It was criticised in re lockwood 1957 3 all e r 520

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This provision derives from the Intestates Estates Act 1952. It was criticised in Re Lockwood [1957] 3 All E R 520 as creating results which were "capricious and absurd". For example, if no uncle or aunt of the whole blood attained a vested interest but an uncle or aunt of the half blood did, then a strict construction of the provision would result in all cousins of the whole blood being excluded and all cousins of the half blood would succeed in their preference. The Family Provision Act 1966 repealed the provision in England and Wales. We recommend that section 5(5) of the Ordinance be similarly repealed. (See clause 5 of the Bill at Annexure 7) Protection of trustees and personal representatives 12.12 It will be apparent that the duties of personal representatives and trustees under the Ordinance are many. Their prompt and proper discharge is vital, but the liability of personal representatives is presently 59
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governed by the common law rules of negligence. In our view these rules are uncertain in scope and potentially onerous in their application. Our particular concern in this regard arises from the reforms we have recommended to equate the property rights of illegitimate persons with those of legitimate persons. It will be apparent that a personal representative is more likely to encounter difficulties in ascertaining whether there are illegitimate persons entitled to an estate than will be the case with legitimate persons. To help ensure that a personal representative's recognition of these difficulties does not unduly inhibit the prompt discharge of his duties we recommend that a new provision be added to the Probate and Administration Ordinance carefully delimiting his liability. (See clause 13 of the Bill at Annexure 7). 12.13 The presumption concerning persons whose parents were not married (referred to in paragraph 9.18) is also relevant in this context. It will absolve a personal representative from the obligation to inquire whether an illegitimate intestate is survived by his father, should there be no evidence suggesting that this is the case. The Crown 12.14 Section 4(9) of the Ordinance provides – "(9) In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown as bona vacantia and the Crown may (without prejudice to any other powers), out of the whole of any part of the property devolving on it, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision." 12.15 We recommend, that subsection (9) of section 4 of the Ordinance be amended so that the reference to "the Crown" is removed and replaced with another suitable expression. (Note: the Registrar General has suggested "the Financial Secretary Incorporated" which is the expression for the Hong Kong Government's statutory property holding agency.) 60
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PART III – PROVISION FOR DECEASED PERSONS' FAMILIES AND DEPENDANTS Chapter 13 Deceased's Family Maintenance Ordinance ____________________________________________________________ Introduction History 13.1
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