Non-Contentious Probate Rules
[7 October 1971]
(Format changes—E.R. 1 of 2020)
These rules may be cited as the Non-Contentious Probate Rules.
The Interpretation and General Clauses Ordinance (Cap. 1) shall apply to the interpretation of these rules as it applies to the interpretation of an Ordinance.
In these rules, unless the context otherwise requires—
authorized officer (獲授權人員) means any person who is for the time being authorized by the Chief Justice to administer any oath or to take any affidavit required for any purpose connected with his duties; gross value (總值) in relation to any estate means the value of the estate without deduction for debts, incumbrances, funeral expenses, or estate duty (if any); (21 of 2005 s. 32) oath (誓言) means the oath required by rule 6 to be sworn by every applicant for a grant; personal applicant (個人申請人) means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor, and personal application (個人申請) has a corresponding meaning; specified form (指明表格) means a form specified by the Registrar under rule 2A(1); (L.N. 33 of 1992) the Ordinance (本條例) means the Probate and Administration Ordinance (Cap. 10); union of concubinage (夫妾關係) shall have the same meaning ascribed to it as is contained in the Intestates’ Estates Ordinance (Cap. 73); will (遺囑) includes a nuncupative will or a will which is valid according to the provisions contained in the Wills Ordinance (Cap. 30) and any testamentary document or copy or reconstruction thereof.(Repealed L.N. 33 of 1992)
The Registrar may by general notice published in the Gazette specify the forms for use in connection with these rules.
The specified form shall be adhered to with such variations or additions as circumstances may require.
A person applying for a grant through a solicitor may apply at the Registry.
Every solicitor through whom an application for a grant is made shall give the address of his place of business within the jurisdiction.
No application for a grant shall be made by post.
A personal applicant may apply for a grant at the Registry.
A personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.
No personal application shall be received or proceeded with if—
it becomes necessary to bring the matter before the court on motion or by action;
an application has already been made by a solicitor on behalf of the applicant and has not been withdrawn;
the Registrar otherwise directs.
After a will has been deposited in the Registry by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Registrar so directs.
A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as the Registrar may approve.
A personal applicant may prepare the papers leading to the grant himself and lodge them in the Registry unsworn, or if the Registrar so directs shall supply all information necessary to enable such papers to be prepared in the Registry.
Unless the Registrar otherwise directs, every oath, affidavit or guarantee required on a personal application shall be sworn or executed by all the deponents or obligors before an authorized officer.
No legal advice shall be given to a personal applicant by any person in the Registry and every such person shall be responsible only for embodying in proper form the applicant’s instructions for a grant.
No application for a grant shall be made by post.
Where the gross amount of an estate does not exceed $150,000 a personal applicant may make an informal application to the official administrator requesting him to administer the estate informally. (L.N. 358 of 1983; L.N. 125 of 1997)
The Registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.
The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the oath.
Except with the leave of the Registrar, no grant of probate or of administration with the will annexed shall issue within 7 days of the death of the deceased and no grant of administration shall issue within 14 days thereof.
The Registrar shall not require a guarantee under section 46 of the Ordinance as a condition of granting administration to any person, without giving that person or, where the application for the grant, is made through a solicitor, the solicitor an opportunity of being heard with respect to the requirement.
Every application for a grant shall be supported by an oath in the specified form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the Registrar may require. (L.N. 33 of 1992)
On an application for a grant of administration the oath shall state whether, and if so, in what manner, persons having a prior right to a grant in accordance with the provisions contained in rule 21 have been cleared off, and whether any minority or life interest arises under the will or intestacy.
Where the deceased died domiciled outside Hong Kong, the oath shall state where the deceased died domiciled.
If the oath states where the deceased died domiciled (whether in or outside Hong Kong) a statement as to the country in which he died domiciled may be included in the grant.
Subject to paragraph (2), where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant shall state in the oath the true name of the deceased and shall depose that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant.
If the name of the deceased is in accordance with the International Code for Chinese names this name shall be accepted as being the correct name of the deceased.
Every will in respect of which an application for a grant is made shall be marked by the signatures of the applicant and the person before whom the oath is sworn, and shall be exhibited to any affidavit which may be required under these rules as to the validity, terms, condition or date of execution of the will:
Provided that where the Registrar is satisfied that compliance with this rule might result in the loss of the will, he may allow a photographic copy thereof to be marked or exhibited in lieu of the original document:
Provided also that if a will is not in the English or Chinese language a translation into one of those languages certified to the satisfaction of the Registrar shall also be filed with the original will.
Where the Registrar considers that in any particular case a photographic copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for photographic reproduction to be lodged.
Where a will contains alterations which are not admissible to proof, there shall be lodged an engrossment of the will in the form in which it is to be proved.
Any engrossment lodged under this rule shall reproduce the punctuation, spacing and division into paragraphs of the will and, if it is one to which paragraph (2) of this rule applies, it shall be made bookwise on durable paper following continuously from page to page on both sides of the paper.
Where any pencil writing appears on a will, there shall be lodged a copy of the will or of the pages or sheets containing the pencil writing, in which there shall be underlined in red ink those portions which appear in pencil in the original.
Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Registrar that there is some doubt about the due execution of the will, he shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed:Provided always that if a will is in Chinese characters and appears to be satisfactorily executed by the testator the Registrar may assume without further inquiry that the will has been properly executed.
If no affidavit can be obtained in accordance with the last foregoing paragraph, the Registrar may, if he thinks fit having regard to the desirability of protecting the interests of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the will.
If the Registrar, after considering the evidence—
is satisfied that the will was not duly executed, he shall refuse probate and shall mark the will accordingly;
is doubtful whether the will was duly executed, he may require the matter to be referred to the court on motion.
Before admitting to proof a will in the English or Chinese language which appears to have been signed by a blind or illiterate testator or a testator not having a literate knowledge of that language or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the Registrar shall satisfy himself that the testator had such knowledge.
Where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by the Wills Ordinance (Cap. 30) or by the reexecution of the will or by the execution of a codicil, the Registrar shall require evidence to show whether the alteration was present at the time the will was executed and shall give directions as to the form in which the will is to be proved:Provided that this paragraph shall not apply to any alteration which appears to the Registrar to be of no practical importance.
If from any mark on a will it appears to the Registrar that some other document has been attached to the will, or if a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the Registrar may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may think fit.
Where there is doubt as to the date on which a will was executed, the Registrar may require such evidence as he thinks necessary to establish the date.
Any appearance of attempted revocation of a will by burning, tearing, or otherwise, and every other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the Registrar’s satisfaction.
The Registrar may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 11, 12 and 13, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a will the deponent shall depose to the manner in which the will was executed.
If it appears to the Registrar that there is prima facie evidence that a will is one to which section 6 of the Wills Ordinance (Cap. 30), as amended by any subsequent enactment, applies, the will may be admitted to proof if the Registrar is satisfied that it was signed by the testator or, if unsigned, that it is in the testator’s handwriting.
Where evidence of the law of a country or place outside Hong Kong is required on any application for a grant the affidavit of any person who is an expert of the law of that country or place may be accepted by the Registrar.
The person or persons entitled to a grant of probate or administration with the will annexed shall be determined in accordance with the following order of priority, namely—
the executor;
any residuary legatee or devisee holding in trust for any other person;
any residuary legatee or devisee for life;
the ultimate residuary legatee or devisee or, where the residue is not wholly disposed of by the will, any person entitled to share in the residue not so disposed of (including the Official Administrator) or, subject to rule 25(3), the personal representative of any such person:Provided that where the residue is not in terms wholly disposed of, the Registrar may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made (subject however to rule 37) to any legatee or devisee entitled to, or to a share in, the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the will;
any specific legatee or devisee or any creditor or, subject to rule 25(3), the personal representative of any such person or, where the estate is not wholly disposed of by the will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion thereto;
any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.
Where a gift to any person fails by reason of section 10 of the Wills Ordinance (Cap. 30) (which provides that gifts to attesting witnesses or their spouses shall be void), such person shall not have any right to a grant as a beneficiary named in the will, without prejudice to his right to a grant in any other capacity.
Where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority, namely—
the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;
the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
the father or mother of the deceased;
brothers and sisters of the deceased or the issue of any deceased brother or sister of the deceased who has died during the lifetime of the deceased.
If no person in any of the classes mentioned in subparagraphs (ii) and (iii) of the last foregoing paragraph has survived the deceased, then, the following persons hereinafter described shall, if they have a beneficial interest in the estate, be entitled to a grant in the following order of priority, namely—
grandparents;
uncles and aunts of the deceased, or the issue of any deceased uncle or aunt of the deceased who has died during the lifetime of the deceased.
All of the persons referred to in classes (i) and (ii) of this paragraph shall be entitled to a grant notwithstanding that the relationship referred to shall have been established by or resulted from a union of concubinage.
In default of any person having a beneficial interest in the estate, the Official Administrator.
If all persons entitled to a grant under the foregoing provisions of this rule have been cleared off, a grant may be made to a creditor of the deceased or to any person who, notwithstanding that he has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion thereto, or is, by virtue of section 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), entitled to apply to the court for an order under section 4 of that Ordinance. (58 of 1995 s. 32)
Subject to rule 25(3), the personal representative of a person in any of the classes mentioned in paragraphs (1) and (2) of this rule or the personal representative of a creditor shall have the same right to a grant as the person whom he represents:Provided that the persons mentioned in paragraph (1) and in paragraph (2) of this rule shall be preferred to the personal representative of a spouse who had died without taking a beneficial interest in the whole estate of the deceased as ascertained at the time of the application for the grant.
The provisions of the Adoption Ordinance (Cap. 290) shall apply in determining the entitlement to a grant as they apply to the devolution of property on intestacy.
Where all the persons entitled to the estate of the deceased (whether under a will or on intestacy) have assigned their whole interest in the estate to one or more persons, the assignee or assignees shall replace, in the order of priority for a grant of administration, the assignor or, if there are 2 or more assignors, the assignor with the highest priority.
Where there are 2 or more assignees, administration may be granted with the consent of the others to any one or more (not exceeding 4) of them.
In any case where administration is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Registry.
An application to join with a person entitled to a grant of administration a person entitled in a lower degree shall, in default of renunciation by all persons entitled in priority to such last-mentioned person, be made to the Registrar and shall be supported by an affidavit by the person entitled by the consent of the person proposed to be joined as personal representative and by such other evidence as the Registrar may require.
An application under section 25(2) of the Ordinance to add a personal representative shall be made to the Registrar and shall be supported by an affidavit by the applicant by the consent of the person proposed to be added as personal representative and by such other evidence as the Registrar may require.
A grant may be made to any person entitled thereto without notice to any other persons entitled in the same degree.
A dispute between persons entitled to a grant in the same degree shall be brought by summons before the Registrar.
Unless the Registrar otherwise directs, administration shall be granted to a living person in preference to the personal representative of a deceased person who would, if living, be entitled in the same degree and to a person not under disability in preference to an infant entitled in the same degree.
Upon the issue of a summons under paragraph (2) of this rule the person issuing such summons shall enter a caveat.
If a summons is issued under paragraph (2) of this rule the Registrar shall not allow any grant to be sealed until such summons is finally disposed of.
Nothing in rule 19, 21, 23 or 25 shall operate to prevent a grant being made to any person to whom a grant may or may require to be made under any enactment.
The rules mentioned in the last foregoing paragraph shall not apply where the deceased died domiciled outside Hong Kong, except in a case to which the proviso to rule 29 applies.
When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant and has consented to administration being granted to a person or persons who would be entitled to his estate if he himself had died intestate, administration may be granted to such person or one or more (not exceeding 4) of such persons:
Provided that a surviving spouse shall not be regarded as a person in whom the estate has vested absolutely unless he would be entitled to the whole of the estate, whatever its value may be.
Where the deceased died domiciled outside Hong Kong, the Registrar may order that a grant do issue—
to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;
to the person entitled to administer the estate by the law of the place where the deceased died domiciled;
if there is no such person as is mentioned in paragraphs (a) and (b) of this rule or if in the opinion of the Registrar the circumstances so require to such person as the Registrar may direct;
if, by virtue of section 25 of the Ordinance, a grant is required to be made to, or if the Registrar in his discretion considers that a grant should be made to, not less than two administrators, to such person as the Registrar may direct jointly with any such person as is mentioned in paragraph (a) or (b) of this rule or with any other person:
Provided that without any such order—
probate of any will which is admissible to proof may be granted—
if the will is in the English or Chinese language, to the executor named therein;
if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person;
where the whole of the estate in Hong Kong consists of immovable property, a grant limited thereto may be made in accordance with the law which would have been applicable if the deceased had died domiciled in Hong Kong. (L.N. 31 of 1976)
Where a person entitled to a grant resides outside Hong Kong, administration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Registrar may direct:
Provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any, unless such notice is dispensed with by the Registrar.
Where a person to whom a grant would otherwise be made is under the age of 21 years, administration for his use and benefit until he attains that age shall, subject to paragraphs (3) and (5) of this rule, be granted—
to the parents of the person jointly or to any guardian appointed by the court; or
if there is no such guardian able and willing to act and the person has attained the age of 16 years, to any next of kin nominated by the person or, where the person is a married woman, to any such next of kin or to her husband if nominated by her.
Any next of kin or husband nominated under subparagraph (b) of the last foregoing paragraph may represent any other person whose next of kin he is, being a person below the age of 16 years entitled in the same degree as the person who made the nomination.
Notwithstanding anything in this rule, administration for the use and benefit of the person under the age of 21 years until he attains that age may be granted to any person assigned as guardian by order of the Registrar in default of, or jointly with, or to the exclusion of, any such person as is mentioned in paragraph (1) of this rule; and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the Registrar, an affidavit of fitness sworn by a responsible person.
Where by virtue of section 25 of the Ordinance, a grant is required to be made to not less than 2 administrators and there is only one person competent and willing to take a grant under the foregoing provisions of this rule, administration may, unless the Registrar otherwise directs, be granted to such person jointly with any other person nominated by him as a fit and proper person to take the grant.
Where a person under the age of 21 years who is sole executor has no interest in the residuary estate of the deceased, administration for the use and benefit of the person until he attains the age of 21 years shall, unless the Registrar otherwise directs, be granted to the person entitled to the residuary estate.
The right to administration of a person under the age of 21 years may be renounced only by a person assigned as guardian under paragraph (3) of this rule and authorized to renounce by the Registrar.
Where one of 2 or more executors is a person under the age of 21 years, probate may be granted to the other executor or executors not under the age of 21 years nor under disability, with power reserved of making the like grant to the first mentioned executor on his attaining the age of 21 years, and administration for the use and benefit of the first mentioned executor until he attains the age of 21 years may be granted under rule 31 if and only if the executors who are not under the age of 21 years nor under disability renounce, or, on being cited to accept or refuse a grant, fail to make an effective application therefor.
The right of an executor under the age of 21 years to be granted probate on attaining that age may not be renounced by any person on his behalf.
Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs administration for his use and benefit limited during his incapacity or in such other way may be granted—
if the person incapable is entitled as executor, to the person entitled to the residuary estate of the deceased;
if the person incapable is entitled otherwise than as an executor, to the person who would be entitled to a grant in respect of his estate if he had died intestate.
No grant of administration shall be made under this rule unless all persons entitled in the same degree as the person incapable have been cleared off.
In the case of physical incapacity, notice of intended application under this rule shall be given to the person alleged to be incapable.
Where a trust corporation applies for a grant through one of its officers such officer shall lodge a certified copy of the resolution authorizing him to make the application and shall depose in the oath that the corporation has been certified as being a trust corporation as provided by section 78 of the Trustee Ordinance (Cap. 29) and that it has power to accept a grant:Provided that it shall not be necessary to lodge a certified copy of the resolution where the trust corporation is represented by a person holding an official position if the person through whom the application is made is included in a list filed with the Registrar of persons authorized to make such applications.
Where a trust corporation applies for a grant of administration otherwise than as attorney for some person, there shall be lodged with the application the consents of all persons entitled to a grant and of all persons interested in the residuary estate of the deceased, unless the Registrar directs that such consents be dispensed with on such terms, if any, as he may think fit.
Where a corporation (not being a trust corporation) would, if an individual, be entitled to a grant, administration for its use and benefit, limited until further representation is granted, may be granted to its nominees or, if the corporation has its principal place of business outside Hong Kong, its nominees or lawfully constituted attorney, and a copy of the resolution appointing the nominee or, as the case may be, the power of attorney sealed by the corporation or otherwise authenticated to the Registrar’s satisfaction, shall be lodged with the application for a grant, and the oath shall state that the corporation is not a trust corporation.
Where a corporation (not being a trust corporation) applies for a grant the Registrar may, in his discretion, grant administration to its nominee, for its use and benefit, limited until further representation is granted, and a copy of the resolution appointing the nominee sealed by the corporation or otherwise authenticated to the Registrar’s satisfaction, shall be lodged with the application for a grant, and the oath shall state that the corporation is not a trust corporation.
Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.
Unless the Registrar otherwise directs, no person who has renounced administration in one capacity may obtain a grant thereof in some other capacity.
In any case in which it appears that the Government is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant shall be given by the applicant to the Official Administrator, and the Registrar may direct that no grant shall issue within a specified time after the notice has been given.
The Registrar shall not require a guarantee under section 46 of the Ordinance as a condition of granting administration except where it is proposed to grant it—
by virtue of rule 19(v) or rule 21(4) to a creditor or the personal representative of a creditor or to a person who has no immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;
under rule 27 to a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate, be entitled to his estate;
under rule 30 to the attorney of a person entitled to a grant;
under rule 31 for the use and benefit of a person under the age of 21 years; (L.N. 231 of 1990)
under rule 33 for the use and benefit of a person who is by reason of mental or physical incapacity incapable of managing his affairs;
to an applicant who appears to the Registrar to be resident elsewhere than in Hong Kong,
or except where the Registrar considers that there are special circumstances making it desirable to require a guarantee.
Notwithstanding that it is proposed to grant administration as aforesaid, a guarantee shall not be required, except in special circumstances, on an application for administration where the applicant or one of the applicants is—
a trust corporation;
a solicitor holding a current practising certificate under the Legal Practitioners Ordinance (Cap. 159).
Every guarantee entered into by a surety for the purposes of section 46 of the Ordinance shall be in the specified form. (L.N. 33 of 1992)
Except where the surety is a corporation, the signature of the surety on every such guarantee shall be attested by an authorized officer, commissioner for oaths or other person authorized by law to administer an oath.
Unless the Registrar otherwise directs—
if it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed $7,000 or a corporation is a proposed surety, and in those cases one will suffice;
no person shall be accepted as a surety unless he is resident in Hong Kong;
no officer of the Registry shall become a surety;
the limit of the liability of the surety or sureties under a guarantee given for the purposes of section 46 of the Ordinance shall be the gross amount of the estate as sworn on the application for the grant;
every surety, other than a corporation shall justify.
Where the proposed surety is a corporation there shall be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the guarantee in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the Registrar that its assets are sufficient to satisfy all claims which may be made against it under any guarantee which it has given or is likely to give for the purposes of section 46 of the Ordinance:Provided that the Registrar may, instead of requiring an affidavit in every case, accept an affidavit made not less often than once in every year together with an undertaking by the corporation to notify the Registrar forthwith in the event of any alteration in its constitution affecting its power to become surety under that subsection.
On an application for the resealing of a grant of administration under Part IV of the Ordinance—
the Registrar shall not require sureties under section 46 of the Ordinance as a condition of sealing the grant except where it appears to him that the grant is made to a person or for a purpose mentioned in paragraphs (a) to (f) of rule 38(1) or except where he considers that there are special circumstances making it desirable to require sureties;
rules 5(4) and 38(2), (4), (5) and (6) shall apply with any necessary modifications; and
a guarantee entered into by a surety for the purposes of the said section 46 shall be in the specified form. (L.N. 33 of 1992)
An application for leave under section 47(2) of the Ordinance to sue a surety on a guarantee given for the purposes of section 46 of the Ordinance shall, unless the Registrar otherwise directs under rule 60, be made by summons to the Registrar, and notice of the application shall in any event be served on the administrator, the surety and any co-surety.
Where the Estate Duty Ordinance (Cap. 111) applies in relation to the estate of a person, an application for the grant in respect of the estate shall be supported by such documents as may be required under that Ordinance.
Any person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat in the Registry.
Any person who wishes to enter a caveat (in this rule called the caveator) may do so by completing an appropriate specified form in the appropriate book at the Registry and obtaining an acknowledgment of entry from the proper officer, or by sending through the post at his own risk a notice in the specified form addressed to the Registrar.
Where the caveat is entered by a solicitor on the caveator’s behalf, the name of the caveator shall be stated in the form completed in accordance with paragraph (2).
Except as otherwise provided by this rule, a caveat shall remain in force for 6 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.
The Registrar shall maintain an index of caveats entered in the Registry and on receiving an application for a grant, he shall cause the index to be searched.
The Registrar shall again cause the index to be searched before he shall allow any grant to be sealed and shall not allow any grant to be sealed if there is an effective caveat in respect thereof: Provided that no caveat shall operate to prevent the sealing of a grant on the day on which the caveat is entered.
A caveat may be warned by the issue from the Registry of a warning in the specified form at the instance of any person interested (in this rule called the person warning) which shall state his interest and, if he claims under a will, the date of the will, and shall require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning shall be served on the caveator.
A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the Registry and the caveat shall thereupon cease to have effect and, if it has been warned, the caveator shall forthwith give notice of withdrawal of the caveat to the person warning.
A caveator having an interest contrary to that of the person warning may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under paragraph (11) of this rule, enter an appearance in the Registry by filing an appropriate specified form and making an entry in the appropriate book, and shall forthwith thereafter serve on the person warning a copy of that form sealed with the seal of the court.
A caveator having no interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person may, within 8 days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if no affidavit has been filed under paragraph (11) of this rule, enter an appearance to the warning and issue and serve a summons for directions, which shall be returnable before the Registrar.
If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the Registry an affidavit showing that the warning was duly served and that he has not received a summons for directions under the last foregoing paragraph, and thereupon the caveat shall cease to have effect. (L.N. 266 of 1983)
Upon the commencement of a probate action the Registrar shall, in respect of each caveat then in force (other than a caveat entered by the plaintiff), give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending shall likewise notify the caveator of the existence of the action.
Unless the Registrar otherwise directs—
any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to paragraph (8) of this rule, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect; (E.R. 1 of 2020)
any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action;
the commencement of a probate action shall, whether or not any caveat has been entered, operate to prevent the sealing of a grant (other than a grant under section 40 of the Ordinance) until application for a grant is made by the person shown to be entitled thereto by the decision of the court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under paragraph (11A) of this rule, shall cease to have effect.
Except with the leave of the Registrar, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (11) or (12) of this rule.
Every citation shall be settled by the Registrar before being issued.
Every averment in a citation, and such other information as the Registrar may require, shall be verified by an affidavit sworn by the person issuing the citation (in these rules called the citor) or, if there are two or more citors, by one of them:Provided that the Registrar may in special circumstances accept an affidavit sworn by the citor’s solicitor.
The citor shall enter a caveat before issuing a citation.
Every citation shall be served personally on the person cited unless the Registrar, on cause shown by the affidavit, directs some other mode of service, which may include notice by advertisement.
Every will referred to in a citation shall be lodged in the Registry before the citation is issued, except where the will is not in the citor’s possession and the Registrar is satisfied that it is impracticable to require it to be lodged.
A person who has been cited to appear may, within eight days of service of the citation upon him inclusive of the day of such service, or at any time thereafter if no application has been made by the citor under rule 46(5) or rule 47(2), enter an appearance in the Registry by filing an appropriate specified form and making an entry in the appropriate book, and shall forthwith thereafter serve on the citor a copy of that form sealed with the seal of the court. (L.N. 33 of 1992)
A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the will or of the executors of the last survivor of deceased executors who have proved.
A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of 6 months from the death of the deceased:Provided that no citation to take a grant shall issue while proceedings as to the validity of the will are pending.
A person cited who is willing to accept or take a grant may apply ex parte to the Registrar for an order for a grant on filing an affidavit showing that he has entered an appearance and that he has not been served by the citor with notice of any application for a grant to himself.
If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may—
in the case of a citation under paragraph (1) of this rule, apply to the Registrar for an order for a grant to himself;
in the case of a citation under paragraph (2) of this rule, apply to the Registrar for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights in respect of the executorship have wholly ceased;
in the case of a citation under paragraph (3) of this rule, apply to the Registrar by summons (which shall be served on the person cited) for an order requiring such person to take a grant within a specified time, or for a grant to himself or to some other person specified in the summons.
An application under the last foregoing paragraph shall be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.
If the person cited has entered an appearance but has not applied for a grant under paragraph (4) of this rule, or has failed to prosecute his application with reasonable diligence, the citor may—
in the case of a citation under paragraph (1) of this rule, apply by summons to the Registrar for an order for a grant to himself;
in the case of a citation under paragraph (2) of this rule, apply by summons to the Registrar for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in paragraph (5)(b) of this rule;
in the case of a citation under paragraph (3) of this rule, apply by summons to the Registrar for an order requiring the person cited to take a grant within a specified time, or for a grant to himself or to some other person specified in the summons,
and the summons shall be served on the person cited.
A citation to propound a will shall be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.
If the time limited for appearance has expired and no person cited has entered an appearance, or if no person who has appeared proceeds with reasonable diligence to propound the will, the citor may apply on motion for an order for a grant as if the will were invalid.
All caveats, citations, warnings and appearances shall contain an address for service within the jurisdiction.
An application under section 7(1) of the Ordinance for an order requiring a person to bring in a will or to attend for examination may be made to a judge by summons, which shall be served on every such person as aforesaid.
An application under section 7(3) of the Ordinance for the issue by the Registrar of a subpoena to bring in a will shall be supported by an affidavit setting out the grounds of the application, and if any person served with the subpoena denies that the will is in his possession or control he may file an affidavit to that effect.
An application for an order for—
a grant of administration under section 36 of the Ordinance; or (E.R. 1 of 2020)
a grant of administration ad colligenda bona,
may be made to the Registrar, and shall be supported by an affidavit setting out the grounds of the application.
An application for leave to swear to the death of a person in whose estate a grant is sought may be made to the Registrar and shall be supported by an affidavit setting out the grounds of the application and containing particulars of any policies of insurance effected on the life of the presumed deceased.
An application for an order admitting to proof a nuncupative will, or a will which it is claimed is valid according to the provisions contained in the Wills Ordinance (Cap. 30) or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made to the Registrar:
Provided that where a will is not available owing to its being retained in the custody of a court of justice outside Hong Kong or of an official of a government other than the Government of the Hong Kong Special Administrative Region, a duly authenticated copy of the will may be admitted to proof without any such order as aforesaid.
An application for an order for a grant of special administration under section 37 of the Ordinance where a personal representative is residing outside Hong Kong shall be made to the court on motion.
Where copies are required of original wills or other documents deposited under section 74 of the Ordinance, such copies may be photographic copies sealed with the seal of the court.
Copies not being photographic copies, of original wills or other documents deposited under the said section shall be examined against the documents of which they purport to be copies only if so required by the person demanding the copy, and in such case the copy shall be certified under the hand of the Registrar and may in addition be sealed with the seal of the court.
Every bill of costs (other than a bill delivered by a solicitor to his client which falls to be taxed under the Legal Practitioners Ordinance (Cap. 159)) shall be referred to the Registrar for taxation and shall be taxed in accordance with the provisions contained in Order 62 of the Rules of the High Court (Cap. 4 sub. leg. A). (25 of 1998 s. 2)
The fees payable on taxation shall be paid by the party on whose application the bill is taxed and shall be allowed as part of the bill.
The Registrar may require any application made to him to be brought before him by summons, and may require any application made to him, whether by summons or otherwise, to be brought before a judge by summons or before the court on motion.
An executor or administrator may apply to the Registrar by ex parte summons for an order limiting the time for creditors or other persons to make claims against the estate of the testator or intestate and the Registrar shall make such order as he thinks fit specifying what notices are to be given of the making of such order and the time thereby limited and make such order thereon as he thinks proper.
Any person aggrieved by a decision of the Registrar may appeal by summons to a judge.
If any person besides the appellant appeared or was represented before the Registrar from whose decision or requirement the appeal is brought, the summons shall be issued within 7 days thereof for hearing on the first available day and shall be served on every such person as aforesaid.
A judge or the Registrar may direct that a notice of motion or summons for the service of which no other provision is made by these rules shall be served on such person or persons as the judge or the Registrar may direct.
Where by these rules or by any direction given under the last foregoing paragraph a notice of motion or summons is required to be served on any person, it shall be served—
in the case of a notice of motion, not less than 5 clear days before the day named in the notice for hearing of the motion;
in the case of a summons, not less than 2 clear days before the day appointed for the hearing, unless a judge or the Registrar at or before the hearing, dispenses with service on such terms, if any, as he may think fit.
Unless the Registrar otherwise directs, or these rules otherwise provide, any notice or other document required to be given to or served on any person may be given or served by leaving it at, or by sending it by prepaid registered post to, that person’s address for service or, if he has no address for service, his last known address.
Every affidavit used in non-contentious probate business shall be in the form required by the Rules of the High Court (Cap. 4 sub. leg. A) in the case of affidavits to which those rules apply.
Notwithstanding Order 41 rule 11 of the Rules of the High Court (Cap. 4 sub. leg. A), a copy of a document to be used in conjunction with an affidavit need not, unless the Registrar otherwise directs, be exhibited to the affidavit if the original document is already filed in the Registry. (L.N. 266 of 1983)
(25 of 1998 s. 2;E.R. 1 of 2020)
The provisions of Order 3 and Order 65 rule 7 of the Rules of the High Court (Cap. 4 sub. leg. A) shall apply to the computation, enlargement, and abridgement of time under these rules except that nothing in Order 3 shall prevent time from running in the Long Vacation.
(L.N. 266 of 1983; 25 of 1998 s. 2; E.R. 1 of 2020)
Subject in any particular case to any direction given by a judge or the Registrar, these rules shall apply to any proceeding which is pending on the date on which they come into operation as well as to any proceeding commenced on or after that date.
(Repealed L.N. 33 of 1992)