Mak Shue Fai v. Chan Shui Hing

HCMP 1236/2018

[2019] HKCFI 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1236 OF 2018

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REASONS FOR JUDGMENT

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1.The plaintiff and the defendant are son and mother. On 20 February 2018, the defendant obtained the Letters of Administration in respect of the estate of her deceased husband, father of the plaintiff (Grant No HCAG 002405/2018). The plaintiff commenced these proceedings for revocation of the grant on the ground that the Deceased left a will dated 24 August 2007 in which the plaintiff was named as the executor, and him andthe mother as the beneficiaries. At the end of the hearing, I gave the order sought. As indicated, I now give my reasons.

2.According to the plaintiff, the grant was applied for and obtained without his prior knowledge, and he was informed of that in June 2018 only when he tried to apply for probate.  On this basis, the plaintiff sought the consent of the mother to the revocation of the grant.  Written consent was then prepared by the plaintiff’s solicitors, which the mother, apparently illiterate, appended her signature by symbol and thumb print.  The document was attested by two witnesses.

3.The plaintiff followed by proceeding on the basis that these proceedings would be non-contentious.  Indeed, the mother was absent from the first hearing before the master.  The master took the caution of directing for affirmation evidence to be filed to explain the circumstances in which the mother gave her written consent.  This the plaintiff duly complied with subsequently.

4.However, the mother appeared at the second hearing before the master.  Not only that, she apparently opposed the application, and disputed the written consent on the basis of her ignorance of its content and effect.  Direction for the parties to file further affidavit evidence was thus given.  The matter was eventually adjourned to be heard before a judge.  Hence this hearing.

5.The approach of the court in a case where the applicant is uncertain if the application will be opposed was set out in the judgment of Re Estate of Cheng Ki Sang [2009] 2 HKLRD 533.  The same has since become §19 of Practice Directions 20.2.  The applicant has two options:

(1)   The applicant may treat the matter as contentious business and commence a probate action under Order 76.

(2)   Alternatively, the applicant may issue an ordinary originating summons and seek directions from the court for the purpose of ascertaining the position of the grantee.  If the application is opposed, direction may be given to convert the proceedings into an action as if it was begun by writ.

6.The plaintiff, armed with the written consent of the mother, commenced these proceedings on a non-contentious basis.  What this court needs to consider now is whether these proceedings ought to be converted into a writ action because of the mother’s change of stance.

7.The consideration should not differ from any given case under Order 28, Rules of the High Court.  In other words, the court is entitled to consider whether genuine dispute is indeed raised by the opponent.  As Johnson Lam J (as the Vice President then was) said in Cheng Ki Sang (above) at §7, where the opposition is clearly frivolous, the matter can still be disposed of at a hearing of the originating summons.

8.In the present case, the affirmation evidence reveals that the mother, apparently with the support of other family members who are not beneficiaries of the estate one way or the other, put forward complaints not just about how the plaintiff obtained her written consent to the revocation of the grant but also how the plaintiff has behaved towards, amongst other things, contributing towards the funeral expenses.  The complaint has more to do with how the plaintiff is expected to behave as a dutiful son.

9.I agree with Mr Kwong for the plaintiff that none of the defendant’s complaints is relevant to the present application.  The fact is that there is no suggestion or material in support of any dispute as to the existence or validity of the will of the deceased.

10.The very fact of the existence of the will of the deceased suffices as a ground for concluding that the grant ought not to have been made and therefore ought to be revoked.

11.In the circumstances, there exist no issue which would have prevented summary disposal of these proceedings.

12.I therefore made the following order:

(1)   The grant of Letters of Administration under Grant No HCAG 002405/2018 issued on 20 February 2018 to the defendant be revoked and be declared null and void.

(2)   The defendant shall forthwith deliver up the original of the Letters of Administration for the purpose of (1) above.

13.The plaintiff asked for costs.

14.I agreed that he has valid basis for seeking costs at least from the moment when the further proceedings of this application could and should have been avoided but for the persistent opposition of the defendant.  With the information provided, I ordered that the costs of the application up to 1 November 2018 be paid out of the estate and the costs thereafter be paid by the defendant.

15.I was asked not to carry out summary assessment, because, albeit manifestation of his right on costs, the plaintiff, counsel suggested, may still explore coming to terms with the mother so that the costs order may not be enforced.  I therefore did not insist and made the usual order for costs to be taxed, if not agreed.  However, upon further consideration after the hearing, I decided to vary this part of the order so that unless agreed between the parties, the plaintiff’s costs shall be summarily assessed on paper, and for that purpose, the plaintiff shall submit his statement of costs within 14 days, and the defendant shall lodge and serve her comment in writing within 7 days thereafter.  Effectively the parties still have the time to consider coming to terms as to costs, failing which the costs ought to be assessed summarily.

16.I heard the parties in Chinese.  As indicated, court interpreter’s assistance could be arranged, if requested, for the defendant in receiving this reasons.

Mr Jeremy Kwong, instructed by Iu, Lai & Li, for the plaintiff

The defendant appeared in person