C an election ie a decision to seek appropriation is

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(c) An election (i.e. a decision to seek appropriation) is not exercisable without leave of the court where the residence forms part of a building and the residuary estate comprises or includes an interest in the whole of the building, or where the residence was at the time of the intestate's death not used solely for domestic purposes. (d) An election must be exercised within 12 months of the first obtaining of probate or the grant of administration, during which period the personal representative may not dispose of the interest in the residence except in the course of administration owing to want of other assets. Where surviving spouse acquires an interest under foreign law 8.27 In In re Collens [1986] 2 WLR 919 it was held that English immovable assets are to be regulated for the purposes of succession by the lex situs (the law of the place where an object is situated) rather than by the law of the domicile (the law of the country that a person treats as his permanent home and to which he has the closest legal attachment). The facts were that an intestate had died domiciled in Trinidad and Tobago. The deceased had estate there, other estate in Barbados and a small estate in England part of which consisted of immovable property. The High Court reluctantly concluded that the intestate's widow was entitled to the full "statutory legacy" under section 46(1) of the Administration of Estates Act 1925 as amended (the Hong Kong equivalent being section 4(3) and (4) of the Ordinance), despite her having already received $1 million out of the deceased's estate in Trinidad and Tobago. We consider that in such circumstances, where estate is left in more than one jurisdiction, it would be fairer to the other members of the deceased's family if the surviving spouse were required to account for moneys received elsewhere against any interest 43
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received under the intestacy or partial intestacy in Hong Kong in respect of immovable property. Two situations need to be covered: - (a) Where a person dies leaving immovable property outside Hong Kong; and (b) Where a person dies domiciled outside Hong Kong, leaving immovable property in Hong Kong. 8.28 We recommend that a provision be inserted in the Ordinance to negative the effect of the decision in In re Collens and deal with situations (a) and (b) (see clause 8 of the Bill at Annexure 7). 8.29 We had originally intended to recommend the insertion of a deeming provision in the Ordinance immediately to follow the new section 7, to alleviate the estate duty payable on the death of an intestate where the personal representative had appropriated to the surviving spouse any interest of the intestate in the matrimonial home. This would assimilate the estate duty position on an intestacy to that of a testate succession. The Financial Secretary, however, in his budget speech on 26 February 1986, proposed amending section 10A of the Estate Duty Ordinance Cap. 111 to counter the effects of the decision in LAU Yiu-sum v Commissioner of Inland Revenue (Estate duty appeal No. 1 of 1983).
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