Hong Kong Regulations

NON-CONTENTIOUS PROBATE RULES - RULE 44

Caveats

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2

(1) Any person who wishes to ensure that no grant is sealed without notice to
himself may enter a caveat in the Registry.

(2) Any person who wishes to enter a caveat (in this rule called

"the caveator") may do so by completing an appropriate specified form in the
appropriate book at the Registry and obtaining an acknowledgment of entry from
the proper officer, or by sending through the post at his own risk a notice in
the specified form addressed to the Registrar.

(3) Where the caveat is entered by a solicitor on the caveator's behalf, the
name of the caveator shall be stated in the form completed in accordance with
paragraph (2).

(4) Except as otherwise provided by this rule, a caveat shall remain in force
for 6 months from the date on which it is entered and shall then cease to have
effect, without prejudice to the entry of a further caveat or caveats.

(5) The Registrar shall maintain an index of caveats entered in the Registry
and on receiving an application for a grant, he shall cause the index to be
searched.

(6) The Registrar shall again cause the index to be searched before he shall
allow any grant to be sealed and shall not allow any grant to be sealed if
there is an effective caveat in respect thereof: Provided that no caveat shall
operate to prevent the sealing of a grant on the day on which the caveat is
entered.

(7) A caveat may be warned by the issue from the Registry of a warning in the
specified form at the instance of any person interested (in
this rule called "the person warning") which shall state his interest and, if
he claims under a will, the date of the will, and shall require the  caveator
to give particulars of any contrary interest which he may have in the estate
of the deceased; and every warning shall be served on the  caveator.

(8) A caveator who has not entered an appearance to a warning may at any time
withdraw his caveat by giving notice at the Registry and the caveat shall
thereupon cease to have effect and, if it has been warned, the caveator shall
forthwith give notice of withdrawal of the caveat to the person warning.

(9) A caveator having an interest contrary to that of the person  warning may,
within 8 days of service of the warning upon him inclusive of the day of such
service, or at any time thereafter if no affidavit has been filed under
paragraph (11) of this rule, enter an appearance in the Registry by filing an
appropriate specified form and making an entry in the appropriate book, and
shall forthwith thereafter serve on the person  warning a copy of that form
sealed with the seal of the court.

(10) A caveator having no interest contrary to that of the person  warning but
wishing to show cause against the sealing of a grant to that person may,
within 8 days of service of the warning upon him inclusive of the day of such
service, or at any time thereafter if no affidavit has been filed under
paragraph (11) of this rule, enter an appearance to the warning and issue and
serve a summons for directions, which shall be returnable before the
Registrar.

(11) If the time limited for appearance has expired and the  caveator has not
entered an appearance, the person warning may file in the Registry an
affidavit showing that the warning was duly served and that he has not
received a summons for directions under the last foregoing paragraph, and
thereupon the caveat shall cease to have effect. (L.N. 266 of 1983)

(11A) Upon the commencement of a probate action the Registrar shall, in
respect of each caveat then in force (other than a caveat entered by the
plaintiff), give to the caveator notice of the commencement of the action and,
upon the subsequent entry of a caveat at any time when the action is pending
shall likewise notify the caveator of the existence of the action.

(12) Unless the Registrar otherwise directs-

   (a)  any caveat in force at the commencement of proceedings by way of
        citation or motion shall, unless withdrawn pursuant to paragraph (8)
        of this rule remain in force until an application for a grant is made
        by the person shown to be entitled thereto by the decision of the
        court in such proceedings, and upon such application any caveat
        entered by a party who had notice of the proceedings shall cease to
        have effect;

   (b)  any caveat in respect of which an appearance to a warning has been
        entered shall remain in force until the commencement of a probate 
        action;

   (c)  the commencement of a probate action shall, whether or not any caveat
        has been entered, operate to prevent the sealing of a grant (other
        than a grant under section 40 of the Ordinance) until application for
        a grant is made by the person shown to be entitled thereto by the
        decision of the court in such action, and upon such application any
        caveat entered by a party who had notice of the action, or by a
        caveator who was given notice under paragraph (11A) of this rule,
        shall cease to have effect.

(13) Except with the leave of the Registrar, no further caveat may be entered
by or on behalf of any caveator whose caveat has ceased to have effect under
paragraph (11) or (12) of this rule.

(14) In this rule, "grant" (授予、授予書) includes a grant made by any
court outside Hong Kong which is produced for resealing by the court.

(15) In this rule "probate action" (遺囑認證訴訟) shall bear the meaning
ascribed to it in Order 76 of the Rules of the High Court (Cap 4 sub. leg.).
(25 of 1998 s. 2) (L.N. 33 of 1992)

"grant" (授予、授予書)

"probate action" (遺囑認證訴訟)