Chen Chiu Lai Fu Mary Evelyn Alias Chen Chiu Lai Fu Evelyn Mary v. Chiu Tai Choi Danny Alias Daniel Chiu and Others

HCMP 1355/2020

[2020] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1355 OF 2020

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Before: Hon K Yeung J in Chambers

Date of Hearing: 17 December 2020

Date of Decision: 17 December 2020

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DECISION

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1.This is the application by the plaintiff (“P”) by Originating Summons to remove the 1^st Defendant (“D1”) as the executor of the estate of the Deceased.

2.The Deceased died on 21 December 2017.  She had 4 surviving issues, who are, in descending order of age, P, D2, D1 and D3.  They themselves are in the sixties or seventies.

3.On 8 August 2018, D1 filed an application for probate of the estate of the Deceased at the Supreme Court of Santa Clara in the US.  In that application, it was stated that the Deceased died intestate.

4.However, P understood, through prior conversations between her, D1 and D2, that the Deceased had in fact made a will in Hong Kong (the “Will”) relating to her assets in Hong Kong, and that D1 had in fact shown D2 a copy of the Will.  P further gathered that a solicitor by the name of Edwina Cheung of Messrs Woo Kwan Lee & Lo (“WKLL”) had assisted the Deceased in the preparation of that Will.

5.Subsequent attempts by P to obtain a copy of the Will directly from D1 and WKLL had been unsuccessful.

6.On 26 July 2019, upon P’s application, a writ of subpoena was issued by Deputy Registrar C Chow ordering Edwina Cheung to bring into the Probate Registry a copy of the Will, which she did.

7.According to the contents of the Will, the Deceased’s estate in Hong Kong comprises at least 3 landed properties and not insubstantial deposits in a number of bank accounts.  D1 is named as the executor. 

8.Despite two caveats of 6 March 2019 and 14 August 2020 having been filed by P, D1 has still not applied for probate to administrate the estate.

9.On 2 September 2020, P issued the Originating Summons herein.

10.All Ds reside in the United States.  On 28 September 2020, P obtained leave to issue concurrent Originating Summons and to serve them on Ds outside jurisdiction.

11.I have read the relevant affirmations of service.  I am satisfied that the concurrent Originating Summons and the notice of the present hearing have validly been served upon all Ds.

12.D2 and D3 have each filed an acknowledgement of service indicating that they do not intend to defend the action.

13.D1 has failed to file any acknowledgement of service.

14.On the law, I have been cited Re Estate of Kwan Chung [2013] 6 HKC 29, Re Lam Choi Hing [2007] 1 HKLRD 23 and Re Li Sing Kui Deceased [2019] HKCFI 1086, which I apply. 

15.It has been 3 years since the death of the Deceased.  D1 according to the evidence all along has a copy of the Will.  D1 has taken no action in the administration of the Deceased’s estate.  That remains so despite the caveats filed.  D1 has also failed to respond to P’s request for a copy of the Will and P’s enquiry to his lawyers in the US on the progress of the administration of the Deceased’s estate.  He has failed to file any acknowledgement of service.  I note also that a copy each of the Originating Summons and the Notice of Hearing relating to the present hearing were on 8 November 2020 personally handed to D1 by his brother D2. 

16.On D1’s replacement, P has nominated Mr Kam Chi Chiu Anthony, who is a chartered accountant.  He has consented to act.  By his affidavit of 16 December 2020, Mr Tang Wai Keong Simon, a solicitor, has testified to his belief that Mr Kam is a fit and proper person to be so appointed.  Noting the worth of the estate, I am also of the view that the appointment of a professional accountant is appropriate.

17.In the circumstances, I am of the view that a case for D1’s removal has been made out.  I make an order in terms of the draft order that has been placed before me as amended.  For avoidance of doubt, I decline P’s application for indemnity costs against D1.  It will be assessed on the usual basis if not agreed.

Mr Patrick Siu, instructed by Edwin Mok & Co, for the Plaintiff

The 1^st to 3^rd Defendants were not represented and did not appear