PROBATE

Whether the deceaseed died with a will or intestate?

 Testate = with a will  distribution governed by provision of the will
 Intestate = without a will / invalid will
 Partially intestate = with a will disposing of only part of the property

1. Law of Wills and Testate Succession

s 2 Wills Ordinance –
 “Will” – includes a codicil and any other testamentary instrument or act
 “Personal representative” means executor, original or by representation / administrator for the time being of a
deceased person

(a) Requirements of a valid will

 Formalities (s 5(1) WO)
o (a) in writing + signed by the testator (or some other person in his presence and by his direction)
 In writing: no restrictions on the material which the will is written
 Signature:
 Seal, mark, thumbprint or chop also suffices as signature (s 2 WO)
 “Your loving mother” suffice (Re Cook)
o (b) it appears that the testator intended by his signature to give effect to the will
 Testator can sign anywhere  does not necessarily have to sign at the “foot or end” of the will
 Wood v Smith: name of T appeared before dispositive clauses
 Weatherhill v Pearce: T signed her name in, instead of against, the attestation clause
o (c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at
the same time
 Presence – both physical and mental
 Who can be a witness?
 Witness must have the opportunity of seeing T’s signature
- Re Gunstan: a blind person cannot be witness
 S 10(1): Beneficiaries (and his/her spouse) cannot be witness
- Effect = only the disposition to this particular beneficiary (or his/her spouse) will be
void
- S 10(2): such person will still be admitted as a witness  validity of the will saved
- S 10(1) shall have no effect if
 S 10(3): such witness is supernumerary (i.e. more than sufficient witness’
signature has been sought)
 Such witness only takes a trustee and not beneficially
 Where marriage of the witness occurred after the will
 S 12 WO: Executors can be witness
o (d) each witness must also attest and sign the will OR acknowledge his signature in the presence of the testator
(but not necessarily in the presence of any other witness)
 Couser v Couser: witnesses must attest / acknowledge their signatures after T’s signature has been
made
 But each witness does not necessarily need to attest and sign in the presence of other witnesses
o Exceptions:
 S 5(2) General Dispensing Provision – if no reasonable doubt that the doc embodies the testamentary
intentions of the testator – court can deem it to be duly executed despite non-satisfaction of formality
requirements
 (i) the doc must represent the testamentary intentions of testator
 (ii) must be in writing
 (iii) must apply to court to rely on s 5(2)
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  (iv) Standard of proof is high
 Privileged wills (s 6) – for persons in naval, military or air force services / seaman at sea
 Foreign wills (s 24-29)
 International wills (not yet in force)
 Testator has the capacity to make a will
o (a) Age
 18 – s 2 Age of Majority (Related Provisions) Ordinance)
 Exceptions: s 4(2)
 (i) Married minors – a married person may make a valid will even though he has not attained
full age
 (ii) Privileged wills – a person in actual naval, military or air force service, and a mariner or
seaman at sea may make a valid will even though he has not attained full age
o (b) Mental capacity
 Banks v Goodfellow: T should understand the
 (a) nature and effect of his acts and
 (b) extent of properties being disposed of and how
 CFI judge has power to make will for mentally incapacitated persons under Mental Health Ordinance
o (c) Knowledge and approval of the contents of will
 Assumed by T signing the will
o (d) No vitiating factors
 (i) Mistake
 Clerical errors will be rectified by s 23A WO
 Wu Man Shan: Chinese name of testatrix written as that of her husband in the interpretation
clause – clerical error rectified
 (ii) Undue influence and fraud
 Ma Po Chim v Mar Lok Shan
 (iii) Forgery

(b) Burden of proof

 Nina Kung v Wang Din Shin (applied in Li Chi Loy v Li Lai Lan): A person who propounds a will has legal burden to
show to the court’s satisfaction, on BoP (i.e. on preponderance of evidence), that
o (i) This is the will of the deceased
o (ii) Due execution of the will according to 5(1) and (2) WO
o (iii) Testator has testamentary capacity (i.e. age and mental capacity)
o (iv) Testator knew and approved of the will
 Usually presumed upon due execution
o If a challenger disputes:
 Validity of the will – evidential burden of putting relevant ground of challenge
 By putting forward vitiating factors – legal burden (on BOP) of establishing the factor

(c) Beneficiaries
Referred to
 By name (with reference to ID number)
 By description
o Spouse – by reference of relationship (e.g. “my wife”)
 If only one wife – she will be B
 If had a second wife  she will be B after death of first wife
 Must be after death of first wife since even though previous will revoked by subsequent
marriage, it will not automatically give gifts to second wife
 Concubines / second wife taken during the life of the first had legal status before 1971, which was later
abolished
o Children – individually or as a class gift

 Includes illegitimate children + formally adopted children (s 19 Parent & Child

Ordinance)
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  Does not include step-children, subject to express provision in will (Re Estate of Chang Fong)

(d) Testamentary Gifts

 Wordings of gifts:
o Devise (of immovable property)
o Bequest (of movable property)
o Give (both immovable and movable)

(i) Legacies = dispositions under a will

 Types of legacies:
o Specific legacies: identifies a particular asset
 I GIVE to my daughter [*] my flat at [*]
o General legacies: uses generic terms (e.g. does not point to a particular listed company, but gives whatever
shares T has)
 I GIVE all my public-listed shares to [*]
o Pecuniary legacies: involves money
 I GIVE HK$100,000 to Po Leung Kuk Children’s Home
o Demonstrative legacies: identifies a particular source out of which the legacy is paid
 I GIVE HK$100,000 to be satisfied from a [specified fund account] to Po Leung Kuk Children’s Hoe
 Residuary gifts: other properties not dealt with in the above, after payment of expenses and debts

(ii) Failure of testamentary gifts:

 (1) Ademption
o Subject matter of the testamentary gift (particularly specific gifts) no longer exists at death
o Effect = B given nothing
o Possible cure:
  Substitutional / alternative gift to B
  General gift (e.g. I give my flat to my daughter)
 (2) Lapse
o (i) Divorce
 s 15 WO:
 Gifts to former spouse will lapse
 Appointment of former souse as executor will be omitted
 But will not affect validity of will
o (ii) B pre-deceases T
 Effect = testamentary gift will form part of the residuary estate
 Possible cure:
  s 23 WO
o s 23(1): where child / remoter descendant pre-deceased T, leaving issue at T’s death
o s 23(2): where class of B consist child / remoter descendants, who pre-deceased T,
leaving issue at T’s death
o  cures lapse by allowing living issue to take the original gift
  Class gift
  Substitutional / alternative clause / gift over
o (iii) Charity beneficiary wound up
  Charitable gift and cy pres
 Where the charity designated by Deceased no longer exists
 Cy pres doctrine: the executor of the will can apply to court to make gift to an organization
with the closest objectives of the recipient
o (iv) Conditions not fulfilled
 Re Sinclair
 Facts: T stated that if wife pre-deceased him (condition), gift will go to charity; wife survived
T, but divorced
 Held: Gift goes to residuary estate
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 o On divorce, gift to wife lapsed
o Charity not entitled since condition that W pre-decease T has not occurred

(3) Revocation of Wills (s 13 and 14 WO)

All wills are revocable by any methods set out in s 13 and 14 WO

 (a) Subsequent marriage (s 13(1)(a) and s 14 WO)

o A will shall be revoked on T’s marriage
o Exception:
 s 14(3) WO: Where T was expecting to be married to a particular person + intended that the will ought
not be revoked by his marriage
o Cf. Effect of divorce: will not revoke will:
 S 15 WO: Will only cause gift to former spouse to lapse + appointment of former spouse as executor
omitted, but the will remains valid
 (b) Another valid will (s 13(1)(b) WO)
o A later will will revoke an earlier will if:
 Later will contains an express revocation clause
 Later will is inconsistent with the previous will
 (c) Written revocation executed in a matter which T could validly execute will (s 13(1)(c) WO)
o Must comply with s 5(1) requirements
 (d) Burning, tearing or otherwise destroying (s 13(1)(d))
o Burning, tearing or otherwise destroying the will (by T or some person in his presence and by his directions)
o With intention of revoking it
o Re Adams: Obliteration of signature with ballpoint pen held sufficient to revoke will

(4) Alteration of will after execution (s 16 WO)

 S 16(1): No obliteration, interlineation or alteration after execution shall be valid, except
o Where words or effect of the will before alteration are not apparent
 S 16A: “Not apparent” = cannot be discovered by any means
o Such alteration is executed by T in a manner that he could validly execute a will

2. PARTIAL INTESTACY & INTESTATE SUCCESSION

(a) Basic understanding

Entitlement to residuary estate

 S 2 IEO: every beneficial interest in an estate as to which a person dies intestate, after payment of all such funeral and
administration expenses, debts and other liabilities as are properly payable thereout, which he could, if of full age and
capacity, have disposed of by his will
 i.e. Net beneficial estate (minus expenses) of the deceased

Statutory trust for sale

 s 62 of Probate and Administration Ordinance
o Statutory trust for sale (with power to postpone) on all property of an intestate
o Administrative trust (not a beneficial trust)
 But does not mean all intestate property will necessarily be sold
o There is a power of appropriation generally
o Right of appropriation specifically to matrimonial home

(2) Basic Scheme of Succession

Residuary estate of an intestate shall be distributed in the manner / held on trust in accordance with s 4 IEO
 Rationale: to benefit direct blood relationship
o (i) Surviving spouse

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o (ii) Issues
o (iii) Parents
o (iv) Full blood siblings
o (v) Half-blood siblings
o (vi) Grand-parents

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Section Surviving relative Other relatives Entitlement
S 4(2) Spouse No Issue, Parent, Siblings  Residuary estate held for surviving H or W
absolutely
A: If intestate leaves behind spouse and no
issue, parent, brother or sister of issue thereof
 everything will go to surviving spouse
S 4(3) Spouse + Issue  Existence of other relatives is  Residuary estate shared between spouse and
immaterial issues; but not in equal shares
 Spouse first gets personal chattels + net
sum of $500,000 and interest + half of
the remaining assets
 Issue: the other half of the remaining
assets on statutory trusts
B: If intestate leaves behind spouse + issue
 Spouse: statutory legacy of $500,000
plus interest + all personal chattels +
half of the residuary estate
 Issue: Other half of the residuary
estate on statutory trust
S 4(4) Spouse + Parent / sibling of No issue  Residuary estate shared between spouse and
whole blood / issue of parent/sibling; but not in equal shares
sibling  Spouse gets personal chattels + net
sum of $1,000,000 and interest + half
of the remaining assets
 Parent / sibling / issue of sibling: the
other half of the remaining assets on
statutory trusts
o Parent has priority over
others
C: If intestate leaves spouse and no issue + a
parent / whole-blood sibling or issue thereof
 Spouse: statutory legacy of $1m plus
interest + personal chattels + half of
residuary estate
 The other (parent, failing which for
sibling): half of residuary estate on
statutory trust
S 4(5) Issue No spouse Residuary estate held for issue on statutory trusts
D: If intestate leaves issue but no spouse 
residuary estate to issue on statutory trust
S 4(6) and (7) Parent No spouse, issue Parent
E: If intestate leaves parents, but no spouse
and issue  for parents in equal shares

F: If intestate leaves one surviving parent, but

no spouse and issue  for that parent
S 4(8) Siblings of whole blood No spouse, issue, parent Residuary estate for siblings on statutory trust
G: If intestate leaves no spouse and issue and
parent  for whole-blood siblings on statutory
trust
Siblings of half blood No spouse, issue, parent Residuary estate for siblings on statutory trust
Failing whole-blood siblings  half-blood
siblings on statutory trust
Grandparents No spouse, issue, parent Residuary estate for grandparents on statutory
trust
Failing half-blood sibling  for grandparents
Uncles and aunts of whole No spouse, issue, parent Residuary estate for uncle and aunt on statutory
blood trust
Failing grandparents  for whole-blood uncles
and aunts on statutory trust
Uncle and aunts of half No spouse, issue, parent Residuary estate for uncle and aunt on statutory
blood trust
Failing whole-blood uncles and aunts  half-
blood uncles and aunts on statutory trust
S 4(9) None Bona vacantia  HKG

Definitions:
 Spouse
o May be able to apply for financial provision out of deceased estate under Inheritance (Provision for Family
and Dependents) Ordinance

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  Issue
o S 5(1)(a) IEO: Lineal descendants (including remoter descendants) – children, grandchildren
 Note: entitlements of remoter descendants is subject to that of their parents (i.e. the lineal descendants)
 S 5(1)(a): issue of any child of the intestate who predeceases T  will be entitled in the same degree as
his deceased parent
 Applies equally to statutory trusts in favor of siblings and uncles & aunts
 S 5(3): substitution of the issue for the deceased parent

(3) Spouse’s Entitlement

(a) Who are spouses:

 s 3 – H and W under valid marriage:
 X cohabitants; common law spouses; judicially separated spouses
o Concubines
 S 13(2 IEO: Only recognized for pre-7 Oct 1971 concubines
 Same sex marriage yet to be recognized

(b) Commorientes: Where spouses died together

Where spouses died together, rendering it uncertain as to who died first
 If died testate  s 11(1) CPO  the younger survives the older
 If died intestate  s 4(11) IEO  in relation to intestate’s estate, the person died without a surviving spouse
o (i) death of spouse
o (ii) intestate
o (iii) in circumstances rendering it uncertain as to who died first
 E.g. If H (older) dies testate and W (younger) dies intestate respectively in circumstances rendering it uncertain who
died first:
o s 11 CPO applies H (because he is testate) – the younger deemed to survive the elder
o s 4(11) IEO applies W (because she is intestate) – H had not survived (even if H was younger)

(c) Absolute right to personal chattels

 s 2 IEO:
o (a) Personal chattels sitting in any residence of a surviving spouse at the time of intestate’s death
 √ Furniture, clothes, articles of adornment, articles of household, personal, recreational or decorative
use, consumable stores, garden effects, domestic animals
o (b) Motor vehicles [must be with wheels] and accessories
 X Boats  falls into residuary estate  distributed under s 4 IEO
o X chattel used exclusively or principally for business or professional purposes
o X money or securities for money

(d) The Matrimonial Home

Done before considering s 4 IEO since the matrimonial home may be ruled out from the intestate’s estate
 S 7, Sch 2 IEO: Spouse has power to buy out matrimonial home
o Matrimonial home = the place where the surviving H or W lives at the time of intestate’s death (s7 IEO)
 Can use his/her entitlement to pay for the matrimonial home, or pay equality money if the home is worth more
o Residence will be valued at the date of appropriation
 Right must be exercised within 12 months (Sch 2 IEO)
o Before spouse makes an election to buy or not, there are restrictions on disposal without the spouse’s consent
 (1) Ascertain ownership of the matrimonial home
o If intestate is sole owner in law  100% to the estate, subject to RT / CT in favor of surviving spouse
o If matrimonial home owned by spouse as tenants in common  50% to deceased’s estate, subject to RT / CT in favor of
estate / surviving spouse
o If matrimonial home owned by spouse as joint tenants  100% to surviving spouse, subject to RT / CT in favor of estate
 (2) Right of appropriation
o s 7: Sch 2 has effect of enabling the surviving spouse to acquire the premise in which the surviving spouse was residing at
the time of intestate’s death
o Features of the right of appropriation:
(a) Is a right not a power; c.f s.68 of the PAO (power of appropriation which also applies to intestacy);

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 (b) Applies to any residence (but only one) in which surviving spouse was residing at the intestate’s death;
(c) Appropriate ‘in or towards satisfaction of any interest of the surviving spouse in the intestate’s estate;
(d) Can pay equality money where residence worth more
o For example: where the spouse wants to have the property in her own name, instead of having it shared with the
surviving child
(e) When claims the residence – Evaluation: Residence must be valued at date of appropriation, rather than the date of
the death
(f) Restrictions on disposal of residence by personal representatives without consent of spouse unless spouse is also
personal representative and except in the course of administration owing to want of other assets;
o Where spouse is also personal representative the ‘self-dealing rule’ does not apply.

(e) Net Sum (statutory legacy)

 Entitlement to net sum under s 4(3) or (4) of IEO
 With interest at rate determined from time to time under s 49(1)(b) HCO
 S 6 IEO: Express power given to PR to raise amount for net sums on the security of the residuary estate
o i.e. if not enough cash to pay net sum, PR may mortgage / charge certain parts of the residuary estate to raise the
money
 Right to net sum may be used to exchange fro a right of appropriation under s 7 IEO

(f) Duty to account in a Partial Intestacy

 S 8(1)(a) IEO: Spouse’s statutory legacy and interest is reduced by the amount he/she is entitled under the will
o Entitlement to personal chattels not affected
o Entitlement to residuary estate not affected

(4) Entitlement of Issues

(a) Child
 √ Illegitimate child (s.19 Parent and Child Ordinance)
 √ Formally-adopted child (s 2(2) and 2(2A) IEO)

 √ Child in mother’s womb (s 2(3))

 X Step-child (Re Estate of Chang Fong)

(b) Statutory trusts – applies to issue, siblings and uncles and aunts (s 4(3), (4), (5) and (8))
 (i) Vest at 18 or marriage
o Child’s interest under statutory trust is contingent upon them attaining the age of 18 or earlier marriage (s 5(1)
(a))
 Child must have attained 18 at the intestate’s death OR Married
 Otherwise, interest is contingent upon attaining 18
 (ii) s 5(1)(a): Substitution of issue for parent, per stirpes, if parent deceased without taking
o Conditions:
 The issue for parent (grand-children) must be living at death +
 18/ subsequently attained 18 after death +
 Father pre-deceased grandfather
o Yet, if the issue of the intestate (father) died under 18 – UNABLE to take the interest (s 5(2) and (4))

(c) Duty to Account under statutory trust – s 5(1)(c) advancement to child

 Any money or property advanced to issue / on marriage of issue during the lifetime of the intestate will be taken as
qualified advancement, subject to any contrary intentions expressed
o Effect = shall be brought into account, at a valuation in accordance with the requirements of PR
 Hotchpot: blending or combining of property, inter vivos benefits, in order to ensure equality of
division
 What will be taken into account:
o √ Gift / property made on the marriage of the child
o X Pocket money / gifts of jewelry / gifts of clothing / not too expensive gifts / money to relieve child from
temporary difficulties

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(d) Duty to account under Partial Intestacy
 S 8(1)(b): the requirements of s 5 as to bringing property into account shall apply to any beneficial interests acquired by
any issue of the deceased under the will of the deceased
 i.e. The issue must bring into accounts he received under the will the same way as in s 5(1)(c)

(4) Entitlement of Uncle / Aunts / Brothers / Sisters

(a) Statutory trust

 Also contingent upon them reaching 18 or on earlier marriage
 If brother or sister / uncle or aunt dies before the intestate:
o Pers stripes principle applies similarly to nieces and nephews:
 s 5(1)(a): Substitution of issue for parent, per stirpes, if parent deceased without taking
 s 5(3): Mutatis mutandis – extends substitution of issue to brothers and sisters / uncles and aunts
 Therefore, s 5(1)(a) applies equally for statutory trusts in favor of issues of siblings / uncle and
aunts

(5) Partial Intestacy

 s 2 IEO: “intestate” includes a person who leaves a will but dies intestate as to some beneficial interest in his estate
 Can arise because:
o Will fails to comprehend all property;
o Gift of residue wholly or partially fails;
o Will fails to dispose of the totality of the interest in property
 Rules on partial intestacy – s 8 IEO:
o (1) The will prevails – distribute the estate according to the will
o (2) The intestate part of the estate is distributed on the same entitlement as on total intestacy (s 8(1) IEO)
o (3) The amount received by B under the will must be accounted for
 s 8(1)(a): Spouse must account for testamentary benefits against the net sum (to the extent of $500,000
or $1m)
 s 8(1)(b): Issue must account for the legacy taken under the will against the net sum and interest
 Effect = entitlement under IEO to the SAME category person will be reduced by the extent of the
beneficial interest under the will

3. GRANT OF REPRESENTATION: APPLICATION FOR GRANT

(a) Procedure
 On death of a deceased, properties of deceased go to personal representative:
o Executors: appointed by deceased during lifetime in will
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  Their position and authority derived from their appointment in the will
 The probate (a) proves the will and (b) is a document of title for executors
o Administrators: appointed by court
 Their position and authority to act derived from letters of administration
 The letter of administration (a) proves title of the administrator and (b) vests property in the
administrator
 Prior to the grant of letters of administration, the property vests in the Official Administrator (s 10
PAO)
 Grant of representation applied by PR / via a solicitor
 Broadly three types of grant of representation:
o If there is a will – NCPR r 19
 Probate
 Granted to executors
 Letters of Administration with a will annexed
 Granted to persons other than an executor (s 35 PAO)
o Where there is failure of executors (no executors appointed / is willing to act / is
capable)
o If there is NO will: Letters of Administration without will

(b) Estate Duty Clearance

 Estate duty abolished in respect of deaths on or after 11 Feb 2006
o Previously it was necessary to obtain Estate Duty Clearance before making an application of Grant
o Now, still necessary to complete the Schedule of Assets and Liabilities

A. Deceased Died Testate

√ Valid will + Capable and Willing executor appointed to act  Probate

(a) Appointment of executor

 (i) Express appointment: appointed by testator in his will
 (ii) Implied appointment: by appropriate language in the will
 (iii) Transmission of office
o In ONE very exceptional circumstance, the office of executor can be transmitted to a successor entitled without
any express appointment by the testator

Transmission of office of executors – Chain of executors (s 34 PAO)

 Where the executor dies, leaving no one under the will appointed to administer the estate
 s 34 PAO: an executor of a sole / last surviving executor of a testator is the executor of that testator
o i.e. where an executor takes a grant of probate to his testator’s will, he is automatically the
executor of the estate to which his testator was executor
 Issue = whether the chain of executors has been broken?
o (i) An intestacy
o (ii) The failure of a testator to appoint an executor
o (iii) The failure to obtain probate of a will
o if chain is broken, go back to check NCPR r 19 to identify the next executor  ask for
grant de bonis non administrates and get a Letters of Administration with Will Annexed
 Note: If probate is subsequently granted, the chain is not broken by a temporary
grant of administration
 Not applicable when:
o Executor 1 completed the administration of his/her testator’s estate before he/she dies  no
need for any further executor of the original testator
o An executor does not prove the will of his/her testator
o There are other executors appointed of the original estate who did not initially obtain probate,
but who afterwards obtain probate – the executor who subsequently proves will become the

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 original executor of the first testator

 (iv) Executor de son tort (s 58 PAO) (James v Williams)

(b) Capacity of executor

 (1) A legal person (individual OR corporations)
o Corporations: the corporation must check the charging clause for approval
 (2) [if individual]
o Age 21 – the age a person can obtain a grant
o Mentally and physically capable (i.e. capable of managing his/her own affairs)
o Insolvent / people who have criminal records / reside outside jurisdiction – court might exercise jurisdiction to
pass over the person appointed in favor of more suitably qualified individuals (s 36 PAO)
 (3) Not more than 4 (s 25 PAO)
o s 25 PAO: Probate or administration shall not be granted to more than 4 persons in respect of the same property
o If only 1 or some executor apply for probate, power can be reserved to others to apply subsequently
 Additional personal representatives can be appointed where necessary (r 24 NCPR)

Note: Minority interests will not affect appointment under will

 A sole executor can act since he has been expressly chosen – his reliability can be relied on
o Court can appoint additional administrator to act with the sole executor, but this power rarely used

Note: Minors appointed as executor under will

 A minor can be appointed as executor
o But he/she cannot obtain probate until he/she attains age of 21 years
 A minor appointed as sole executor –
o Probate will be granted to his/her guardian (if any) OR to such person as the court thinks fit, for the use and
benefit of the minor (s 39 PAO, r 31 and 32 NCPR)
 S 39 says court will grant to his guardian  r 31(2) supplements by allowing child to appoint his
own next of kin after he reaches the age of 16 (?)
 If there is no guardian able and willing to act + the minor is 16 or above (r 31(1)(2) NCPR)
 To any next of kin nominated by the minor; or
 Where the minor is a married woman, to any such next of kin or to her husband if nominated
and in such a case the next of kin or husband may represent any other person below 16
entitled in the same degree as the minor
o Once the minor attains 21, the earlier grant will be revoked  A grant of probate will be made to the now adult
person (s 39 PAO)
 Only until this is done, the appointment of the minor operates to transfer to him/her any interest in the
property of the deceased / confer him/her any powers as executor (s 39 PAO)
o Advice: As a matter of practice, undesirable to appoint minors as executors

(c) Application for Grant of Probate

 Type of grant: PROBATE
 Probate Registrar has jurisdiction to issue grants (ss 5 and 6, PAO)
 Application made by the executor in person (s 24 PAO; rr 4 and 5 NCPR)
o In practice, it will be made by the solicitor acting for the executor
 Documents to be filed:
o Common documents:
 Certified copy of ID of deceased
 Death certificate
 [if death outside HK] Certified or authenticated copy
 The original will + photocopy of it
 Affirmation by executor
 W forms
Application by executor W1.1a
Application by attorney of sole executor W1.2a + 1.2
Sole executor died or renounced W1.3a
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 No executor appointed W1.4a
If died before abolition of stamp duty – change suffix to “b”

 Schedule of Assets and Liabilities – filed in duplicate

 Form N4.1
 Affidavit verifying the Schedule of Assets and Liabilities
 Form N2.1
 Marriage certificate and/or birth certificates OR affidavit of identity (where identity or relationship to T
does not adequately appear from the will)
 To establish identity of Bs and relationship to the testator
o Documents from Executor:
 ID of executor (if so identified in the will)
 Proof of executor’s relationship with the deceased (if so referred to in the will) OR affidavit of identity
where the identity or relationship with the deceased does not adequately appear from the will
 E.g. Will states “I appoint my wife”  marriage certificate needed
 Renunciation (if applicable)
 Supporting doc as to why executor is not willing to take up the application
o Cash or cheque for filing fee

Where no executor  Letter of Administration with Will Annexed

(a) When to apply for Letter of Administration with Will Annexed (s 35(1) PAO)
 The will did not appoint an executor
 Executor died / renounced
 Executor is unfit

(b) Priority of grant (r 19 NCPR)

 (1) Executor
 (2) Residuary legatee / devisee holding in trust for anyone else
 (3) Life residuary legatee / devisee
 (4) Ultimate residuary legatee / devisee
 (5) Specific legatee / devisee
 (6) Any legatee entitled on the happening of any contingency / any person who, although having no interest under the
will, would have been entitled to a grant if the deceased had died wholly intestate

B. Deceased Died Intestate

X Valid will (intestacy) OR no willing executor under a will

(a) Capacity of administrators
 (1) Age: 21
o A person under 21  special grant will be made to an adult person for his/her use an benefit
 (2) Mental and physical capacity

(b) Appointment of administrators

 No more than 4
 Note: if the estate includes a minority / life interest:
o Administration must be granted to not less than 2 individuals / a trust corporation (s 25 PAO)
 Retaining trust corporation is expensive – usually opt for 2 individuals
o Consider whether:
 Child can nominate someone under r 31 NCPR
 If only 1 individual is competent and willing to take up the grant, the administrator can nominate a co-
administrator (r 31(4) NCPR)
o E.g. deceased died (no will) with a surviving spouse and infant child below 16
 Under s.4 IEO, the surviving spouse will share the estate with the infant child
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  Under r 21, the order of priority is given first to spouse, followed by child
 Here an interest of minor is involved
 So under s.25 PAO, 2 individual administrators are required
o One of them is the spouse
o The other one is infant child  but he is under-aged
 So who can join the spouse to be the administrator?
o R 31(1)(a) provides for grant on behalf the child to parents
 But his father died and mother is another administrator
  cannot apply
o R 31(1)(b) cannot apply, as he is under 16 and not married
o R 31(4): allows the mother to apply for co-administrator  the solution
o Where one of the appointed administrators dies afterwards, there is no need to appoint another administrator; but
additional administrator could be appointed if desired in such circumstances
 Note: Grants to person under 21 (r 31 NCPR)
o (1) To the parents of the person jointly / any guardian appointed by court (r 31(1)(a))
o (2) If no such guardian willing and able to act + the person is 16 or above (r 31(1)(b))
 This person may nominate any next of kin nominated by the person to apply the grant on his behalf OR
 Where the person is a married woman, to any such next of kin or to her husband if nominated
  the next of kin / husband may represent any other person below 16 entitled in the same degree as the
person
 Note: where more than one persons entitled in the same degree
o Court will grant to person who will most effectively administer the estate
o R 25(3): Preference given to
 Living person
 A person not under disability
o E.g. deceased died leaving no spouse and no will but 2 children
 One over 21 (capable), the other is 16
 Technically both are entitled
 But under r 25 the probate registry would prefer the 21
o [No notice] a grant may be made to any person entitled without notice to other persons entitled in the same
degree
o [Dispute resolution] Any dispute between persons entitled to the grant in the same degree should be resolved by
bringing summons before the Registrar  Registrar enters a caveat and will not allow any grant to be sealed
until the dispute is disposed of

(c) Priority of Grant (r 21 NCPR)

 (1) Spouse
 (2) Children
 (3) Father or mother
 (4) Brother or sister
 (5) Issue of brother or sister
 (6) Grandparents (if they have an interest)
 (7) Uncle and Aunts (if they have an interest)

(d) Application for Grant of Administration

 Must establish applicant’s beneficial entitlement under the intestacy, and thus to the grant
 Documents to be filed
o Common documents:
 Certified copy of ID of deceased
 Death certificate
 [if death outside HK] Certified or authenticated copy
 Schedule of Assets and Liabilities – filed in duplicate
 Form N4.1
 Affidavit verifying the Schedule of Assets and Liabilities
 Form N2.1
 Proof of entitlement of others (birth certificate, marriage certificate)
o To establish entitlement of the applicant:
 ID of applicant
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  Proof of relationship (birth certificate, marriage certificate)
 Affirmation by executor
 L forms
Husband’s application L1.1a
Wife’s application L1.2a
Child’s application L1.3a
Parent’s application L1.4a
Sibling’s application L1.5a
Other application L1.6a
If died before abolition of estate duty, change suffix to “b”

o Documents to clear off persons having priority to apply

 Death certificates / Marriage certificates of others / Decree of divorce
o Cash or cheque for filing fee

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