1967-HKRS29-8-34_Part01 — Page 12

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of the deceased, subject to such conditions or restrictions (if any) as the court may impose.

(3) Where the court makes an order under this section requiring provision to be made for the maintenance of the survivor, the order sball require that provision to be made by way of periodical payments terminating not later than the survivor's death and, if the survivor remarries, not later than the remarriage, so however that if the value of the net estate of the deceased does not exceed one hundred thousand dollars the order may require that provision to be made wholly or in part by way of a lump sum payment.

(4) On an application under this section the court shall have regard-

(a) to the past, present or future capital of the survivor and to

any income of the survivor from any source;

(6) to the survivor's conduct in relation to the deceased and

atherwise;

(c) to any application made or deemed to be made by the survivor

during the lifetime of the deceased-

() where the survivor is a former wife of the deceased, for such an order as is mentioned in subsection (1) of section 28 or that subsection as applied by section 31;

(ii) where the survivor is a former busband of the deceased, for such an order as could be made either under subsection (1) of section 28 as applied by subsection (3) of that section or under subsection (2) of section 29,

and to the order (if any) made on any such application, or (if no such application was made by the survivor, or such an application was made by the survivor and no order was made on the application) to the circumstances appearing to the court to be the reasons why no such application was made, or no such order was made, as the case may be; and

(d) to any other matter or thing which, in the circumstances of the case, the court may consider relevant or material in relation to the survivor, to persons interested in the estate of the deceased, or otherwise.

(5) In determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order under this section, the court shall have regard to the nature of the property representing the net estate of the deceased and shall not order any such provision to be made as would necessitate a realization that would be imprudent baving regard to the interests of the dependants of the deceased, of the survivor, and of the persons who apart from the order would be entitled to that property.

(6) In this section and section 39— "dependant" shall include-

(a) a wife or husband;

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(b) a daughter who has not been married, or who is, by reason of some mental or physical disability, incapable of maintaining berself;

(c) in infant son; or

(d) a son who is, by reason of some mental or physical disability,

incapable of maintaining himself;

"former spouse", ip relation to a deceased person, means a person whose marriage with the deceased was during the deceased's lifetime dis- solved or annulled;

"net estate" means all the property of which a deccased person had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of bis funeral, testamentary and administration expenses, debts and liabilities and estate duty payable out of his estate on his death.

of orders

39. (1) Subject to the provisions of this section, where an order Discharge On this section referred to as "the original order") has been made under and variation section 38, the court, on an application under this section, shall have under s. 38. power by order to discharge or vary the original order or to suspend 1965, c. 72, any provision of it temporarily and to revive the operation of any s. 27. provision so suspended.

(2) An application under this section may be made by any of the following persons, that is to say-

(a) the former spouse on whose application the original order was

made;

(b) any other former spouse of the deceased;

(c) any dependant of the deceased;

(d) the trustees of any relevant property:

(e) any person who, under the will or codicil of the deceased or under the law relating to intestacy, is beneficially interested in any relevant property.

(3) An order under this section varying the original order, or reviving any suspended provision of it, shall not be made so as to affect any property which, at the time of the application for the order under this section, is not relevant property.

(4) In exercising the powers conferred by this section, the court shall have regard to all the circumstances of the case, including any change in the circumstances to which the court was required to have regard in determining the application for the original order.