PRACTICE DIRECTION 20.1
NON-CONTENTIOUS PROBATE PRACTICE
PART I – NON-CONTENTIOUS APPLICATIONS
1. Save where the Non-Contentious Probate Rules (Cap. 10A) or any other legislation provide to the contrary, an application for an order in non-contentious probate proceedings will be made ex-parte by filing an affidavit containing the relevant information with the Probate Registry. The application will be considered by the Probate Registrar, who will endorse his order on the back-sheet of the affidavit.
2. The Probate Registrar may, if he thinks fit, require any application to be made by way of summons in Miscellaneous Proceedings to the Registrar or a Judge.
3. The order which is made must be drawn up and filed in the usual way.
4. In most cases, it will be necessary to make reference to the order in the application for the grant.
PART II – DECEASED DOMICILED OUTSIDE HONG KONG
5. An application for an order pursuant to Rule 29 of the Non-Contentious Probate Rules (Cap. 10A) will be made ex-parte and may be filed in the Probate Registry at the same time together with the application for grant.
6. The application will be made by filing an affidavit, which will contain such relevant information as is required in support of the application. The Registrar will endorse the back-sheet of the affidavit with any order which he makes.
7. The solicitor will be required to draw up the order which is made, to have it completed in the normal manner and to file it with the papers in the probate file. A solicitor will not be required to make reference to an order in the application which is made to the Court for a grant to issue.
PART III – AUTHENTICATION OF FOREIGN PUBLIC DOCUMENTS INCLUDING DEATH CERTIFICATES
8. Authentication of a foreign public document including but not limited to a death certificate should be made on the document or certificate itself and not on its English/Chinese translation.
PART IV – AFFIRMATION OF IDENTITY
9. In the following cases, the Probate Registry may dispense with the requirement of filing an Affidavit/Affirmation of Identity under Rule 5(2) of the Non-Contentious Probate Rules (Cap. 10A): –
(a)
Surviving spouse applying for letters of administration of a deceased spouse with supporting document consisting of original or sealed copy Hong Kong marriage certificate or duly legalised foreign marriage certificate; (b) Child/Parent applying for letters of administration of a deceased parent/child with supporting document consisting of original or sealed copy Hong Kong birth certificate or duly legalised foreign birth certificate which shows both the names of the child and parents; (c) Sibling applying for letters of administration of a deceased sibling with supporting documents consisting of original or sealed copy Hong Kong birth certificates or duly legalised foreign birth certificates of the applicant and the deceased which show both names of their parents; (d) Executor/executrix applying for probate or beneficiary applying for letters of administration with the Will annexed where his/her relation to the testator can be clearly identified from the Will and where supporting document as per paragraph (a), (b) or (c) above is filed to prove such relationship or where the identities and/or relationships of such executors/executrices/beneficiaries can be identified by reference to the identity document number and/or description recited in the Will; (e) Administrator appointed pursuant to an order under Section 36 of the Probate and Administration Ordinance (Cap. 10); (f) Applicant applying for a grant under Rule 29(a) and (b) and 31 of the Non-Contentious Probate Rules (Cap. 10A); (g) Lawful attorney himself (affirmation of identity of the donor of the power of attorney is still necessary but may be dispensed with if any one of the paragraphs above applies); (h) Co-administrator nominated and appointed by the surviving spouse; (i) Applicant being a solicitor holding a current practising certificate; (j) Officer applying on behalf of trust corporation; and (k) In other cases where real difficulties can be demonstrated.
PART V - PROOF OF MARRIAGES CELEBRATED IN THE MAINLAND
10. Where the validity of the marriage is not in issue, a marriage certificate issued by the appropriate authority in the Mainland after the 1st day of May, 1950 shall be received as prima facie evidence of the facts stated in the certificate.
PART VI – DOCUMENTS USED IN DIFFERENT FILES
11. Where an original document has been filed it will remain in the Court file where it is kept.
12. If the original document is required to be used in a subsequent Court file, the applicant may file a photocopy in lieu thereof provided that the applicant is the same person who filed the original document. The photocopy document shall be endorsed by the applicant to show in which previous Court file the original document may be found.
PART VII – SEALING OF FOREIGN GRANTS
13. In addition to the prevailing practice for an application for sealing of foreign grant to be signed either by the applicant himself or by his lawfully constituted attorney in Hong Kong, such an application may be signed by the applicant's Hong Kong solicitors.
PART VIII – AMENDMENTS TO SCHEDULE OF PROPERTY/ASSETS AND LIABILITIES ANNEXED TO THE GRANT RELATING TO THE ESTATE OF THE DECEASED
14. If the amendment relates solely to the description of an item, the application for amendment need not be supported by any affidavit. Upon the payment of a prescribed fee, the amended schedule as annexed to the grant will be endorsed by the Probate Registry. This is without prejudice to any requirement of the Commissioner of Estate Duty for an affidavit in respect of such amendment for the deceased who died before 11th February 2006.
15. In all other cases, including amendments to the value of an item of property, the application must be supported by an affidavit.
PART IX – ALTERATION OF GRANT BY UNAUTHORISED PERSON
16. No grant which has been sealed may be altered without an order of the Court. If an alteration has been made in a grant by an unauthorised person after its issue, the grant will be impounded, and a duplicate grant must be obtained, which will then be amended, by a court order, in the usual course. If the alteration is extensive or of a serious character, the grant will be revoked. The Court may report such misconduct to the appropriate authority as the circumstances require.
PART X – RELEASE OF ESTATE DUTY PAPERS, WHERE APPLICABLE, WILL AND DEATH CERTIFICATE FROM THE PROBATE REGISTRY BEFORE ISSUE OF GRANT
17. Before a grant of representation is issued, the Estate Duty papers, where applicable, the Will and the Death Certificate filed may be released at the Probate Registry Counter to the solicitor on record or to his clerk or representative upon production of an authorization letter identifying the recipient, which must be returned to the Probate Registry on request and in any event before the issue of the grant. Once a grant is issued, the above documents will be retained by the Probate Registry.
18. The Estate Duty Papers may include the following: –
(a) Schedule of Property and Certificate of Exemption from estate duty thereon; (b) Schedule of Trust Property and Certificate of Exemption from estate duty thereon; (c) Schedule of Joint Property and Certificate of Exemption from estate duty thereon; (d) Schedule of Gifted Property and Certificate of Exemption from estate duty thereon; (e) Schedule of Property in respect of unadministered property and Certificate of Exemption from estate duty thereon; (f) Schedule of Property for Grant Ad Colligenda Bona and Certificate of Exemption from estate duty thereon; (g) Schedule of Property for Grant Pending Suit and Certificate of Exemption from estate duty thereon; (h) Statement in Lieu of Affidavit and Certificate of Exemption.
PART XI – CHECKLIST
19. The lodgment of an application for grant will not be accepted by the Probate Registry unless, among other necessary documents, it is accompanied by a duly completed checklist as appearing in the Appendix or its updated version (if any) published by the Judiciary.
PART XII – GUIDE TO NON-CONTENTIOUS PROBATE PRACTICE
20. All practices set out in the Guide to Non-Contentious Probate Practice published by the Judiciary in 2013 or its updated version (if any), together with its subsequent supplements, shall be adhered to as far as practicable.
PART XIII – DELAY
21. Where it is shown that the applicant/solicitor has not expeditiously handled the application, for example, by not answering requisitions promptly, he may be required to give an explanation. Where appropriate, including when the Court has imposed a time limit for answering the requisitions, the applicant/solicitor should before the expiry of any time limit imposed by the Court inform the Probate Master of the difficulties and seek an extension of time. In extreme cases of delay, the Probate Master may require the applicant/solicitor to show cause why such an application should not be dismissed, without prejudice to the applicant’s right to make a fresh application.
PART XIV – BADLY PREPARED APPLICATION
22. To minimise the processing time for badly prepared application, for example, oath not following the Specified Form and/or failing to show the most basic particulars required for the application, such as domicile of the deceased and the applicant’s entitlement and capacity etc., which will necessitate many rounds of requisitions and result in long delays, the Probate Master may require the applicant/solicitor to show cause why such an application should not be dismissed, without prejudice to the applicant’s right to make a fresh application.
PART XV – OATH SERVICE WITHIN THE PROBATE REGISTRY
23. Oath service relating to affidavit or declaration on application for grant and amendment of grant is available to the applicant/solicitors acting for the applicant(s) at the Probate Registry.
24. This Practice Direction supersedes the existing Practice Direction 20.1.
25. This Practice Direction shall take effect on 11 September 2023.
Dated this 23rd day of August 2023.
| (Andrew Cheung) | |
| Chief Justice |