Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 76

CONTENTIOUS PROBATE PROCEEDINGS

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Application
and interpretation (O. 76, r. 1)

(1) This Order applies to probate causes and matters, and the other provisions
of these rules apply to those causes and matters including applications for
the rectification of a will subject to the provisions of this Order.

(2) In these rules "probate action" (遺囑認證訴訟) means an action for
the grant of probate of the will, or letters of administration of the estate,
of a deceased person or for the revocation of such a grant or for a decree
pronouncing for or against the validity of an alleged will, not being an
action which is non-contentious or common form probate business.

(3) In this Order, "will" (遺囑) includes a codicil.

2. Requirements in connection with issue of writ (O. 76, r. 2)

(1) A probate action must be begun by writ.

(2) Before a writ beginning a probate action is issued it must be indorsed
with a statement of the nature of the interest of the plaintiff and of the
defendant in the estate of the deceased to which the action relates.

3. Parties to action for revocation of grant (O. 76, r. 3)

Every person who is entitled or claims to be entitled to administer the estate
of a deceased person under or by virtue of an unrevoked grant of probate of
his will or letters of administration of his estate shall be made a party to
any action for revocation of the grant.

4. Lodgment of grant in action for revocation (O. 76, r. 4)

(1) Where, at the commencement of an action for the revocation of a grant of
probate of the will or letters of administration of the estate of a deceased
person, the probate or letters of administration, as the case may be, have not
been lodged in court, then-

   (a)  if the action is commenced by a person to whom the grant was made, he
        shall lodge the probate or letters of administration in the Registry
        within 7 days after the issue of the writ;

   (b)  if any defendant to the action has the probate or letters of
        administration in his possession or under his control, he shall lodge
        it or them in the Registry within 14 days after the service of the
        writ upon him.

(2) Any person who fails to comply with paragraph (1) may, on the application
of any party to the action, be ordered by the Court to lodge the probate or
letters of administration in the Registry within a specified time; and any
person against whom such an order is made shall not be entitled to take any
step in the action without the leave of the  Court until he has complied with
the order.

5. Affidavit of testamentary scripts (O. 76, r. 5)

(1) Unless the Court otherwise directs, the plaintiff and every defendant who
has acknowledged service of the writ in a probate action must swear an
affidavit-

   (a)  describing any testamentary script of the deceased person, whose
        estate is the subject of the action, of which he has any knowledge or,
        if such be the case, stating that he knows of no such script; and

   (b)  if any such script of which he has knowledge is not in his possession
        or under his control, giving the name and address of the person in
        whose possession or under whose control it is or, if such be the case,
        stating that he does not know the name or address of that person.

(2) Any affidavit required by this rule must be filed, and an office copy
thereof and any testamentary script referred to therein which is in the
possession or under the control of the deponent, must be lodged in the
Registry within 14 days after the acknowledgment of service by a defendant to
the action or, if no defendant acknowledges service and the  Court does not
otherwise direct, before an order is made for the trial of the action.

(3) Where any testamentary script required by this rule to be lodged in the
Registry or any part thereof is written in pencil, then, unless the Court
otherwise directs, a facsimile copy of that script, or of the page or pages
thereof containing the part written in pencil, must also be lodged in the
Registry and the words which appear in pencil in the original must be
underlined in red ink in the copy.

(4) Except with the leave of the Court, a party to a probate action shall not
be allowed to inspect an affidavit filed, or any testamentary  script lodged,
by any other party to the action under this rule, unless and until an
affidavit sworn by him containing the information referred to in paragraph (1)
has been filed.

(5) In this rule "testamentary script" (遺囑性質的文稿) means a will or
draft thereof, written instructions for a will made by or at the request or
under the instructions of the testator and any document purporting to be
evidence of the contents, or to be a copy, of a will which is alleged to have
been lost or destroyed.

6. Failure to acknowledge service (O. 76, r. 6)

(1) Order 13 shall not apply in relation to a probate action.

(2) Where any of several defendants to a probate action fails to acknowledge
service of the writ, the plaintiff may, after the time for acknowledging
service has expired and upon filing an affidavit proving due service of the
writ, or notice of the writ, on that defendant proceed with the action as if
that defendant had acknowledged service.

(3) Where the defendant, or all the defendants, to a probate  action, fails or
fail to acknowledge service of the writ, then, unless on the application of
the plaintiff the Court orders the action to be discontinued, the plaintiff
may after the time limited for acknowledging service by the defendant apply to
the Court for an order for trial of the  action.

(4) Before applying for an order under paragraph (3) the plaintiff must file
an affidavit proving due service of the writ, or notice of the writ, on the
defendant and, if no statement of claim is indorsed on the writ, he must lodge
a statement of claim in the judge's chambers.

(5) Where the Court grants an order under paragraph (3), it may direct
the action to be tried on affidavit evidence.

7. Service of statement of claim (O. 76, r. 7)

The plaintiff in a probate action must, unless the Court gives leave to the
contrary or unless a statement of claim is indorsed on the writ, serve a
statement of claim on every defendant who acknowledges service of the writ in
the action and must do so before the expiration of 6 weeks after
acknowledgment of service by that defendant or of 8 days after the filing by
that defendant of an affidavit under rule 5, whichever is the later.

8. Counterclaim (O. 76, r. 8)

(1) Notwithstanding anything in Order 15, rule 2(1), a defendant to a
probate action who alleges that he has any claim or is entitled to any relief
or remedy in respect of any matter relating to the grant of probate of the
will, or letters of administration of the estate, of the deceased person which
is the subject of the action must add to his defence a counterclaim in respect
of that matter.

(2) If the plaintiff fails to serve a statement of claim, any such defendant
may, with the leave of the Court, serve a counterclaim and the  action shall
then proceed as if the counterclaim were the statement of  claim.

9. Contents of pleadings (O. 76, r. 9)

(1) Where the plaintiff in a probate action disputes the interest of a
defendant he must allege in his statement of claim that he denies the interest
of that defendant.

(2) In a probate action in which the interest by virtue of which a party
claims to be entitled to a grant of letters of administration is disputed, the
party disputing that interest must show in his pleading that if the
allegations made therein are proved he would be entitled to an interest in the
estate.

(3) Without prejudice to Order 18, rule 7, any party who pleads that at the
time when a will, the subject of the action, was alleged to have been executed
the testator did not know and approve of its contents must specify the nature
of the case on which he intends to rely, and no allegation in support of that
plea which would be relevant in support of any of the following other pleas,
that is to say-

   (a)  that the will was not duly executed;

   (b)  that at the time of the execution of the will the testator was not of
        sound mind, memory and understanding; and

   (c)  that the execution of the will was obtained by undue influence or
        fraud, shall be made by that party unless that other plea is also
        pleaded.

10. Default of pleadings (O. 76, r. 10)

(1) Order 19 shall not apply in relation to a probate action.

(2) Where any party to a probate action fails to serve on any other party a
pleading which he is required by these rules to serve on that other party,
then, unless the Court orders the action to be discontinued or dismissed, that
other party may, after the expiration of the period fixed by or under these
rules for service of the pleading in question, apply to the Court for an order
for trial of the action; and if an order is made the Court may direct
the action to be tried on affidavit evidence.

11. Discontinuance and dismissal (O. 76, r. 11)

(1) Order 21 shall not apply in relation to a probate action.

(2) At any stage of the proceedings in a probate action the Court may, on the
application of the plaintiff or of any party to the action who has
acknowledged service of the writ therein, order the action to be discontinued
or dismissed on such terms as to costs or otherwise as it thinks just, and may
further order that a grant of probate of the will, or letters of
administration of the estate, of the deceased person, as the case may be,
which is the subject of the action, be made to the person entitled thereto.

(3) An application for an order under this rule may be made by motion or
summons or by notice under Order 25, rule 7.

12. Compromise of action: trial on affidavit evidence (O. 76, r. 12)

Where, whether before or after the service of the defence in a probate 
action, the parties to the action agree to a compromise, the Court may order
the trial of the action on affidavit evidence.

13. Application for order to bring in will, etc. (O. 76, r. 13)

(1) Any application in a probate action for an order under section  7 (1) of
the Probate and Administration Ordinance ( Cap 10) shall be for an order
requiring a person to bring a will or other testamentary paper into the
Registry or to attend in court for examination.

(2) An application under paragraph (1) shall be made by summons in the action,
which must be served on the person against whom the order is sought.

(3) Any application in a probate action for the issue of a subpoena under
section 7(3) of the Probate and Administration Ordinance ( Cap 10) shall be
for the issue of a subpoena requiring a person to bring into the Registry a
will or other testamentary paper.

(4) An application under paragraph (3) may be made ex parte and must be
supported by an affidavit setting out the grounds of the application.

(5) An application under paragraph (3) shall be made to a master who may, if
the application is granted, authorize the issue of a subpoena accordingly.

(6) Any person against whom a subpoena is issued under section 7(3) of the
Probate and Administration Ordinance ( Cap 10) and who denies that the will or
other testamentary paper referred to in the subpoena is in his possession or
under his control may file an affidavit to that effect.

14. Administration pendente lite (O. 76, r. 14)

(1) An application under section 40 of the Probate and 
Administration Ordinance ( Cap 10) for an order for the grant of
administration may be made by summons.

(2) Where an order for a grant of administration is made under the said
section 40, Order 30, rules 2, 4 and 6 and (subject to section 60 of the
Probate and Administration Ordinance ( Cap 10)) rule 3 shall apply as if the
administrator were a receiver appointed by the Court.

15. Probate counterclaim in other proceedings (O. 76, r. 15)

(1) In this rule "probate counterclaim" (遺囑認證反申索) means a
counterclaim in any action other than a probate action by which the defendant
claims any such relief as is mentioned in rule 1(2).

(2) Subject to the following paragraphs, this Order shall apply with the
necessary modifications to a probate counterclaim as it applies to a
probate action.

(3) A probate counterclaim must contain a statement of the nature of the
interest of the defendant and of the plaintiff in the estate of the deceased
to which the counterclaim relates.

(4) Before it is served a probate counterclaim must be indorsed with a
memorandum signed by a master showing that the counterclaim has been produced
to him for examination and that three copies of it have been lodged with him.

16. Rectification of wills (O. 76, r. 16)

(1) Where an application is made for rectification of a will, and the grant
has not been lodged in court, rule 4 shall apply, with the necessary
modifications, as if the proceedings were a probate action.

(2) A copy of every order made for the rectification of a will shall be sent
to the principal Registry for filing, and a memorandum of the order shall be
endorsed on, or permanently annexed to, the grant under which the estate is
administered. (Enacted 1988)

"probate action" (遺囑認證訴訟)

"will" (遺囑)

"testamentary script" (遺囑性質的文稿)

"probate counterclaim" (遺囑認證反申索)