Practice Directions

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 Rule 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/Chinese translation.

PART IV - AFFIRMATION OF IDENTITY

9. In the following cases, the Probate Registry may dispense with the requirement of filing an Affidavit/Affirmation of Identity under Rule 5(2) of the Non-Contentious Probate Rules, Cap. 10:-

(a) Surviving spouse applying for letters of administration of a deceased spouse with supporting document consisting of original or sealed copy Hong Kong marriage certificate or duly legalised foreign marriage certificate (such supporting document will not be returned to applicant after the issue of the grant);-

(b) Child/Parent applying for letters of administration of a deceased parent/chld with supporting document consisting of original or sealed copy Hong Kong birth certificate or duly legalised foreign birth certificate which shows both the names of the chld and parents (such supporting document will not be returned to the applicant after the issue of the grant);

(c) Executor/executrix applying for probate or beneficiary applying for letters of administration with Will annexed where his/her relation to the testator can be clearly identified from the Will and where supporting document as per paragraph (a) or (b) above is filed to prove such relationship or where the identities and/or relationships of such executors/executrices/beneficiaries can be identified by reference to the identity document number and/or description recited in the Will;

(d) Administrator appointed pursuant to an order under Section 36 of the Probate and Administration Ordinance;

(e) Applicant applying for a grant under Rule 29(a) and (b) and 31 of the Non-Contentious Probate Rules;

(f) Lawful attorney himself (affirmation of identity of the donor of the power of attorney is still necessary but may be dispensed with if any one of the paragraphs above applies);

(g) Co-administrator nominated and appointed by the surviving spouse;

(h) Applicant being a Solicitor holding a current practising certificate;

(i) Officer applying on behalf of trust corporation; and

(j) In other cases where real difficulties can be demonstrated.

PART V - PROOF OF MARRIAGES CELEBRATED IN THE MAINLAND

10. Where the validity of the marriage is not in issue, a marriage certificate issued by the appropriate authority in the Mainland after the 1st day of May, 1950 shall be received as prima facie evidence of the facts stated in the certificate.

PART VI - FORMS OF AFFIDAVITS/APPLICATION

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 Appendix 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 Appendix B.

13. The form of affidavit/affirmation of justification to be adopted by sureties shall as far as possible follow that appearing in Appendix C.

14. The form of affidavit/affirmation to be used for applications for amendment of Grant in the case of a change of estate value shall as far as possible follow that appearing in Appendix D.

15. The form of application to be used for limiting the time for creditors and others to send in their claims against the estate shall as far as possible follow that appearing in Appendix E.

PART VII - DOCUMENTS USED IN DIFFERENT FILES

16. Where an original document has been filed it will remain in the Court file where it is kept.

17. If the original document is required to be used in a subsequent Court file, the applicant may file a photocopy in lieu thereof provided that the applicant is the same person who lodged the original document for filing. The photocopy document shall be endorsed by the applicant to show in which previous Court file the original document may be found.

PART VIII - RESEALING OF GRANTS

18. 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

19. If the amendment relates solely to the description of an item, the application for amendment need not be supported by any affidavit. Upon the payment of a prescribed fee, the amended schedule as annexed to the grant will be endorsed by the Probate Registry. This is without prejudice to any requirement of the Commissioner of Estate Duty for an affidavit in respect of such amendment.

20. 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 BEFORE ISSUE OF GRANT

21. Before a grant of representation is issued, Estate Duty papers, Will and Death Certificate filed may be released at the Probate Registry Counter to the solicitor on record or to his clerk or representative upon production of an authorization letter identifying the recipient. Once a grant is issued, the above documents will be retained by the Probate Registry.

22. The Estate Duty Papers may include the following : -

(a) Schedule of Property and Certificate of Exemption from estate duty thereon;

(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;

(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;

(h) Statement in Lieu of Affidavit and Certificate of Exemption.

23. This Practice Direction supersedes the previous Practice Directions appearing at 20.1.

24. This Practice Direction shall take effect on 19th March 2001.

Dated this 15th day of February 2001.

APPENDIX A

For grant Pending Suit

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

____________

I, A.B. (description) of ...................................................................................... Hong Kong, *do hereby solemnly, sincerely and truly affirm and say/make oath and say as follows : -

1. The abovenamed 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 :

(Their names, relations and ages) ...............................................................................................................

........................................................................................................................................................................

........................................................................................................................................................................

........................................................................................................................................................................

The deceased was domiciled in ..................................................................................................................
The 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. ........... of 20 .......... ) 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 .................., 20.... it was ordered that letters of 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 ........................ 20........ for letters of administration to the estate of the said deceased pending the determination of the said action.

I，.........(name of interpreter).......................of ...........(address)......................,*do solemnly, sincerely and truly affirm and say/make oath and say that I well understand the .............. dialect of the .................. language and the English language and that I have truly, distinctly and audibly interpreted the contents of this document to the *affirmant/deponent ........................, and that I will truly and faithfully interpret the *affirmation/oath about to be administered to *him/her.

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.

*delete as appropriate