|
|
Practice Directions |
PRACTICE DIRECTION – 20.1
NON-CONTENTIOUS PROBATE PRACTICE
PART I – NON-CONTENTIOUS APPLICATIONS 1. Save where the Non-Contentious Probate Rules (Cap.10) or any other legislation provide to the contrary, an application for an order in non-contentious probate proceedings will be made ex parte by lodging an affidavit containing the relevant information in the Probate Registry. The application will be considered by the Probate Registrar, who will endorse his order on the back sheet of the affidavit. 2. The Probate Registrar may, if he thinks fit, require any application to be made by way of summons in Miscellaneous Proceedings to the Registrar or a judge. 3. The order which is made must be drawn up and filed in the usual way.4. In most cases, it will be necessary to make reference to the order in the application for the grant.
PART II – DECEASED DOMICILED OUTSIDE HONG KONG
5. An application for an order pursuant to r.29 of the Non-Contentious Probate Rules (Cap.10) will be made ex parte and will be lodged in the Probate Registry at the same time as an application is made for a grant to issue.
6. The application will be made by lodging an affidavit, which will contain such relevant information as is required in support of the application. The Registrar will endorse the back sheet of the affidavit with any order which he makes.
7. The solicitor will be required to draw up the order which is made, to have it completed in the normal manner and to file it with the papers in the probate file. A solicitor will not be required to make reference to an order in the application which is made to the court for a grant to issue.
PART III – AUTHENTICATION OF DEATH CERTIFICATES
8. Authentication of a death certificate should be made on the certificate itself and not on its English translation.
PART IV – AFFIRMATION OF IDENTITY
9. Pursuant to r.5(2) of the Non-Contentious Probate Rules (Cap.10), the Probate Registry shall not require an“affirmation of identity” in the following cases, namely:
(a) surviving spouse applying for letters of administration of a deceased spouse with supporting documents consisting of a Hong Kong marriage certificate and death certificate; and
(b) child/parent applying for letters of administration of a deceased parent/child with supporting documents consisting of Hong Kong birth certificate and death certificate.
PART V – PROOF OF MARRIAGES CELEBRATED IN THE MAINLAND
10. Where a marriage certificate that has been signed and authenticated by the appropriate officer has been given in the Mainland after 1 May 1950 and the validity of the marriage is not in issue, it shall be received as evidence of the facts stated in the certificate.
PART VI – FORMS OF AFFIDAVITS
11. The form of affidavit/affirmation to be used for applications to issue grant pending suit shall as far as possible follow that appearing in App.A. 12. The form of affidavit/affirmation to be used for applications to issue grant ad colligenda bona shall as far as possible follow that appearing in App.B. 13. The form of affidavit/affirmation of justification to be adopted by sureties shall as far as possible follow that appearing in App.C.PART VII – DOCUMENTS USED IN DIFFERENT FILES
14. To avoid the necessity of certified copies having to be obtained of documents already filed, where a certificate of any kind or an affidavit is required to be filed in more than one file the original shall be put in the latest file. 15. On all earlier files shall be a photocopy of the original endorsed to show on what file the original may be found.PART VIII – RESEALING OF GRANTS
16. In addition to the prevailing practice for an application for re-sealing to be signed either by the applicant himself or by his lawfully constituted attorney in Hong Kong such an application may be signed by the applicant's Hong Kong solicitors. PART IX – AMENDMENTS TO SCHEDULE OF PROPERTY ANNEXED TO THE GRANT 17. If the amendment relates solely to the description of an item, the application need not be supported by any affidavit. Upon the payment of a prescribed fee for filing the amendment schedule, the same shall be annexed to the grant. This is without prejudice to any requirement of the Commissioner of Estate Duty for an affidavit in respect of such amendments. 18. In all other cases, including amendments to the value of an item of property, the application must be supported by an affidavit. PART X - RELEASE OF ESTATE DUTY PAPERS, WILL AND DEATH CERTIFICATE FROM THE PROBATE REGISTRY 19. Estate duty papers, will and death certificate may be released at the Probate Registry counter to the solicitor on record in any application for a grant or his clerk or representative upon production of authorization identifying the recipient.20. The estate duty papers may include the following:
(b) schedule of trust property and certificate of exemption from estate duty thereon; (c) schedule of joint property and certificate of exemption from estate duty thereon;(a) schedule of property and certificate of exemption from estate duty thereon;
(d) schedule of gifted property and certificate of exemption from estate duty thereon;
(e) schedule of property limited to ad colligenda bona and certificate of exemption from estate duty thereon; (f) schedule of property in respect of unadministered property and certificate of exemption from estate duty thereon;(g) schedule of property pending suit and certificate of exemption from estate duty thereon; and
(h) statement in lieu of affidavit and certificate of exemption.
21. This Practice Direction consolidates and supersedes the Practice Directions now appearing at pages 22.1, 22.2, 22.3, 22.4, 22.5, 22.6, 22.7, 22.8, 22.9, 22.10, 22.11, 22.13 and 22.14.
22. This Practice Direction shall take effect on 1 February 1999.
Dated this 31st day of December 1998.
(Andrew Li)
Chief Justice
APPENDIX A
FOR GRANT PENDING SUIT
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
__________
In the Estate of
deceased.
I, A.B. (description) of Hong Kong, do hereby solemnly, sincerely a truly affirm and say/make oath and say as follows:
1. The above-named and described deceased died at on the day of 19 , having made and executed his last will and testament dated the day of 19 /leaving him surviving the following persons as being his only next of kin:
The deceased was domiciled inThe deceased last resided at
The deceased was a (occupation/description)
2. There is now pending in the High Court an action entitled against (Action No. P of 19 ) concerning the validity of the will of the said deceased/the estate of the said deceased.
3. By order of Mr. Registrar dated the day of 19 it was ordered that letters administration of the estate of the said deceased be granted to me, A.B. pending the said action.
4. The estate of the said deceased and the value thereof at the date of his death which by law devolves to and vests in the personal representatives of the said deceased, are as set out in the Estate Duty Commissioner's schedule of property filed herein, so far as at present can be ascertained. The gross value of the estate amounts to $ .
5. To the best of my knowledge, information and belief, there is no other property real or personal under any title whatsoever, which by law devolves to and vests in the personal representatives of the said deceased, in respect of which estate duty is payable to the Government of the Hong Kong Special Administrative Region upon the death of the said deceased, beyond that to which reference has already been made in the said schedule of property filed herein so far as at present can be ascertained.
6. I will collect, get in and administer according to law the real and personal estate of the said deceased, pending the said action, under the directions and control of this court, save distributing the residue thereof and I will exhibit a true and perfect inventory of all and singular the said estate and render a just and true account thereof whenever required by law so to do.
7. Minority and/or life interest arises under the will/intestacy.
8. I am applying pursuant to the said order of Mr. Registrar dated the day of 19 for letters of administration to the estate of the said deceased pending the determination of the said action.
AFFIRMED/SWORN in the High Court, Hong Kong,
day of 19 , the same having
this
been first interpreted to the affirmant/deponent in the
dialect) of the Chinese language byBefore me,
A Commissioner, &c.
Note:
If the appointment of administrator is limited to some particular property, para.5 should be omitted and the limitation should be shown in para.8.APPENDIX B
FOR GRANT AD COLLIGENDA BONA
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION__________
In the Estate of
deceased.
I, A.B. (description) of Hong Kong, do hereby solemnly, sincerely and truly affirm and say/make oath and say as follow:
1. The above-named and described deceased died at on the day of 19 leaving him surviving no known next of kin/the following persons as being his only next of kin:
(Their names, relations and ages)
The deceased was domiciled in
The deceased last resided at
The deceased was a (occupation/description)
2. By order of Mr. Registrar dated the day of 19
it was ordered that letters of administration ad colligenda bona of the estate of the said deceased be granted to me limited as hereinafter mentioned.3. The estate of the said deceased in respect of which this grant is sought and the value thereof at the date of his death which by law devolves to and vests in the personal representatives of the said deceased, are as set out in the Estate Duty Commissioner's schedule of property filed herein so far as at present can be ascertained. The gross value of the estate amounts to $ .
4. I will collect, get in and administer according to law the estate of the said deceased as shown in the said schedule of property limited to collecting, getting in and receiving the same, and doing such acts as may be necessary for the preservation of the same and until further representation be granted, but no further or otherwise and I will exhibit a true and perfect inventory of all and singular the said estate and render a just and true account thereof whenever required by law so to do.
5. I am applying pursuant to the said order of Mr. Registrar dated the day of 19 for letters of administration ad colligenda bona of the estate of the said deceased limited for the purpose of (as in the order of the Registrar) until further representation be granted.
AFFIRMED/SWORN in the High Court, Hong Kong,
this day of 19 , the same having
been first interpreted to the affirmant/deponent in the
dialect) of the Chinese language byBefore me,
A Commissioner, &c.
APPENDIX C FOR SURETIES IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION__________
In the Estate of
deceased.
We, C.D., of , and E.F., of , jointly and severally make oath (or solemnly sincerely and truly affirm) and say as follows:
1. We are the proposed sureties on behalf of G.H., the intended administrator [with will annexed] of the estate of A.B., of , deceased, in the sum of $ .
2. I, the said C.D., for myself say that I am, after payment of all my just debts, well and truly worth in real or personal estate the sum of $ (insert, unless otherwise directed, amount of gros
s value of estate).3. I, the said E.F., for myself say that I am, after payment of all my just debts, well and truly worth in real or personal estate the sum of $ (insert, unless otherwise directed, amount of gross value of estate).
AFFIRMED/SWORN in the High Court, Hong Kong,
this day of 19 , the same having
been first interpreted to the affirmant/deponent in the
dialect) of the Chinese language byBefore me,
A Commissioner, &c.