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Report on Law of Wills, Intestate Succession and Provision for Deceased Persons' Families and Dependants

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Report on Law of Wills, Intestate Succession and Provision for Deceased Persons' Families and Dependants THE LAW REFORM COMMISSION OF HONG KONG REPORT ON LAW OF WILLS, INTESTATE SUCCESSION AND PROVISION FOR DECEASED PERSONS' FAMILIES AND DEPENDANTS (TOPIC 15) We, the members of the Law Reform Commission of Hong Kong, present our report on Laws of Wills, Intestate Succession and Provision for Deceased Persons' Families and Dependants. The Honourable Mr J F Mathews CMG JP (Attorney General) The Honourable Sir Ti Liang YANG (Chief Justice) Mr James O'Grady OBE QC JP (Law Draftsman) Dr Frank S B CHAO Mr Graham Cheng OBE JP The Honourable Mr Justice Fuad (Member 1983 – 89) Dr the Honourable Henrietta IP OBE (Member 1983 – 89) Mr Simon S O IP JP The Honourable Mr Martin LEE QC JP Miss Christine LOH The Honourable Mr Justice Mortimer Mr Peter F Rhodes Mr Leslie L SUNG The Honourable Miss Maria TAM CBE JP The Honourable Mrs Rosanna TAM JP Professor Edward Tyler Dr Byron S J Weng THE LAW REFORM COMMISSION OF HONG KONG REPORT ON LAW OF WILLS, INTESTATE SUCCESSION, AND PROVISION FOR DECEASED PERSONS' FAMILIES AND DEPENDANTS _______________________________________ CONTENTS Chapter Page Introduction 1 Terms of Reference 1 Summary of work and acknowledgements 1 1. Background 3 International human rights 4 Illegitimate children: Public Opinion Survey 4 Layout of report 5 Part I - The Law of Wills 6 2. Form and Authentication 6 The present law 6 The effect of S. 17 of the AJA Act 8 Section 5(2): A general dispensing power 9 Overseas legislation and views on dispensing with formalities 10 Change favoured 12 The signature 14 3. Various Wills Ordinance Amendments 15 Introduction 15 The sections discussed 15 i Chapter Page 4. Rectification, Interpretation and Evidence 27 Introduction 27 Change in England and Wales 27 Extrinsic evidence 28 Ambiguous gifts to a spouse 29 5. Registration of Wills 30 The UK provisions 30 Hong Kong provisions 30 Recommendation 31 6. International Wills 32 The UK provisions 32 Recommendation 32 Part II - The Law of Intestate Succession 33 7. Intestate Succession: Introduction 33 Intestate succession terms of reference 33 The scope of intestacy law 33 The old law 34 The Intestates' Estates Ordinance 1971 34 The hypothetical testator 34 8. The Rights of the Surviving Spouse 36 The existing rules governing the division of residuary estate 36 Spouse entitled to purchase chattels but not matrimonial home 37 Present position unsatisfactory 38 Recommendation: the statutory legacies 39 Recommendation: personal chattels 40 Recommendation: the matrimonial home 42 Where surviving spouse acquires an interest under foreign law 43 9. "Child or issue" 45 The present position 45 Present position unfair 46 ii Chapter Page Recommended changes 48 The illegitimate intestate 48 Criticism of the present position 49 Recommended changes 50 10. "Brother or sister" 51 Present position 51 Recommendations 51 11. Concubinage 53 Present position 53 Criticism of the present position 54 Recommendations 54 Concubines and children 55 Concubines and siblings 56 12. Miscellaneous matters 57 New Territories land 57 Chinese customary law 57 Statutory trusts 59 Protection of trustees and personal representatives 59 The Crown 60 Part III - Provision for Deceased Persons' Families and 61 Dependants 13. Deceased's Family Maintenance Ordinance 61 History 61 Need for reform in Hong Kong 61 14. Those entitled to apply 63 Definition of "dependant" 63 Surviving spouse, former spouse, concubine and male partner 64 Parent of the deceased 65 Child of the deceased 66 Other "dependant" 67 iii Chapter Page 15. Jurisdiction and court's powers 69 Jurisdiction 69 Powers of the court to make orders 69 Matters to be considered by the court 71 Section 4(1) proviso 73 Time limit for applications 73 16. Property available for family provision 74 "Net estate" 74 Net estate and New Territories land 74 Net estate and other property 75 17. Anti-avoidance 77 Present position 77 Disposition 77 Contracts to leave property by will 78 Trustees 78 Recommendation 78 Part IV - Consolidation and revision 79 18. Consolidation 79 Terms of Reference 79 Accessibility of law 79 Recommendations 79 19. Revision 80 English practice and procedure 80 Recommendation 80 Part V - Forfeiture 81 20. Forfeiture 81 The forfeiture rule 81 The UK Forfeiture Act 1982 81 Hong Kong 81 iv Chapter Page Desired recommendation 81 Part VI - Summary of recommendations 82 21. Summary of recommendations 82 Recommended amendments to the Wills Ordinance, Cap 30 82 Recommended amendments to the Intestates' Estates Ordinance 84 Cap 73 Recommended amendments concerning Deceased Persons' 87 Families and Dependants Consolidation and Revision 90 Forfeiture 91 Annex 1 92 Public Opinion Survey Report concerning illegitimate children 92 Annex 2 112 Persons or Organisations consulted 112 Annex 3 113 Administration of Justice Act 1982: Sections 27 and 28, and Second 113 Schedule Annex 4 118 Table showing distribution under Intestates' Estates Ordinance 118 1971 Annex 5 127 Inheritance (Provision for Family & Dependants) Act 1975: Sections 127 3 and 8 –13 Annex 6 136 Wills (Amendment) Bill 136 v Chapter Page Annex 7 157 Intestates' Estates (Amendment) Bill 157 Annex 8 178 Inheritance (Provision for Family and Dependants) Bill 178 Annex 9 211 Law Amendment and Reform (Consolidation) (Amendment) Bill 211 vi Introduction ________________ 1. On 3 September 1984, the Chief Justice and Attorney General, under powers granted by the Governor in Council on 15 January 1980, as amended on 7 June 1983, referred to the Law Reform Commission ("the Commission") for consideration and report the following questions – "Law of Wills 1. Should the law relating to wills be changed having regard – (a) to the reforming provisions of Part IV of the Administration of Justice Act 1982 of the United Kingdom; and (b) to the needs of Chinese testators making wills under section 5(2) of the Wills Ordinance (Cap. 30)? 2. Is it necessary or desirable for the law of Hong Kong to provide for the making of 'international wills' to conform with the Annex to the 'Convention providing a Uniform Law on the Form of an International Will' concluded at Washington on 26 October 1973? Law of Intestate Succession 3. (a) Generally, is the existing law relating to intestate succession satisfactory or are any changes in that law necessary or desirable? (b) Specifically, is the existing law, which provides on an intestacy for the separate devolution of land to which Part II of the New Territories Ordinance (Cap. 97) applies, satisfactory? Provision for Deceased Persons' Families and Dependants 4. Is the law relating to the making of adequate provision, including maintenance and support, for the dependants and families of deceased persons, satisfactory or are any changes in that law desirable?" Summary of work 2. On 5 October 1984 the Law Reform Commission appointed a sub-committee to consider the matter under the chairmanship of Mr Brian 1 McElney JP, a member of the Commission. The other sub-committee members were: – Professor Dafydd Evans School of Law, University of Hong Kong Miss Elsie O S LEUNG Solicitor Partner, P H Sin & Co Dr P A L Vine Solicitor Partner, Deacons Dr WONG Tin-chun Dentist Dental Clinic, Central Government Offices 3. In October 1986 the sub-committee completed a working paper which was circulated to the persons or organisations set out in Annexure 2 for their comments. All comments received were considered and, where appropriate, incorporated in the sub-committee's preliminary report. The Commission considered this report at its 56th, 58th and 59th meetings. A revised report was compiled by the sub-committee in the light of the Commission's comments and this report was considered by the Commission at its 67th, 68th, 69th and 71st meetings. 4. We wish to record our appreciation of the assistance given to the Commission by the members of the sub-committee, all of whom have given unstintingly of their time and expertise over a period of almost five years. We also wish to thank all those who so helpfully commented on the working paper. We wish also to express our gratitude to those members of the Law Reform Commission Secretariat who have assisted the sub-committee during that period, namely Geoffrey Grimmett, Michael Darwyne, Michael Scott, Mark Berthold and Michelle Ainsworth. 2 Chapter 1 Background ________________ 1.1 The last major reform of Hong Kong's Law of Succession took place in 1970 and 1971 when a number of statutes concerning the family, its property and succession were enacted. So far as succession is concerned, the Wills Ordinance Cap. 30 was enacted in 1970 and came into force in 1971 at the same time as the Intestates' Estates Ordinance Cap. 73 and the Deceased's Family Maintenance Ordinance Cap. 129 which were enacted in that year. Also enacted in that year was the Probate and Administration Ordinance Cap. 10 but, as this Ordinance is concerned only with matters relating to the procedure of estate administration, it is not considered in detail in this Report. 1.2 It is fair to say that the operation of these three Ordinances has presented no major problem in practice and there has not been a great deal of reported litigation arising from their provisions. Most applications under the Ordinances would be made in Chambers and not in open court. A number of inconsistencies and anomalies have, however, emerged over the years, suggesting that a review would be advantageous. Some of these result from the wholesale adoption of English legislative provisions into Hong Kong without sufficient regard to local conditions but some arise from the legislation itself. 1.3 It is always desirable to keep under review laws which as closely affect the entire community as do the laws concerning succession. Society and the expectations of its members change and the law must be responsive to those changes.
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