-
· 13 ·
The 1830 Act changed the common law by validating an appointment which resulted in some objects receiving only insubstantial, illusory or nominal shares in the property to be distributed. A further Act in 1874 took the reform of the common law a step further by also validating an appointment which resulted in one or more objects being excluded altogether from a share in the
property.
It is important that the legal rules regarding powers of appointment should remain as they have been for more than a century to ensure certainty in the law so that lawyers are able to advise their clients with confidence when drawing up wills and other instruments affecting dispositions of property.
By clause 2 of the Bill it is therefore proposed to insert another new section in the Trustee Ordinance to preserve the law on powers of appointments in local legislation. The new provision is based on section 158 of the United Kingdom's Law of Property Act 1925 which is a consolidation of the Illusory Appointments Act 1830 and the Powers of Appointment Act 1874.
The enactment of the two new sections in the Trustee Ordinance will make the references to the Charities Procedure Act 1812 and the Illusory Appointments Act 1830 in the Schedule to the Application of English Law Ordinance redundant. Clause 5 of the Bill therefore seeks to delete those items from the Schedule.
Clause 5 also proposes to delete one other item in the Schedule to the Application of English Law Ordinance. This refers to the Charities Procedure Act 1832. The Trustee Ordinance already provides for the situation covered by the 1832 Act as a result of an amendment to section 62 which was enacted in 1995. The reference to that Act in the Schedule to the Application of English Law Ordinance should therefore be deleted.
The Administration is aware that the introduction of this Bill at this time gives the Council only a few weeks in which to consider it. However, the Administration considers that it is desirable that local legislation on these issues should be enacted before the transfer of sovereignty, and work in preparing the Bill has only just been completed. The Bill is short and aims merely to replace laws that already apply to Hong Kong. In the circumstances, I hope that this Council will have no difficulty in dealing with it before the end of this session.
Mr President, this Bill is a housekeeping measure designed to preserve some rather technical provisions of the law of property and of charitable trusts, and to make them more accessible and comprehensible. I commend the Bill to the Council.
End