Schedule by ordinance 49 of 1971 the ordinance has

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Schedule by Ordinance 49 of 1971) the Ordinance has received little attention from the legislature. The only amendments of any significance that have been made since then are as follows: – (a) In 1972, section 4A was inserted to provide that judicially separated spouses were not entitled to claim on intestacy against the other's estate (section 33(3) Ordinance 39 of 1972); and (b) In 1983, the surviving spouse's "statutory legacy" under section 4(3) or (4) of $25,000 or $100,000 respectively, was increased to $50,000 or $200,000 (LN 220/1983). The hypothetical testator 7.6 The Commission has, in reviewing the laws governing intestacy in Hong Kong, attempted to formulate the law as if standing in the shoes of a reasonable testator living in Hong Kong in the 1980s. We have formulated rules disposing of the estate of such a hypothetical testator in accordance with what we consider would reasonably have been his wishes, taking into account his circumstances and his dependants. No code can cater for every conceivable family situation or eventuality, and there will always be cases where injustice has resulted in peculiar circumstances. However, we believe 34
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that if the Ordinance were amended as recommended later, such injustices would be reduced to a minimum. Where injustice does result in individual cases, a remedy may be afforded by the legislation relating to provision for deceased persons' family and dependants. This is dealt with in Part III of this report. 35
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Chapter 8 Intestate succession: The rights of the surviving spouse ___________________________________________ The existing rules governing the division of residuary estate 8.1 The transitional provisions in the Ordinance dealing with concubinage are considered separately later and, for the purposes of this chapter, the complications arising as a result of the deceased having entered into a union of concubinage before 7 October 1971 are not considered. Of course, as time passes, the transitional provisions will have less and less effect. 8.2 "Husband" and "wife" are defined in section 2(1) of the Ordinance as meaning in relation to a person a husband or wife of that person by a valid marriage. A surviving husband or wife is here referred to as a "surviving spouse". "Valid marriage" is defined in section 3 of the Ordinance as meaning a marriage under the Marriage Ordinance Cap. 181, a modern marriage validated by the Marriage Reform Ordinance Cap. 178, a customary marriage declared valid by the Marriage Reform Ordinance, or a marriage outside Hong Kong celebrated or contracted in accordance with the law of the place where the marriage was performed. A reference to a "relation" of an intestate means a parent, brother or sister, or issue 1 of a brother or sister of that intestate. 8.3 The rules governing the manner of distribution of an intestate's residuary estate (i.e. the net estate after all debts, funeral and administration expenses have been paid) are set out in section 4 of the Ordinance. The scheme is as follows: – (a) If the intestate leaves a surviving spouse and no issue or relation, that spouse is entitled to the whole of the residuary estate of the deceased absolutely (i.e. in its entirety and without
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