This frequently provides for the male offspring

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This frequently provides for the male offspring inheriting per capita or equally per stirpes 1 and, occasionally, the rules provide for both systems of distribution governing certain percentages of the devolution of the property in question. We believe, however, that in some incidences regard has to be had under the rules of the clan, family, Tong or Tso to the general intestacy law. 12.8 We also consider that it would be desirable to make it clear that (where the rules of a clan, family, Tong or Tso lay down what is to happen to the clan, family, Tong or Tso property in the event of the death of a member) such rules will be given effect to and will not be affected by this Ordinance or the Wills Ordinance, unless such rules themselves incorporate reference to those Ordinances, either expressly or by implication. 12.9 Political considerations might militate against the total repeal of section 11, despite our recommendation concerning the preservation of the rules for inheritance laid down in the rules of the clan, family, Tong or Tso in question. Consideration would have to be given to Annex III paragraph 2 of 1 defined in para 3.30. 58
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the Joint Declaration. This confers benefits regarding rental payments in respect of land, including New Territories land. Should our recommendation that section 11 be repealed not be followed, we recommend the very least that should be done is that the section be amended, so that its operation is limited only to non-exempted land in the New Territories which is registered in the name of or held for the benefit of a Chinese clan, family, Tong or Tso . Land registered or held otherwise would accordingly devolve upon intestacy under the normal provisions of the Ordinance. There would in this event also have to be consequential amendments to the relevant sections in Part II of the New Territories Ordinance, so that a Tso is expressly included in the expression "clan, family or Tong " to reflect long established practice. We note, however, that as pointed out by Dr. James Hayes, formerly of the City and New Territories Administration, other institutions, e.g. Wui , might also be included therefore the change should not be mare in isolation. Statutory Trusts 12.10 Section 5 of the Ordinance makes provision for trusts in favour of issue and other classes of relatives of the intestate. Section 5(5) provides "(5) Where the trusts in favour of any class of relatives of the intestate, other than issue of the intestate, fail by reason of no member of that class attaining an absolutely vested interest, the residuary estate of the intestate and the income thereof and all statutory accumulations, if any, of the income thereof, or so much thereof as may not have been paid or applied under any power affecting the same, shall, by virtue of subsections (2) and (3) of this section, go, devolve and be held under the provisions of this Ordinance as if the intestate had died without leaving any member of that class, or issue of any member of that class, living at the death of the intestate." 12.11 This provision derives from the Intestates Estates Act 1952.
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