Read the full judgment text of CACV 239/2018 on BabelCite. This Court of Appeal judgment was delivered on 13 February 2019 before Lam VP, Au JA and G Lam J.
Probate and administration – removal of executor – appeal – Section 33(3) of the Probate and Administration Ordinance, Cap 10 – due and proper administration of estate – interests of beneficiaries – fresh evidence on appeal – Ladd v Marshall test – Court of Appeal civil appeal from HCMP 3186/2016. The Plaintiff and Defendant are brothers. Their mother passed away in 2012 leaving a will dated 16 June 1997 appointing the Defendant as sole executor and trustee. The Defendant obtained Grant of Probate in December 2013. The residuary estate was divided into five shares, with the Plaintiff holding one share, the Defendant two shares, the sister one share, and the Defendant's two sons one share jointly. The Plaintiff issued an originating summons seeking an inventory and account, inspection of documents, and removal of the Defendant as executor. The judge below found that the Defendant had placed himself in a position of conflict by occupying Flat 907 of the Estate for his own use free of charge, had failed to recognise such conflict, and had put forward spurious reasons to justify his occupation. The judge also noted the Defendant's failure to produce a proper and full account when called upon. The judge removed the Defendant as executor and directed the nomination of a professional accountant, who was subsequently appointed administratrix. The Defendant appealed. On the application for leave to adduce fresh evidence, the court held that the Ladd v Marshall test applied and the first condition was not satisfied because the evidence could have been obtained with reasonable diligence before the hearing below. On the merits, the court held that the criteria for removal under s.33(3) of the Probate and Administration Ordinance, Cap 10 focus on whether removal is required for the due and proper administration of the estate and the interests of the beneficiaries, and the principles regarding the cautious and sparing exercise of the power of removal do not supplant the statutory criteria. An appellate court reviews such discretionary assessments on a discretion-challenge basis. The court held that the judge was plainly aware of the normative significance of the Defendant's appointment by the testatrix and properly directed himself to the statutory criteria before exercising the power of removal. The court also held that there is no requirement in law to join all beneficiaries, and the statutory criteria refer to the 'interests' rather than the 'wishes' of the beneficiaries. The Defendant's third ground alleging failure to consider various matters lacked merit because those matters were either fully canvassed and rejected, or were raised without sufficient evidential backing, or were immaterial in light of the more serious derelictions found by the judge. The court further noted that even if it were to exercise the discretion afresh, it would have reached the same conclusion given the seriousness of the derelictions and the Defendant's demonstrable absence of insight. Appeal dismissed with costs to the Plaintiff on a certificate for two counsel basis.
Legal issues: Admissibility of fresh evidence on appeal under Ladd v Marshall test · Whether Judge erred in removing executor by overlooking normative significance of testatrix's appointment · Whether Judge erred in failing to consider wishes of other beneficiaries · Whether Judge failed to consider or overlooked relevant matters
Outcome: Appeal dismissed. The Defendant's removal as executor and the appointment of a new administratrix stand.
Cited by 4 cases · Cites 8 cases