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.]