made under this section except with the
        following consents-

        (i)    when made for the benefit of a person absolutely and
               beneficially entitled to possession, the consent of that
               person;

        (ii)   when made in respect of any settled legacy, share or interest,
               the consent of either the trustee thereof, if any (not being
               also the personal representative) or the person who may for the
               time being be entitled to the income, and if the person whose
               consent is so required as aforesaid is a minor or a mentally
               disordered person, the consent shall be given on his behalf by
               his parents or parent, testamentary or other guardian,
               committee or receiver, or if, in the case of a minor, there is
               no such parent or guardian, by the court on the application of
               his next friend;

   (c)  no consent (save of such trustee as aforesaid) shall be required on
        behalf of a person who may come into existence after the time of
        appropriation, or who cannot be found or ascertained at that time;

   (d)  if no committee or receiver of a mentally disordered person has been
        appointed, then, if the appropriation is of an investment authorized
        by law or by the will, if any, of the deceased for the investment of
        money subject to the trust, no consent shall be required on behalf of
        the mentally disordered person;

   (e)  if, independently of the personal representative, there is no trustee
        of a settled legacy, share or interest, and no person of full age and
        capacity entitled to the income thereof, no consent shall be required
        to an appropriation in respect of such legacy, share or interest so
        long as the appropriation is of an investment authorized as aforesaid.

(3) Any property duly appropriated under the powers conferred by this section
shall thereafter be treated as an authorized investment, and may be retained
or dealt with accordingly.

(4) For the purposes of such appropriation, the personal  representative may
ascertain and fix the value of the respective parts of the movable and
immovable property and the liabilities of the deceased as he may think fit,
and shall for that purpose employ a duly qualified valuer in any case where
such employment may be necessary, and may make any transfer or conveyance
(including an assent) which may be requisite for giving effect to the
appropriation.

(5) An appropriation made pursuant to this section shall bind all persons
interested in the property of the deceased whose consent is not hereby made
requisite.

(6) The personal representative shall, in making the appropriation, have
regard to the rights of any person who may thereafter come into existence, or
who cannot be found or ascertained at the time of appropriation, and of any
other person whose consent is not required by this section.

(7) This section does not prejudice any other power of appropriation conferred
by law or by the will (if any) of the deceased, and takes effect with any
extended powers conferred by the will (if any) of the deceased, and where an
appropriation is made under this section in respect of a settled legacy, share
or interest, the property appropriated shall remain subject to all trusts for
sale and powers of leasing, disposition and management, or varying
investments, which would have been applicable thereto or to the legacy, share
or interest in respect of which the appropriation is made, if no such
appropriation had been made.

(8) If after any immovable property has been appropriated in purported
exercise of the powers conferred by this section, the person to whom it was
transferred or conveyed disposes of it or any interest therein, then, in
favour of a purchaser, the appropriation shall be deemed to have been made in
accordance with the requirements of this section and after all requisite
consents, if any, had been given.

(9) In this section, a settled legacy, share or interest includes any legacy,
share or interest to which a person is not absolutely entitled in possession
at the date of the appropriation, also an annuity, and

"Purchaser" (買家) means a purchaser for money or money's worth.

(10) This section applies whether the deceased died intestate or not, and
whether before or after the commencement of this Ordinance, and extends to
property over which a testator exercises a general power of appointment, and
authorizes the setting apart of a fund to answer an annuity by means of the
income of that fund or otherwise, but is subject to the provisions of
section 54. [cf. 1925 c. 23 s. 41 U.K.]

"Purchaser" (買家)