Incorporates into the estate any property of the

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incorporates into the estate any property of the deceased's so nominated, in order that it may be treated as property of the estate available for family provision (see section 8 of the 1975 Act). (Examples in the UK might include monies placed on investment deposit with particular banks or with the Post Office.) Nonetheless, in order not to cause undue delay in the distribution of the estate, the section provides that those distributing the property in accordance with the terms of the nomination, shall not be liable to make restitution for the assets so distributed, should an action for family provision succeed. This protection does not however preclude the successful applicant from following the distributed assets into the hands of the nominee, should this be ordered by the court. In Hong Kong there are many non-statutory schemes which allow such nominations. Examples include employee pension and superannuation schemes. The Commission notes that the UK provision does not expressly cover instances where property could have been the subject of a nomination, but no actual nomination was made by the deceased before his death. We therefore recommend that the equivalent Hong Kong provision be extended to include both property where a nomination has been made and where a nomination could have been made by the deceased in respect of it . (See clause 10(1) of the Bill). 16.7 A donatio mortis causa is a gift of money or other property given by the deceased in anticipation of his death. Under section 8(2) of the 1975 Act (and clause 10(2) of the Bill) this type of property is treated similarly to the property which is the subject of a nomination (discussed above). 16.8 Property owned by the deceased as a joint tenant during his lifetime would, in the usual case, pass automatically to the surviving joint tenant or tenants upon his death. Consequently, such property does not form part of his estate. (The joint tenancy situation should be compared to the other type of co-ownership, the "tenancy in common". The survivorship principle does not apply to tenants in common, so the deceased's share in such property would be retained as part of his estate.) The issue arises upon 75
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the death of a joint tenant whether, despite the usual survivorship rule, the deceased's share of the jointly owned property should be available nonetheless for family provision purposes. This is particularly relevant in relation to the jointly owned matrimonial home, where the applicant for provision is someone other than the surviving spouse (joint tenant). Section 9 of the 1975 Act (and clause 11 of the Bill) therefore gives the court the power to make orders for financial provision out of the severable share of the property owned by the deceased as a joint tenant. It should be noted that section 9 limits the application period under this provision to six months from the date when representation is first taken out, on the basis that if the usual survivorship rule is to be displaced, this should be made known to the surviving joint tenant as soon as possible. It is proposed that the same time limit apply in Hong Kong. (See clause 11(1) of the Bill at Annexure 8.) 76
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