Being a person already included who immediately

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being a person already included] who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased." (See clause 3(1) of the Bill.) 68
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Chapter 15 DFMO: Jurisdiction and court's powers Present position and recommendations ___________________________________________________ Jurisdiction 15.1 The jurisdiction of the court to make orders under the DFMO is established by section 9(1) of the Ordinance which provides – "9.(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 Ordinance 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." The present basis for jurisdiction therefore is that the deceased, regardless of his or her domicile, died leaving "net estate situate in the Colony". (It should be noted that the question of domicile has implications for the treatment of the type of property left by the deceased. Under the general rule of conflict of laws, inheritance of "movables", or personal property, is determined by the laws of the last domicile of the deceased. Inheritance of "immovables", or real property, falls by contrast under the lex situs , the particular law of the property's location.) 15.2 The Commission recommends that the bases of the court's jurisdiction be set out more clearly – one head being simply that the deceased died domiciled in Hong Kong, the other specifying that the deceased has been ordinarily resident here at any time within the three years immediately prior to his death, and that he had died leaving net estate in Hong Kong . (See clause 3(1) of the Bill at Annexure 8.) Powers of the court to make orders 15.3 The DFMO provides that once jurisdiction has been established under section 9(1), the court's powers under section 4(1) may be exercised – "4.(1) Where, after the commencement of this Ordinance, a person dies leaving a dependant and the court on application made by or on behalf of that dependant is of opinion that the 69
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disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable provision for the maintenance of that dependant, the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or restrictions, if any, as the court may impose, be made out of the deceased's net estate for the maintenance of that dependant: Provided that no application shall be made to the court by or on behalf of any person in any case where the disposition of the deceased's estate effected as aforesaid is such that the surviving spouse is entitled to not less than two-thirds of the income of the net estate and where the only other dependant or dependants, if any, is or are a child or children of the surviving spouse." 15.4
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