Cap. 10activeordinance

Probate and Administration Ordinance

遺囑認證及遺產管理條例

Full legislation

s.68

Powers of personal representative as to appropriation

(1)
The personal representative may appropriate any part of the movable or
                immovable property, including things in
                action,
                of the deceased in the actual condition or state of investment thereof at the time
                of appropriation in or towards satisfaction of any legacy bequeathed by the
                deceased, or of any other interest or share in his property, whether settled or not,
                as to the personal representative may seem just and reasonable, according to the
                respective rights of the persons interested in the property of the
                deceased.
(2)
Notwithstanding the provisions of subsection (1
)—
(a)
an appropriation shall not be made under this section so as to affect
                    prejudicially any specific devise or bequest;
(b)
an appropriation of property, whether or not being an investment authorized
                    by law or by the will, if any, of the deceased for the investment of money
                    subject to the trust, shall not (save as hereinafter mentioned) be made under
                    this section except with the following
consents—
(i)
when made for the benefit of a person absolutely and beneficially
                        entitled to possession, the consent of that person;
(ii)
when made in respect of any settled legacy, share or interest, the
                        consent of either the trustee thereof, if any (not being also the personal
                        representative) or the person who may for the time being be entitled to the
                        income,
and if the person whose consent is so required as aforesaid is a minor or
                    a mentally disordered person, the consent shall be given on his behalf by his
                    parents or parent, testamentary or other guardian, committee or receiver, or if,
                    in the case of a minor, there is no such parent or guardian, by the court on the
                    application of his next friend;
(c)
no consent (save of such trustee as aforesaid) shall be required on behalf
                    of a person who may come into existence after the time of appropriation, or who
                    cannot be found or ascertained at that time;
(d)
if no committee or receiver of a mentally disordered person has been
                    appointed, then, if the appropriation is of an investment authorized by law or
                    by the will, if any, of the deceased for the investment of money subject to the
                    trust, no consent shall be required on behalf of the mentally disordered
                    person;
(e)
if, independently of the personal representative, there is no trustee of a
                    settled legacy, share or interest, and no person of full age and capacity
                    entitled to the income thereof, no consent shall be required to an appropriation
                    in respect of such legacy, share or interest so long as the appropriation is of
                    an investment authorized as aforesaid.
(3)
Any property duly appropriated under the powers conferred by this section shall
                thereafter be treated as an authorized investment, and may be retained or dealt with
                accordingly.
(4)
For the purposes of such appropriation, the personal representative may
                ascertain and fix the value of the respective parts of the movable and immovable
                property and the liabilities of the deceased as he may think fit, and shall for that
                purpose employ a duly qualified valuer in any case where such employment may be
                necessary, and may make any transfer or conveyance (including an assent) which may
                be requisite for giving effect to the appropriation.
(5)
An appropriation made pursuant to this section shall bind all persons
                interested in the property of the deceased whose consent is not hereby made
                requisite.
(6)
The personal representative shall, in making the appropriation, have regard to
                the rights of any person who may thereafter come into existence, or who cannot be
                found or ascertained at the time of appropriation, and of any other person whose
                consent is not required by this section.
(7)
This section does not prejudice any other power of appropriation conferred by
                law or by the will (if any) of the deceased, and takes effect with any extended
                powers conferred by the will (if any) of the deceased, and where an appropriation is
                made under this section in respect of a settled legacy, share or interest, the
                property appropriated shall remain subject to all trusts for sale and powers of
                leasing, disposition and management, or varying investments, which would have been
                applicable thereto or to the legacy, share or interest in respect of which the
                appropriation is made, if no such appropriation had been made.
(8)
If after any immovable property has been appropriated in purported exercise of
                the powers conferred by this section, the person to whom it was transferred or
                conveyed disposes of it or any interest therein, then, in favour of a purchaser, the
                appropriation shall be deemed to have been made in accordance with the requirements
                of this section and after all requisite consents, if any, had been given.
(9)
In this section, a settled legacy, share or interest includes any
                legacy, share or interest to which a person is not absolutely entitled in possession
                at the date of the appropriation, also an annuity, and
purchaser
(
買家
) means a purchaser for money or money’s
                worth.
(10)
This section applies whether the deceased died intestate or not, and whether
                before or after the
                commencement*
                of this Ordinance, and extends to property over which a testator exercises a general
                power of appointment, and authorizes the setting apart of a fund to answer an
                annuity by means of the income of that fund or otherwise, but is subject to the
                provisions of
section 54
.
[cf. 1925 c. 23 s. 41 U.K.]