1971-HKRS28-8-38_Part02 — Page 33

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Cesser of right of executor to prove.

28.

Where a person appointed executor by a will-

(a)

1935. A 29. 4. 5.

Express renunciation of right to probatc.

Constructive renunciation.

Retraction of renunciation.

Withdrawal of renunciation. 1935. a 23. 1. 6.

survives the testator but dies without having taken out probate of the will; or

(b) is cited to take out probate of the will and does not

appear to the citation; or

(c) renounces probate of the will,

his rights in respect of the executorship shall wholly cease, and the representation to the testator, and the administration of his estaic shall go, devolve, and be committed in like manner as if such person had not been appointed executor.

29. (1) Any person who is or may become entitled to representation may expressly renounce his right to such representation.

(2) Such renunciation may be made orally on the bearing of any petition or probate action by the person renouncing or by counsel on his behalf, or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn.

30. (1) Any person having or claiming any interest in the estate of a deceased person may cause to be issued a citation directed to the executors appointed by the deceased's will calling upon them to accept or renounce their executorship.

(2) Any person so cited may enter an appearance to the citation, but if he makes a default in appearance thereto, he shall be deemed to have renounced his executorship; and if, having appeared, he does not proceed to apply for probate, or having applied has failed to prosecute his application with reasonable diligence, the person so citing may apply for an order that the person cited, unless he applies for and obtains probate within a time limited by the order, shall be deemed to have renounced his right thereto, and an order may be made accordingly.

31. A renunciation of probate or administration may be re- tracted at any time on the order of the court:

Provided that leave may be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree only if the court is satisfied that such retraction is for the benchi of the estate or persons interested therein.

32. (1) Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Ordinance, to withdraw the renunciation and prove the will,

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the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other personal representative who has previously proved the will or taken out letters of administration, and a memorandum of the subsequent probate shall be endorsed on the original probate or letters of administration.

(2) This section applies whether the testator died before or after the commencement of this Ordinance.

33. (1) Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.

(2) A probate or administration may be revoked under subsection (1) without being called in if it cannot be called in.

(3) The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.

34. (1) An executor of a sole or last surviving executor of a leslator is the executor of that testator.

(2) Subsection (1) shall not apply to an executor who does not prove the will of his testator, and, in the case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator il shall cease to apply on such probate being granted.

(3) So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.

(4) The chain of such representation is broken by--

(a) an intestacy: or

(b) the failure of a testator to appoint an executor; or

(c) the failure to obtain probate of a will,

but is not broken by a temporary grant of administration if probate is subsequently granted.

Revocation

of grants and removal of executora, 1956, o. 46. 4. 17

Executor of executor rep resents original testator.

1933, 4. 21 * *