Posthumous adoption no longer possible in Hong Kong

In Liu Ying Lan v Liu Tung Yiu ([2003] 3 HKLRD 249, CA) F was an indigenous inhabitant of a village in the New Territories. He had two daughters, P and D2. He died in 1943 and his widow died in 1987. F’s nephew, D1, claimed to be entitled to F’s property in accordance with Chinese customary law as he was F’s nearest male relative. He also sought to be posthumously adopted by F. It was accepted that the Intestates’ Estates Ordinance did not apply in this case as F had died in 1943. D1 failed in both respects.

D1 was not entitled to succeed to F’s estate under the Qing Code since he had already inherited property from his own father. Chinese customary law prevented D1 from succeeding to the property of both his father and his uncle ([29] – [48]).

Further, posthumous adoption is no longer possible in Hong Kong ([67]). Section 25 of the Adoption Ordinance makes it clear that the only form of adoption possible is adoption under the Ordinance. The legislature had made its intention to override Chinese customary law in this respect very clear ([49]). Statute can vary Chinese customary law ([58] – [66]).

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