Tsang Ting Hin Benjamin and Others v. Man Chun Heung and Another

HCMP 535/2019

[2019] HKCFI 2563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 535 OF 2019

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REASONS FOR DECISION

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1.On 10 April 2019, Tsang Ting Hin Benjamin, Tsang Ting Hon Crane and Tsang Ting Bun Donner (collectively, the plaintiffs) issued an originating summons (the “Originating Summons”) seeking the following relief:

“An Order that, subject to the filing of all requisite papers leading to a grant of representation to the estate of Tsang Koon Bo George (the ‘Deceased’) and compliance with the requirements of the Registrar, the 1^st, 2^nd and 3^rd Plaintiffs be appointed as administrators of the estate of the Deceased and letters of administration of all and similar the real and personal estate and effects of the Deceased be granted to the 1^st, 2^nd and 3^rd Plaintiffs,pursuant to section 36 of the Probate and Administration Ordinance, Cap.10.”

2.On 16 August 2019, I made an order in terms of the Originating Summons.  I now give my reasons.

Background

3.The 1^st, 2^nd and 3^rd plaintiffs are all sons and issues of the Deceased and his first wife Ms Tong Choi Har Julianna (“Ms Tong”).They are all of the age of majority.  The Deceased and Ms Tong divorced in 2001.

4.The Deceased then proceeded to marry the 1^st defendant. The 1^st defendant is the widow of the Deceased.

5.The 2^nd defendant is the daughter of the Deceased and the 1^st defendant.  She is not of the age of majority at the time the present proceedings were taken out and being heard.

6.The plaintiffs took out the present proceedings because the 1^st defendant, notwithstanding her priority to apply for letters of administration, has despite reminders from the plaintiffs, refused and/or failed to apply for any grant of letters of administration since the Deceased’s death on 27 January 2018.

7.The defendants have not appeared at the hearing.  They must have knowledge of the present proceedings as they filed an acknowledgment of service.

8.The plaintiffs have also satisfied the Court that they have duly served all relevant papers on the defendants.  On 14 August 2019,the plaintiffs’ solicitors filed the 2^nd Affirmation of Chan Chun Man which confirmed that service of the hearing bundles, written submissions, list of authorities and notice of the hearing of 16 August 2019 which were all duly served on the defendants.

Applicable legal principles

9.Section 36 of the Probate and Administration Ordinance, Cap 10 (the “Ordinance”) provides:

“Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate,other than the person who, if this Ordinance had not been passed,would by law have been entitled to a grant of administration of such estate, the court may, subject to section 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.”

10.In Re Estate of Chen Pang Ping Eugene [2016] 2 HKLRD 813, Kwan JA (as she then was) at §§22 – 25 said:

“22. The Judge referred to Re Ho Wai Man [2006] 4 HKLRD 421, in which Andrew Cheung J (as he then was) considered s.36 and held in [18] that it applies to four different, although to some extent overlapping, situations:

(1) where a person dies wholly intestate as to his estate;

(2) where a person dies … leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate;

(3) where the executor is, at the time of the death of such person [i.e. a person who has died leaving a will affecting estate], resident out of Hong Kong; or

(4) where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate,other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate.

23. In any one of the four situations, the court may appoint such person as it thinks fit to be the administrator. The passing over of the person with a prior right concerns directly the last situation in (4), and by implication, passing over would also occur in situation (3) (Re Ho Wai Man at [19] and [20]).

24. In this instance, the defendant relied on situation (4). The Judge took the view in [86] of her judgment that without conceding to intestacy and without conceding that the defendant is not willing and not competent to take probate, the defendant may not be able to rely on situation (4) for herself to be passed over.

25. It seems to me the Judge’s approach is too formalistic in insisting on concessions that should be made by the defendant before being satisfied that she could be passed over, instead of looking at the effect of the defendant’s words in her supporting affirmation and her conduct in seeking the appointment of an independent administrator.  As A Cheung J has said in Re Ho Wai Man at [38], the four situations identified in s.36 do not cover the situation ‘where the deceased person leaves a will appointing an executor/applicant who is willing and competent to take probate and who is resident within the jurisdiction’.  Here, the defendant has shown quite clearly, by her supporting affirmation (at paras.5–9) and by her conduct in asking for an independent administrator to be appointed, that she is not willing to take probate and has asked for herself to be passed over.  Before this court, Mr Miu further clarified the defendant’s position that she is content to ask the court to grant administration to an independent third party without the will annexed, on the basis of intestacy.”

Analysis

11.What is meant by passing over is to pass over the person with priority in entitlement to a grant of administration in favour of others. The 1^st defendant, being the widow of the Deceased, has first priority in entitlement to a grant of administration in respect of the Deceased’s estate,by virtue of rule 21 of the Non-Contentious Probate Rules (Cap 10A).

12.The plaintiffs asked the Court to pass over the 1^st defendant in favour of them.  I am satisfied that the plaintiffs, as sons of the Deceased, have the relevant standing to make the present application.  Further, they would have standing if they show themselves to be fit for appointment and it is necessary or convenient for them to be appointed.  The wide range of person who have standing to make an application under section 36 of the Ordinance is illustrated by the case of Re Estate of Chen Pang Ping Eugene, where the defendant daughter applied for and secured the appointment of an independent certified public accountant to be the administrator of the deceased’s estate.

13.Having dealt with the issue of standing, I am of the view that the plaintiffs have satisfied the Court that the 1^st defendant albeit enjoys a priority in applying for letters of administration of the Deceased’s estate should nonetheless be passed over as she has not indicated any intention to administer the estate of the Deceased:

(1)  As a matter of fact, since the Deceased’s death on 27 January 2018, the 1^st defendant has not expressed any intention nor taken any steps to proceed with the administration of the Deceased’s estate, be it on her own capacity or as guardian of the 2^nd defendant.

(2)  In the WeChat conversations between the 1^st plaintiff and the 1^st defendant, when the subject of administration of the Deceased’s estate came up, the 1^st defendant ended the discussion with an expression that she would not participate. This is consistent with her inaction since the death of the Deceased.

(3)  Despite filing an acknowledgment of service in these proceedings, and there being various affirmations of services setting out all papers of these proceedings being served on the 1^st defendant, she chose not to file any evidence or to defend the present proceedings.  Mr Hariman for the plaintiffs submitted that these all indicate that the 1^st defendant does not seriously oppose the present application.  I agree.

14.As for the 2^nd defendant, she enjoys the same status as the plaintiffs and does not need to be passed over.  She has not expressed any willingness to be appointed as an administratrix of the estate of the Estate.

15.Mr Hariman for the plaintiffs submitted that there is nothing to prevent the 2^nd defendant from applying to be appointed as an administratrix in the future if she so wishes.  However, that possibility should not operate as a bar to the plaintiffs’ present application to “get things moving” with the due and proper administration of the estate of the Deceased.  I agree.

16.Secondly, I am of the view that given the present circumstances it is both necessary and convenient for the plaintiffs to be appointed as administrators of the estate of the Deceased for the following reasons:

(1)  The Deceased’s estate has not been administrated since the death of the Deceased on 27 January 2018.  It is important that the administration of the estate of the Deceased should be attended progressed expeditiously.

(2)  There are bank accounts and valuables in the Deceased’s estate which needs to be properly administered and distributed for the benefit of all beneficiaries including the defendants.

(3)  Upon appointment as administrators, the plaintiffs would have the proper capacity and power to seek legal advice and deal with the real property of the estate of the Deceased which remains registered in the name of the plaintiffs’ grandparents.

17.Thirdly, I am satisfied that the plaintiffs are individuals fit to be appointed as administrators of the estate of the Deceased:

(1)  The plaintiffs are willing to act.  They rank highest in priority to be appointed as administrators after passing over the 1^st defendant.

(2)  The plaintiffs were close to the Deceased prior to his death. The plaintiffs were also trusted and well versed in the affairs of the Deceased.  Particularly in the case of the 1^st plaintiff,as evidenced by contemporaneous WhatsApp messages and correspondences, he helped the Deceased to manage his affairs before his death.

18.I agree that the circumstances in the present case do not merit the appointment of any independent third party as administrators.  This Court bears in mind that the size of the estate of the Deceased is not overly substantial and there are costs and expenses involved if an independent professional is to be appointed as an administrator of the estate of the Deceased.

Disposition

19.Mr Hariman for the plaintiffs has also helpfully referred this Court to the standard form of order made by Master J Wong, an experienced probate master, in Re Estate of To Chuen HCCA 2640/2006,unreported, 29 May 2008 at §21(c).

20.For all the above reasons, I duly exercise my discretion to make an order in terms of the Originating Summons.

21.Finally, it remains for me to thank Mr Hariman for the plaintiffs for his very helpful assistance rendered to this Court.

Mr Wayne Hariman, instructed by Cheung & Co, for the 1^st to 3^rd plaintiffs

Both the 1^st and 2^nd defendants were not represented and did not appear