Guide to Non-Contentious Probate Practice

1 Guide to Non-Contentious Probate Practice JUDICIARY - 2 - Foreword This Practice Guide is a further step undertaken by the Judiciary to tackle the problems impeding the expeditious handling and disposal of applications for grants filed by practitioners with the Probate Registry. The initiative started in 2006 when the Guide to the use of Specified Forms and the Common Requisitions, a working tool to assist the practitioners in preparing applications for grants, was published. It was followed by a circular issued by the Law Society upon the direction of Lam J (as he then was), the then Probate Judge, in June 2011, reminding the practitioners that badly-prepared cases and delays would lead to dismissal of applications for grants. Disappointingly, many of the problems still remain and improvement has been slow.

2 More rigorous efforts are thus required. Pursuant to my direction, the Probate Masters, Master Katina Levy and Master Jack Wong, have compiled this very informative Guide . It sets out clearly and in considerable detail the current Practice adopted by the Probate Registry, in particular, targeting areas that are most problematic. It also helps practitioners navigate through the procedural steps at various stages of applications, providing useful guidance along the way. Its principal objective is not just to enhance the quality of applications for grants or to ease the burden on practitioners. It will ensure that applications are properly prepared from the outset and disposed of as efficiently as practicable. For it is in the public interest that applications for grants are dealt with as expeditiously as the circumstances of the case may permit.

3 I expect practitioners to comply fully and faithfully with this Guide . I am extremely grateful to the Probate Masters for their highly commendable efforts in preparing this Guide . The task has been onerous and demanding. And they have accomplished it with distinction. I must congratulate them for this exemplary piece of work. I would also take this opportunity to thank the staff at the Probate Registry. - 3 - The Probate Registry was first created by the Probate and Administration Ordinance, in 1971. Following the growth of the population, the workload of the Probate Registry has increased significantly over the years. In 2011, the number of applications for grant is 15,500. The burden imposed on the Probate Registry is enormous indeed. In discharging their duties, the Probate officers have the most invidious job to perform.

4 Vetting papers is an important aspect of their daily routine. However drudgery as it may appear, they have in every case gone through the papers thoroughly and carefully, making sure that they are in order and grants are properly granted. Raising requisitions for the Probate Masters consideration is not easy either. Occasionally, the requisitions raised may prompt a few unsympathetic practitioners to blame the Probate officers as being obstructive. This sort of criticism is of course wholly unwarranted. The Probate officers do no more than render administrative assistance to Probate Masters, who remain the sole authority as to whether requisitions should be raised or have been satisfactorily answered. The Probate officers are committed to their job. I find their overall performance satisfactory.

5 I am confident that they will continue to serve the public with dedication and professionalism in the years ahead. Jeremy Poon Probate Judge High Court January 2013 - 4 - Table of Contents TABLE OF CASES .. 11 TABLE OF ABBREVIATIONS .. 14 PART 1 INTRODUCTION .. 15 PART 2 JURISDICTION .. 18 A. General .. 18 B. Inquisitorial jurisdiction .. 18 B1. Common requisitions .. 19 B2. Answering requisitions by correspondence .. 19 B3. Answering requisitions by an appointment hearing .. 19 B4. Dealing with answers .. 21 C. Duty of applicants and their legal advisors .. 22 PART 3 GENERAL PROCEDURE AT THE REGISTRY .. 24 A. General procedure at the Solicitors Application Section .. 24 B. Role of Probate officers .. 24 PART 4 HOW TO PREPARE AN APPLICATION FOR GRANT .. 26 A. Preparing the oath in accordance with the specified.

6 26 form A1. Title .. 27 - 5 - Deceased s name .. 27 Deceased s address .. 28 Deceased s marital status .. 28 A2. Contents generally .. 29 Deceased s death .. 29 Deceased s domicile .. 29 (a) For deaths before .. 30 (b) For deaths on or after .. 31 Description of the persons entitled to an intestate estate . 31 Description of the persons entitled to a testate estate .. 32 A3. Clearing off prior rights .. 33 Clearing off by death .. 33 Clearing off by renunciation .. 34 (a) Renunciation of letters of administration ( ) 34 (b) Renunciation of Probate ( ) .. 35 (c) Renunciation of administration (with will annexed) ( ) .. 35 Clearing off by citations .. 36 Others: clearing off an otherwise prior right by proving a relationship of cohabitation instead of a lawful marriage.

7 38 A4. Whether a minority or life interest arises .. 39 A minority interest .. 39 A life interest .. 39 A5. Description of the capacity of the applicant .. 40 A6. Form of affidavit .. 41 A7. Due diligence, full and frank disclosure .. 41 B. Filing the death certificate of the deceased .. 42 C. Estate duty papers .. 44 C1. Deaths before .. 44 - 6 - C2. Deaths on or after .. 44 D. Document checklist .. 45 D1. Essential documents .. 45 D2. Other documents .. 46 To prove relationship .. 46 (a) Marriage Certificate .. 46 (b) Notarial Certificate of Kinship .. 47 (c) Authenticated family register .. 47 (d) Affidavit of identity .. 47 Identity cards of the deceased and the applicant .. 47 Affidavit of justification for sureties ( ) and Surety s Guarantee ( ) .. 48 (a) Provision of guarantee.

8 48 (b) Dispensation of guarantee .. 48 (i) A practicing solicitor 48 (ii) Other applicants .. 48 E Grants to Corporate Bodies .. 49 PART 5 DECEASED DIED TESTATE .. 52 A. Probate or letters of administration with will annexed .. 52 B. Formality .. 52 B1. For deaths before .. 52 B2. For deaths on or after .. 52 B3. For deaths on or after .. 52 C. Requirements .. 53 C1. Execution, plight and condition of the will .. 53 C2. Alterations in the will after execution .. 54 (a) How alterations can be proved? .. 54 (b) When a fiat copy will is required?.. 55 - 7 - C3. Rectification of a will .. 56 C4. Codicil .. 56 C5. Marking of the will .. 56 C6. Original will lost or not available .. 57 D. Order of priority: NCPR, Rule 19 .. 57 E. Common problems .. 60 E1. More than one wills .. 60 E2.

9 Wills limited as to property .. 60 E3. Home-made will .. 60 E4. Others .. 61 Name of executor .. 61 Number of executors .. 61 PART 6 DECEASED DIED INTESTATE .. 63 A. Proof of intestacy .. 63 A1. Where the deceased died without executing a will .. 63 A2. Where the deceased died having executed a testamentary instrument .. 63 Refusal of Probate .. 64 Revocation of a will under WO, (1) .. 64 (a) Revocation by marriage .. 65 (b) Revocation by a written revocation .. 65 (c) Revocation by destruction with the intention of revoking a will .. 65 Propounding a will .. 65 B. Order of priority for grant: Rule 21 .. 66 B1. Preference of living interests .. 66 A living person is preferred to a personal representative 66 A personal representative of a spouse .. 67 - 8 - (a) A spouse not beneficially entitled to the whole estate of the deceased as ascertained at the time of the application for grant.

10 67 (b) A spouse beneficially entitled to the whole estate of the deceased as ascertained at the time of the application for .67 Ascertaining the value of the deceased s estate .. 68 C. Spouse or partner as the applicant .. 68 C1. Marriage in Hong Kong on or after ( the Appointed Date ).. 68 C2. A marriage contracted in Hong Kong before the Appointed Date .. 68 Customary marriage .. 68 (a) Kim Tiu marriage .. 70 (b) Concubinage in Hong Kong .. 70 (c) Entitlement under intestacy for death after the Appointed Date .. 72 C3. Marriage in Mainland China .. 72 Before 1 May 1950 .. 72 On or after 1 May 1950 .. 74 (a) Registered marriage .. 74 (b) Unregistered marriage .. 75 C4. Married outside Hong Kong other than in mainland China .. 75 D. Parent and child .. 75 D1. Documentary proof.