TNAG-2322-FCO40-3366-Hong-Kong-Bill-of-Rights-amendment-to-Letters-Patent-1991 — Page 7

布政司署

港下亞畢道

CONFIDENTIAL

GOVERNMENT SECRETARIAT

LOWER ALBERT ROAD

HONG KONG

本署檔號 Our Ref

CSO/ADM TC 17/91 Pt.2

31 August 1991

來函擋號 YOUR REF

Mr Michael V Stone

Hong Kong Department

Foreign and Commonwealth Office

Whitehall

London SW1A 2AH

Sending

П-

M- Fisher.

File lists.

GF

VPIS try to dig out

Readvice mentioned

overleaf.

579

Dear Michael,

Proposed Amendments to the Probate

and Administration Ordinance, Cap. 10

We propose to amend the Probate and Administration Ordinance (Cap. 10) to transfer a prerogative power to deal with unspecified charitable bequests, to the High Court of Hong Kong and would like to seek your views on this proposal.

There exists a dichotomy of authority over the administration of charitable gifts under the present law. If a testator makes a bequest for unnamed charitable purposes without the creation of a trust, the power of selecting the particular charity purpose lies with prerogative and not with the courts, in contrast to those cases where a trust has been created, in which the Court has the power to approve a scheme for charitable purposes.

No special procedure for dealing with such charitable bequests has been developed or prescribed for Hong Kong.

The assumption has been that the English procedure will apply, whereby the court would give leave to the Attorney General to ascertain Her Majesty's pleasure on a case-by-case basis, and Her Majesty will then manifest her wishes by issuing a warrant under the Sign Manual for the administration of a scheme put forward by the Attorney General. In order to avoid the need to refer such cases to London, the application of the traditional English procedure could be achieved by delegating the exercise of the relevant prerogative power to the Governor. For Hong Kong this would involve a Royal Instruction to the Governor authorising him to act via Article II of the Letters Patent to make dispositions of testamentary gifts for unnamed charitable purposes

in the name of Her

in Majesty accordance with a scheme submitted by the Hong Kong Attorney General.

CONFIDENTIAL