1970-HKRS29-8-37_Part02 — Page 22

Application.

1964. c. 55.

■. 15043-07).

Abolition of the double possibility rule. [F. 1925, c. 20. # 161.)

2

"in being" means living or en ventre sa mere;

"power of appointment" includes any discretionary power to transfer a beneficial interest in property without the furnish- ing of valuable consideration:

"will" includes a codicil.

(2) For the purposes of this Ordinance a disposition con- tained in a will shall be deemed to be made at the death of the testator.

(3) For the purposes of this Ordinance a person shall be treated as a member of a class if in his case all the conditions identifying a member of the class are satisfied, and shall be treated as a potential member if in his case some only of those conditions are satisfied but there is a possibility that the remainder will in time be satisfied.

3. (1) Nothing in this Ordinance shall affect the operation of the rule of law rendering void for remoteness certain disposi- tions under which property is limited to be applied for purposes other than the benefit of any person or class of persons in cases where the property may be so applied after the end of the perpetuity period.

(2) This Ordinance shall apply (except as provided in sub- section (2) of section 13 and section 18) only in relation to instruments taking effect after the commencement of this Ordin- ance, and in the case of an instrument made in the exercise of a special power of appointment shall apply only where the instrument creating the power takes effect after that commence- ment:

Provided that section 12 shall apply in all cases for construing the foregoing reference to a special power of appointment.

(3) This Ordinance shall apply in relation to a disposition made otherwise than by an instrument as if the disposition had been contained in an instrument taking effect when the disposition was made.

(4) This Ordinance binds the Crown.

PERPETUITIES.

4. The rule of law prohibiting the limitation, after a life interest to an unborn person, of an interest in land to the unbor child or other issue of an unbom person is hereby abolished, but without prejudice to any other rule relating to perpetuities.

5.

3

For removing doubts, it is hereby declared that the rule of law relating to perpetuities does not apply and shall be deemed never to have applied-

(a) to any power to distrain on or to take possession of land or the income thereof given by way of indemnity against a rent, whether charged upon or payable in respect of any part of that land or not; or

(b) to any grant exception, or reservation of any right of entry on, or user of, the surface of land or of any case- ments, rights, or privileges over or under land for the purpose of

6.

(i) executing repairs, alterations, or additions to any adjoining land, or the buildings and erections thereon;

(ii) constructing, laying down, altering, repairing, re- newing, cleansing, and maintaining sewers, watercourses, cesspools, gutters, drains, water-pipes, gas-pipes, elec- tric wires or cables or other like works.

(1) Subject to subsection (2) of section 14 and subsection (2) of this section, where the instrument by which any disposition is made so provides, the perpetuity period applicable to the disposition under the rule against perpetuities, instead of being of any other duration, shall be of a duration equal to such number of years not exceeding eighty as is specified in that behalf in the instrument.

(2) Subsection (1) shall not have effect where the disposition is made in exercise of a special power of appointment, but where a period is specified under that subsection in the instrument creating such a power the period shall apply in relation to any disposition under the power as it applies in relation to the power itself.

7. (1) Where in any proceedings there arises on the rule against perpetuities a question which turns on the ability of a person to have a child at some future time, then-

(a) subject to paragraph (6), it shall be presumed that a male can have a child at the age of fourteen years or over, but not under that age, and that a female can have a child at the age of twelve years or over, but not under that age or over the age of fifty-five years; but

(b) in the case of a living person evidence may be given to show that he or she will or will not be able to have a child at the time in question.

Restrictions do The perpetuity rule.

tel. 1925. c. 20.

1. 152.)

Power to

specify per petuity period. 1964, c. $5, #L

Presuraptions and evidence

as to future parenthood. 1964, c. 31. 1. 2.