62 chapter 14 demo those entitled to apply present

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Chapter 14 Demo: Those entitled to apply - present position and recommendations ___________________________________________________ Definition of "dependant" 14.1 Where a proper application has been made, the DFMO gives the court a discretion to make reasonable provision for the maintenance of a deceased's "dependant" out of the "net estate", where no such reasonable provision has been made by the deceased in his will or, where there is no will, by the law of intestacy, or by a combination of both the will and the law of intestacy if the deceased died partially intestate (section 4(1)). The application to the court must be made by or on behalf of a "dependant". "Net estate" is defined in section 2(2) of the DFMO and means in effect what is left over, other than certain land in the New Territories, after all debts, duties, funeral and administration expenses have been paid. 14.2 As stated above, the only persons able to benefit under the DFMO are "dependants". The Ordinance limits these persons, under section 2, to – "(a) a wife or husband of the deceased by a valid marriage; (b) a daughter of the deceased by a valid marriage who has not been married; (c) an infant son of the deceased by a valid marriage; (d) a son of the deceased by a valid marriage who is, by reason of some mental or physical disability, incapable of maintaining himself; and (e) a parent of the deceased substantially maintained by him immediately before his death." 14.3 Section 17 and the Schedule to the Ordinance set out the transitional provisions relating to concubinage. "Dependant", as defined in the Schedule, means – "(a) a tsip or male partner of the deceased by a union of concubinage; 63
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(b) a daughter of the deceased by such a union who has not been married; (c) an infant son of the deceased by such a union; (d) a son of the deceased by such a union who is, by reason of some mental or physical disability, incapable of maintaining himself; and (e) a parent of the deceased substantially maintained by him immediately before his death." 14.4 The classes of individuals able to claim as a "dependant" under the Ordinance are very limited and do not permit a person outside those classes, who also may have been dependent on the deceased, to make a claim. De facto spouses, illegitimate children, brothers or sisters who may have cared for the deceased in his or her later years and may have been actually dependent on the deceased, and certain legitimate sons and daughters are, accordingly, all outside the classes of persons permitted to claim. At present, adult children have no right to apply unless they are female and unmarried, or male and have some mental or physical disability preventing self-maintenance. The Sub-committee notes that the ultimate decision on whether a person shall be made an award under the Ordinance depends on the court considering all the circumstances of a case and deciding whether to exercise its discretion to make an award in those particular circumstances. Consequently, a right to make a claim merely confers a right to apply, not a right to receive, and we consider that there
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