1971-HKRS29-8-38_Part02 — Page 4

Time within which applica- tion must be

sado.

1938, c. 45, 1. 206).

Matters to

be considered b. the court. 1938, c. 45, s. 109, POJ. (A & Q),

5. Except as provided by section 11. an application under this Ordinance shall not, without the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out,

6. (1) On an application made under this Ordinance the court shall have regard-

(a) to any past, present, or future capital of the dependant la whom the application relates and to any income of that dependani from any source;

(b) to the conduct of that dependant in relation to the

deceased and otherwise;

(c) to the interests of other dependants; 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 that dependant or to persons interested in the estate of the deceased, or otherwise.

(2) The court shall also, on any such application, have regard to the deceased's reasons, so far as ascertainable. for making the dispositions made by his will, if any, or for refraining from dis- posing by will of his estate or part of his estate, or for not making any provision, or any further provision, as the case may be, for a dependant, and the court may accept such evidence of those reasons as it considers sufficient including any statement in writing signed by the deceased and dated, so, however, that in estimating the weight, if any, to be attached to any such statement the court shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the

Statement.

(3) In determining whether, and in what way, and as from what date, provision for maintenance ought to be made by an order, 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 improvident having regard to the interests of the dependants of the deceased and of the person who, apart from the order, would be entitled to that property or to be maintained out of the deceased's estate.

(4) The court in considering for the purposes of section 4 whether the disposition of the deceased's estate effected by the law relating to intestacy, or by the combination of the deceased's will and that law, makes reasonable provision for the maintenance of a dependant shall not be bound to assume that the law relating to intestacy makes reasonable provision in all cases.

7. (1) Where an order is made under this Ordinance, then for all purposes, including the purposes of the enactments relating to death duties, the will or the law relating to intestacy, or both the will and the law relating to intestacy, as the case may be, shall have effect, and shall be deemed to have had effect as from the date of the deceased's death, subject to such variations as may be specified in the order for the purpose of giving effect to the provision for maintenance thereby made.

(2) An order made under this Ordinance providing for main- tenance by way of periodical payments may provide for payments of a specified amount, or for payments equal to the whole or part of the income of the net estate or of the income of any part to be set aside or appropriated under this Ordinance of the net estate, or may provide for the amount of the payments or any of them to be determined in any other way which the court thinks fit.

(3) The court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under this Ordinance, but no larger part of the net estate shall be set aside or appropriated to answer by the income thereof the provision for maintenance thereby made than such a part as, at the date of the order, is sufficient to produce by the income thereof the amount of the said provision.

(1) If a deceased person dies leaving net estate situate in the Colony such net estate shall, whether the deceased at the time of his death was domiciled in the Colony or outside the Colony, be liable in accordance with the provisions of this Ordin- ance for the payment of any provision for maintenance ordered to be made under this Ordinance out of the net estate of the deceased as if the deceased at the time of his death had been domiciled in the Colony.

(2) The liability for the payment of any provision for main- tenance ordered to be made under this Ordinance shall, unless the court otherwise orders, fall rateably upon the net estate of the deceased.

(3) The court may exonerate any part of the deceased's net estate from liability for the payment or payments for maintenance ordered to be made under this Ordinance after hearing such of the parties who may be affected by the exoneration as it thinks necessary, and may for that purpose direct any personal representa- live to represent, or appoint any person to represent, any such party.

Effect and form af order.

1908, s. 44. 4).

Liability for payment